Supreme Court sets aside preventive detention order for ignoring bail conditions imposed by Magistrate for the same offence

Supreme Court: In a criminal appeal, filed by the wife of the detenu detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘COFEPOSA Act’), challenging the order of detention, the division bench of Sudhanshu Dhulia and K. Vinod Chandran, JJ. while noting that the detaining authority had failed to consider whether the conditions imposed by the Magistrate, when granting bail for the same offence, were adequate to restrain the detenu from engaging in further smuggling activities, allowed the appeal and set aside the detention order.

The Court noted that there was no challenge to the procedural aspects, which had been scrupulously complied with. Three grounds were raised before the Court to secure the release of the detenu, who has been behind bars for almost a year, with the arrest taking place on 05-03-2024. The first ground was that there was clear non-application of mind, as the allegations were raised under clauses (i) to (iv) of Section 3(1) of the COFEPOSA Act in an omnibus manner, which clearly revealed the bias of the detaining officer. Further, the Department had moved an application for cancellation of bail which was never pursued and importantly, the said application was not placed before the detaining authority. The detaining authority, thus, did not have the opportunity to consider the grounds raised for cancellation of bail and to consider as to why preventive detention should be made when such an application for cancellation of bail was pending before the competent Court. The final ground urged was that the impugned order referred to a conviction in a narcotics-related case, which is being challenged before the Supreme Court by way of an appeal, with the detenu having been granted bail in the meantime. The crime was registered a long time ago, and there was no live link between the conviction and the detention order. Additionally, it was argued that the proviso to Section 3(1) of the COFEPOSA Act specifically prohibits detention under that provision if an order of detention can be made under Section 3 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The Court noted that there was intelligence gathered that the detenu along with his wife were operating a syndicate involved in smuggling foreign original gold into India and selling it in the market. There were no documents produced pertaining to the cash and gold, to substantiate the legal sourcing of such goods and the same was seized by the officers of the Directorate of Revenue Intelligence who had conducted the raid. The DRI officers then, based on the statements under Section 108 of the Customs Act, 1962, raided the residential premises of the detenu. The Court noted that the mobile phones and contraband, thrown away, were recovered from the office bearers of the Society of the residential complex and further contraband was also recovered from the residential premises of the detenu.

Further, taking note of the statements under Section 108 of the Customs Act, the Court concluded that the detenu has not only been involved in smuggling of goods, but also has abetted such smuggling of goods through carriers, engaged in receiving the same, dispatching it to middle-men for keeping it concealed in their premises and effecting sale through them; who were paid a commission, which brings in the ingredients of each of the clauses under (i) to (iv) of Section 3(1)1 of the COFEPOSA Act.

After relying on Narendra Purshotam Umrao v. B.B. Gujral, (1979) 2 SCC 637, wherein it was held that the different grounds mentioned in Section 3(1) are all regarding smuggling of goods and the word smuggling includes abetting smuggling activities. Hence, the Court held that the contention of non-application of mind is not sustainable since there is always, on facts, overlapping of smuggling and its abetting.

The Court said that it has been clearly substantiated that the detenu was at the helm of affairs of the smuggling of gold, a continuing activity, wherein he had engaged carriers to carry out the act of smuggling, from whom the smuggled goods were received either by him or his wife, alone or together and then transmitted to the agents who would sell them in the market on a cash basis without invoices or bills; the proceeds of which minus the commission is received by the detenu. There is a complete chain of activity revealed which commences with the detenu and ends with him, bringing in the ingredients of all the four provisions.

The Court further noted from the detention order that the detenu was identified as a habitual offender and a key member of a well-organized syndicate involved in the smuggling and disposal of foreign gold brought illegally into India. This illegal activity was habitually carried out through his associates, without declaration to the customs authorities and without the payment of applicable duties.

The Court observed that the detenu demonstrated a consistent propensity to devise methods to smuggle foreign gold into India, operating through a well-organized smuggling network and an established mechanism involving trusted associates. The habitual indulgence in such fraudulent activities, including smuggling, abetting smuggling, transporting, concealing, and dealing in smuggled goods, was deemed to be motivated by a clear intent for illegal enrichment, with no regard for government revenue or national security.

The Court noted that the detaining authority, in its order, not only detailed the various aspects of the smuggling activities carried out by the detenu but also highlighted the specific elements of clauses (i) to (iv) of Section 3(1) of the COFEPOSA Act, justifying the decision for preventive detention. This was further validated by the large-scale seizures made from multiple locations, which provided concrete evidence supporting the detention order.

Further, the Court said that the reference to the NDPS case was only to emphasise the propensity of the detenu to involve in such illegal activities by even changing the name officially, to suppress his real identity. The involvement in a case under the NDPS Act, was not raised as a ground, anywhere in the detention order. Therefore, the Court said that it did not find any reason to hold the detention to be illegal on the ground of a mere reference to the NDPS case. The incidents which led to the impugned detention order commenced on a raid in the premises of the detenu’s associates followed up with successive raids at the residence of the detenu and other associates, from all of which locations there was recovery of huge cache of contraband.

Concerning the contention with respect to the application for cancellation of bail having not been placed before the detaining authority, while noting that the application for cancellation of bail was filed on 06-05-2024 and the detention order was passed on 09-05-2024, the Court said that there was no possibility of placing the said document before the detaining authority and the same would not amount to non-supply of a vital document, since the cancellation of bail cannot be considered as an alternative to a detention order.

The Court emphasised on the undisputed fact that both the parties are in agreement that the cancellation of bail has not been pursued by the department. The grounds for cancellation of bail could not have swayed the detaining authority this way or that way; since it was not competent on the authority to speculate as to whether the jurisdictional Court would permit such cancellation. Thus, it opined that the non-supply of the application for cancellation of bail would not be a compelling circumstance to find the order itself to be vitiated.

Therefore, the Court held that it has no reason to interfere with the preventive detention order on the grounds stated herein above.

However, as the sentinel on the qui vive the Court noted a compelling ground, which was not argued.

The Court noted that the Magistrate released the detenu on bail vide order dated 16-04-2024 on certain conditions. However, nothing is stated by the detaining authority as to why the conditions are not sufficient to prevent the detenu from engaging in further activities of smuggling; which was the specific ground on which the conditions were imposed while granting bail.

The Court highlighted that “if there is a consideration, then the reasonableness of the consideration could not have been scrutinised by us in judicial review, since we are not sitting in appeal and the provision for preventive detention provide for such a subjective satisfaction to be left untouched by the Courts. However, when there is no such consideration then we have to interfere”.

The Court further referred to Ameena Begum v. State of Telangana, (2023) 9 SCC 587, wherein the true distinction between a threat to “law and order” and acts “prejudicial to public order” was examined. It was held that preventive detention laws—an exceptional measure reserved for tackling emergent situations—ought not to have been invoked in this case as a tool for enforcement of “law and order”, especially when the existing legal framework to maintain law and order is sufficient to address the offences under consideration.

The Court stated that in the present case, it was not concerned with whether the conditions imposed by the Magistrate would have addressed the apprehension expressed by the detaining authority regarding the detenu’s potential involvement in further smuggling activities. Rather, the Court was more focused on the fact that the detaining authority did not consider the efficacy of the conditions imposed and did not express any satisfaction, however subjective, that these conditions would be insufficient to prevent the detenu from engaging in such activities.

The Court stated that both the criminal prosecution and the preventive detention were based on the same allegations of organized smuggling activities, carried out through a network revealed during successive raids at various locations, following specific information that led to the recovery of a substantial cache of contraband. When bail was granted by the jurisdictional Court, albeit with conditions, the detaining authority should have examined whether those conditions were sufficient to prevent further indulgence in identical activities, which formed the very basis for the preventive detention. Since the detention order was silent on this matter, the Court decided to intervene, noting that the detaining authority had failed to consider whether the conditions imposed by the Magistrate, when granting bail for the same offence, were adequate to restrain the detenu from engaging in further smuggling activities. As a result, the Court allowed the appeal and set aside the detention order.