UNION OF INDIA 2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA, MINISTRY OF FINANCE versus DIMPLE HAPPY DHAKAD on 18 July 2019

1. UNION OF INDIA

2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA,MINISTRY OF FINANCE

v.

DIMPLE HAPPY DHAKAD

(Criminal Appeal No. 1064 of 2019)

JULY 18, 2019

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Conservation of Foreign Exchange & Prevention ofSmuggling Activities Act, 1974 – s.3 – Customs Act, 1962 – ss.135,108 – Appellants-Union of India case that respondents smuggledhuge volume of gold weighing more than 3300 kgs. from UAE toIndia – Respondents were arrested for the offence punishable u/s.135 of the Customs Act – Orders of detention were passed on17.05.2019 against the respondents u/s.3 of COFEPOSA – Detentionorders were served on respondents-detenues on 18.05.2019 however,compilation of documents was served on detenues on 21.05.2019and 22.05.2019 – High Court quashed the detention orders on theground that the relied upon documents were not served upon thedetenues together with the detention orders and there was violationof guideline No.21 (Part A of DO’s) and guideline No.9 (Part B ofDon’ts) of “Hand Book on compilation of Instructions onCOFEPOSA matters” – On appeal, held:s.3(3) of COFEPOSAstipulates the statutory period of five days to serve the grounds ofdetention and in exceptional circumstances and for reasons to berecorded not later than fifteen days from the date of detention – Inthe instant case, the detention orders and the grounds of detentionwere served upon the detenues on 18.05.2019 – The relied upondocuments were served upon them between 20.05.2019 and22.05.2019 i.e. within five days from the date of serving detentionorders i.e. 18.05.2019 – Therefore, the statutory requirement wascomplied with – The High Court erred in quashing the detentionorders on the ground that the documents and materials were notsupplied pari passu the detention orders – In so far, “Hand Book oncompilation of Instructions on COFEPOSA matters” is concerned,

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Athe said guidelines were also fully complied with – Also, it is wellsettled principle that any executive instructions like guidelinescannot curtail the provisions of any statute or whittled down anyprovision of law – Thus, impugned judgment of the High Courtquashing the detention orders set aside.

BConservation of Foreign Exchange & Prevention ofSmuggling Activities Act, 1974 – s.3 – Appellants-Union of Indiaalleged that respondents smuggled huge volumes of gold from UAEto India – Detaining Authority-Joint Secretary (COFEPOSA) beingsatisfied that the respondents had high propensity to indulge in theprejudicial activities, passed order of detention dated 17.05.2019Cu/s.3 of the COFEPOSA Act – High Court quashed the detentionorders on the ground that the detaining authority has to recordgrounds of detention indicating the reasons with the satisfactionthat there is imminent possibility of detenue’s release from the custodyand after release, such person is likely to continue to indulge in theDprejudicial activities – On appeal, held: The detention orders dated17.05.2019 recorded the awareness of the detaining authority : (i)that the detenue is in custody; (ii) that the bail application filed bythe detenues was rejected by the Court – Merely because in thedetention orders, the detaining authority has not specificallyrecorded that the ‘detenue is likely to be released’, ‘detenue’sElikelihood of being released on bail’ and ‘if so released, he is likelyto indulge in the same prejudicial activities’ , it cannot be said thatdetaining authority did not apply its mind – The detaining authorityhad clearly recorded the antecedent of the detenues – On the factsand circumstances of the present case, the subjective satisfaction Fof the detaining authority that the detenue is likely to be releasedon bail was based on materials – On perusal of the grounds ofdetention, it is clear that detenues were indulging in smuggling ofgold and disposing of the foreign origin smuggled gold throughjewellery outlets – High Court erred in quashing the detention orders

Conclusion

merely on the ground that the detaining authority had not expresslyGrecorded the finding that there was real possibility of the detenuesbeing released on bail – Thus, order of the High Court notsustainable.

Allowing the appeals of Union of India and dismissing theappeals of detenues, the CourtH

HELD : 1. Section 3(3) of the Conservation of ForeignExchange & Prevention of Smuggling Activities Act, 1974(COFEPOSA) stipulates the statutory period of five days to servethe grounds of detention and in exceptional circumstances andfor reasons to be recorded not later than fifteen days from thedate of detention. Section 3(3) of the COFEPOSA Act thus allowsa leeway of five days at least for the grounds of detention and thedocuments relied upon in the grounds to be served on thedetenues. By the term “as soon as may be…..”, the statuteconsiders five days as a reasonable time in normal circumstancesto convey the grounds of detention to the detenues. There is nostatutory obligation on the part of the detaining authority to servethe relied upon documents on the very same day of the serviceof the order of detention. In view of the time stipulated in Section3(3) of COFEPOSA Act and the language used in Article 22(5) ofthe Constitution of India “….earliest opportunity…...”, non-servingof copies of documents together with detention order cannot bea ground to quash the detention order. [Para 19] [1169-C-E]

2. In the present case, the detention orders and the groundsof detention were served upon the detenues on 18.05.2019. Therelied upon documents were served upon them between20.05.2019 and 22.05.2019 i.e. within five days from the date ofserving of detention orders i.e. 18.05.2019. As pointed out earlier,Section 3(3) of COFEPOSA Act provides for the statutory periodof five days to serve the grounds of detention and the relied upondocuments. It was pointed out that the relied upon documentswere running into 2364 pages and fifteen detention orders werepassed against various detenues and therefore, the compilationof the documents was served on the detenues on 21.05.2019. Asrightly contended by the Additional Solicitor-General, thepreparation of copies of voluminous documents was a time-consuming process and it took time to serve the compilation ofdocuments upon the detenues and therefore, the orders wouldnot be illegal. Section 3(3) of COFEPOSA Act mandates to furnishthe documents within five days. Admittedly, the copies have beenfurnished within the said period. The statutory requirementtherefore has been complied with. [Para 21] [1170-C-F]

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A3. In the present case, the grounds of detention and reliedupon documents were served upon the detenues within five daysfrom 18.05.2019 – the date of detention orders i.e. on 21.05.2019and 22.05.2019. The term pari passu has to be read with thestatutory provision of Section 3(3) of the COFEPOSA Act whichwould mean that the grounds of detention and relied uponBdocuments are served within five days and for reasons to berecorded within fifteen days with explanation. Only when suchrule is vitiated, it can be said that they were not furnishedtogether. The High Court erred in quashing the detention orderson the ground that the documents and the material were notCsupplied pari passu the detention orders. [Para 24] [1171-C-E]

4. The “Hand Book on Compilation of Instructions onCOFEPOSA matters” is only in the nature of guidelines for theofficers of the department in dealing with COFEPOSA matters.The said guidelines direct that “care to be taken inDcommunication/service of detention order” and the grounds ofdetention and relied upon documents should be served as quicklyas possible but within the statutory time limit of five days fromthe date of detention order. The said guidelines were fully compliedwith. Also, it is well-settled principle that any executiveinstruction like the guidelines cannot curtail the provisions ofEany statute or whittled down any provision of law. [Para 26][1171-G-H; 1172-A]

5. It is well settled that the order of detention can be validlypassed against a person in custody and for that purpose, it isnecessary that the grounds of detention must show that theFdetaining authority was aware of the fact that the detenu wasalready in custody. The detaining authority must be furthersatisfied that the detenu is likely to be released from custodyand the nature of activities of the detenu indicate that if he isreleased, he is likely to indulge in such prejudicial activities andGtherefore, it is necessary to detain him in order to prevent himfrom engaging in such activities. [Para 30] [1173-C]

6. In the light of the well settled principles, in the presentcase, whether there was awareness in the mind of the detainingauthority that detenu is in custody and he had reason to believe H

that detenu is likely to be released on bail and if so released, hewould continue to indulge in prejudicial activities. In the presentcase, the detention orders dated 17.05.2019 record the awarenessof the detaining authority:- (i) that the detenu is in custody; (ii)that the bail application filed by the detenues have been rejectedby the Court. Of course, in the detention orders, the detainingauthority has not specifically recorded that the “detenu is likely tobe released”. It cannot be said that the detaining authority hasnot applied its mind merely on the ground that in the detentionorders, it is not expressly stated as to the “detenue’s likelihoodof being released on bail” and “if so released, he is likely toindulge in the same prejudicial activities”. But the detainingauthority has clearly recorded the antecedent of the detenuesand its satisfaction that detenues have the high propensity tocommit such offences in future. [Para 35] [1175-D-G]

7. The satisfaction of the detaining authority that the detenumay be released on bail cannot be ipse dixit of the detainingauthority. On the facts and circumstances of the present case,the subjective satisfaction of the detaining authority that thedetenu is likely to be released on bail is based on the materials.A reading of the grounds of detention clearly indicates that onedetenu has been indulging in smuggling gold and operatingsyndicate in coordination with others and habitually committingthe same unmindful of the revenue loss and the impact on theeconomy of the nation. Likewise, the detention order qua theother detenu refers to the role played by him in receiving thegold and disposing of the foreign origin smuggled gold throughhis multiple jewellery outlets and his relatives. The High Courterred in quashing the detention orders merely on the groundthat the detaining authority has not expressly recorded the findingthat there was real possibility of the detenues being released onbail which is in violation of the principles laid down in Kamarunnisaand other judgments and Guidelines No.24. The order of the HighCourt quashing the detention orders on those grounds cannotbe sustained. [Para 37] [1176-B-E]

Sophia Gulam Mohd. Bham v. State of Maharashtraand Others (1999) 6 SCC 593 : [1999] 1 Suppl. SCR

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SUPREME COURT REPORTS

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421 ; Icchu Devi Choraria v. Union of India and Others(1980) 4 SCC 531 : [1981] 1 SCR 640 ; MehdiMohamed Joudi v. State of Maharashtra and others(1981) 2 SCC 358 ; Jasbir Singh v. Lt. Governor, Delhiand another (1999) 4 SCC 228 : [1999] 2 SCR 706 ;Senthamilselvi v. State of T.N. and Another (2006) 5SCC 676 : [2006] 3 Suppl. SCR 24 ; Naresh KumarGoyal v. Union of India and others (2005) 8 SCC276 : [2005] 4 Suppl. SCR 17 ; State of Maharashtraand others v. Bhaurao Punjabrao Gawande (2008) 3SCC 613 : [2008] 3 SCR 967 – relied on.

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Virendra Singh v. State of Maharashtra (1981) 4 SCC562 ; Ana Carelina D’souza (Smt.) v. Union of Indiaand others AIR 1981 SC 1620 – held inapplicable.

Kamarunnisa v. Union of India (1991) 1 SCC 128 :[1990] 1 Suppl. SCR 457 ; Rekha v. State of Tamil NaduDthrough Secretary to Government and Another (2011)5 SCC 244 : [2011] 4 SCR 740 ; KamleshkumarIshwardas Patel v. Union of India and others (1995) 4SCC 51 : [1995] 3 SCR 279 ; Vijay Kumar v. Union ofIndia and others (1988) 2 SCC 57 ; Kamarunnisa v.EUnion of India and Another (1991) 1 SCC 128 : [1990]1 Suppl. SCR 457 ; Union of India v. Paul Manickamand Another (2003) 8 SCC 342 : [2003] 4 Suppl. SCR618 ; Huidrom Konungjao Singh v. State of Manipurand Others (2012) 7 SCC 181 : [2012] 5 SCR 1173 ;Dharmendra Suganchand Chelawat v. Union of IndiaF(1990) 1 SCC 746 : [1990] 1 SCR 303 ; Veeramani v.State of T.N. (1994) 2 SCC 337 : [1994] 1 SCR 616– referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1064 of 2019.

From the Judgment and Order dated 25.06.2019 of the High Courtof Judicature at Bombay in Criminal Writ Petition No. 2844 of 2019.

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Criminal Appeal Nos. 1066, 1067, 1065 of 2019.

K. M. Natraj, ASG, Mukul Rohatgi, Vikram Chaudhri, Sr. Advs.,Ms. Binu Tamta, Rajat Nair, Sharat Nambiar, Ms. Aruna Pai, KanuAgrawal, Rajeev Ranjan, Shantnu Sharma, B. Krishna Prasad, SaurabhKirpal, Sanjay Agarwal, Ashish Batra, Wattan Sharma, Sarthak Sachdev,Harshit Sethi, Gautam Awasthi, Advs. for the appearing parties.

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The Judgment of the Court was delivered by G

R. BANUMATHI, J. 1. Leave granted.

2. These appeals arise out of the judgment dated 25.06.2019 passedby the High Court of Judicature at Bombay in W.P. (Crl.) Nos.2843 and2844 of 2019 in and by which the High Court has quashed the detentionorders dated 17.05.2019 passed against the detenues. The appellants-Union of India in appeals arising out of SLP(Crl.) Nos.5459 and 5460 of H

A2019 have challenged the impugned judgment quashing the detentionorders. While quashing the detention orders, the High Court has stayedthe operation of its own order for a period of one week to enable theappellants to approach the Supreme Court. Being aggrieved by the stay,the detenues-respondents have preferred appeals arising out of SLP(Crl.)Nos.5396 and 5408 of 2019 before this Court. All the appeals shall standBdisposed of by this common judgment.

3. The facts giving rise to these appeals are that pursuant to aninvestigation by the office of Directorate of Revenue Intelligence in thematter of smuggling of foreign origin gold by a syndicate of personsfrom UAE to India. On 28.03.2019 search and interception of two vehiclesCi.e. a Honda Activa Scooter and a Honda City car was held. It wasnoticed that there were two persons Abdul Ahad Zarodarwala and ShaikhAbdul Ahad, employee of Zarodarwala. Search of the vehicles resultedin recovery of 75 kgs of gold in the form of five circular discs valued atRs.24.5 crores. Follow-up searches were conducted in the offices andDresidential premises of the connected persons resulted in further recoveryof 110 kgs of gold and currency amounting to Rs.1.81 crores. ShoebZarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad weresummoned and their statements were recorded and they are alleged tohave made statement regarding receiving of smuggled gold fromrespondent detenu-Nisar Pallathukadavil Aliyar.E

4. Facts in SLP (Crl.) No. 5408 of 2018: Case of the appellantsis that the respondent-detenu Nisar Pallathukadavil Aliyar is a full-timeorganised smuggler of large quantities of gold and is the mastermind ofthe smuggling syndicate and has been smuggling gold into India since2016. It is stated that two companies, viz. M/s. Al Ramz Metal ScrapFTrading and M/s. Blue Sea Metal FZE were floated and registered bythe appellant in the name of one Kalpesh Nanda for exporting metalscrap to India which is alleged to cover cargo to smuggle gold. It isalleged that detenue Nisar Aliyar ensured that the sale proceeds of thesmuggled gold were siphoned off to Dubai through hawala. It is allegedGthat Nisar Aliyar created a wide network of people to look after theoperations at every stage and was smuggling gold into India since 2016and is alleged to have smuggled more than 3300 kgs of gold havingapproximate value of Rs.1000 crores and is alleged to be a mastermindof the smuggling syndicate. Detenu Nisar Aliyar was arrested on31.03.2019 for commission of offences punishable under Section 135 ofHthe Customs Act, 1962 and his statement was recorded.

5. Facts in SLP (Crl.) No. 5396 of 2019: Detenu-HappyArvindkumar Dhakad is a Director of Bullion Trading Firm and is ajeweller. As per the appellants, investigations revealed that the husbandof the detenu Happy Dhakad was directly dealt with Shoeb Zarodarwalaand Jignesh Solanki who are his relatives by buying gold from NisarAliyar. Detenu Happy Dhakad is alleged to have abetted Nisar Aliyar inhis illegal activities of receiving and concealing smuggled gold anddisposing it off through his jewellery outlets and is said to have played avital role. It is alleged that through multiple jewellery outlets owned byhim and his relatives, detenu-Happy Dhakad disposed of the foreignorigin smuggled gold easily. Follow up searches were conducted at variousoffices and residential premises of persons found connected withsmuggling of gold. A total quantity of 110 kgs of gold was recoveredfrom these premises. Thirty-one pieces of gold carrying a total weightof 20.4 kgs and 11.5 kgs of foreign marked gold bars totally valued atRs.10.21 crores, Rs. 28.53 lakhs cash and unaccounted cash of Rs.28.53lakhs and Rs.44.50 lakhs were seized respectively from the office andresidence of detenu Happy Dhakad and he did not have any documentsfor his possession of gold. In his statement recorded on 29.03.2019,detenu Happy Dhakad is alleged to have accepted that 20.4 kgs of goldrecovered from his premises was from the smuggled gold supplied tohim by appellant Nisar Aliyar and the other 11.5 kgs of foreign markedgold was procured from other sources. Detenu Happy Dhakad wasarrested on 29.03.2019 for the offence punishable under Section 135 ofthe Customs Act, 1962 and was remanded to judicial custody.

6. The Detaining Authority-Joint Secretary (COFEPOSA), onbeing satisfied that the detenues have high propensity to indulge in theprejudicial activities, with a view to prevent them from smuggling andconcealing smuggled gold in future, passed the orders of detention dated17.05.2019 under Section 3 of the Conservation of Foreign Exchange &Prevention of Smuggling Activities Act, 1974 (COFEPOSA). Thedetention orders and the grounds of detention were served on thedetenues on 18.05.2019. The copies of the relied upon documents wereserved on the detenues on 21.05.2019 and 22.05.2019.

7. The detention orders dated 17.05.2019 was assailed by thedetenues by filing writ petitions before the High Court. The High Courtvide interim order dated 04.06.2019 directed the appellant to considerthe writ petitions as a representation of the detenues. Accordingly, therepresentation was considered and the same was rejected by the Joint AB

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ASecretary (COFEPOSA) who did not find any justification in modificationof the detention orders.

8. By the impugned order dated 25.06.2019, the High Courtquashed the detention orders by holding that there was no application ofmind by the Detaining Authority in passing the detention orders. TheBHigh Court held that as per the principles laid down in Kamarunnisa v.Union of India (1991) 1 SCC 128, there was no application of mindindicating the satisfaction of the detaining authority that there wasimminent possibility of detenues being released on bail. The High Courtalso held that though the detention orders and grounds of detention wereserved on the detenues on 18.05.2019, the detenues were not servedCwith the copies of relied upon documents and material particulars alongwith the orders of detention and grounds of detention and there wasviolation of Article 22(5) of the Constitution of India and violation ofGuideline No.21 of “Hand Book on Compilation of Instructions onCOFEPOSA matters”. The High Court did not accept the contentionDof the Department that the preparation of copies of documents and bulkof records did not enable the respondents to serve the relied upondocuments simultaneously with the orders of detention upon therespondents. Holding that the preventive detention was in violation ofArticles 21 and 22(5) of the Constitution of India and the Guidelines, theHigh Court quashed the detention orders dated 17.05.2019. As pointedEout earlier, the High Court, however, stayed the operation of its ownjudgment for a period of one week which we have extended.

9. Mr. K.M. Natraj, learned Additional Solicitor-General appearingfor the appellant-Union of India has submitted that the orders of detentionand the grounds were served on the detenues on 18.05.2019 and sinceFthe documents were voluminous containing 2364 pages, the copies ofwhich were served on the detenues on 21.05.2019 and 22.05.2019respectively is well within the time period stipulated in Section 3(3) ofthe COFEPOSA Act. While so, it was submitted that the High Courtwas not right in quashing the detention orders on the ground that theGrelied upon documents were not served upon the detenues together withthe detention orders and that there was violation of Guideline No. 21(Part A of Do’s) and Guideline No. 9 (Part B of Don’ts) which is only aguideline to the officers. The learned Additional Solicitor-General furthersubmitted that “Hand Book on compilation of instructions onCOFEPOSA matters from July 2001 to February, 2007” is only inH

the nature of guidelines for the officers of the department in dealing withCOFEPOSA matters and the said guidelines itself direct that care to betaken in communication/service of the detention orders, grounds ofdetention and relied upon documents and the statutory period of servicelaid down in the COFEPOSA Act. The learned Additional Solicitor-General further submitted that based on the materials placed before thedetaining authority, the detaining authority satisfied itself as to thelikelihood of the detenues being released on bail and while so, the HighCourt erred in quashing the detention orders on the ground that in thedetention orders “there was no finding that there was real possibilityof their being released on bail by the Court”. The learned AdditionalSolicitor General urged that the present case involves huge volume ofgold systematically smuggled into the country in the last three years andmore than 3300 kgs of gold has been brought during the period from July2018 to March 2019 and the detaining authority after considering thatthe detenues have propensity to indulge in the offence passed thedetention orders and such subjective satisfaction of the detaining authoritycannot be lightly interfered with by the Court.

10. Mr. Mukul Rohatgi, learned senior counsel appearing for thedetenues relied upon number of judgments and contended that the groundsof detention and relied upon documents are to be served on the detenuespari passu and in the instant case, serving of the relied upon documentsand grounds of detention piecemeal deprives the detenues from makingeffective representation. Taking us through the grounds of detention, thelearned senior counsel submitted that the detaining authority has recordedits awareness only as to the custody of the detenues and the dismissal ofthe bail application and the satisfaction of the detaining authority as tothe likelihood of the detenues being released on bail is significantly absentand the absence of such satisfaction vitiates the detention orders. Reliancewas placed upon Kamarunnisa and other judgments. The learned seniorcounsel further submitted that it was not possible for the detaining authorityto pass all fifteen detention orders in one day after perusal of 2364 pagesof documents describing role of each individual which clearly showsnon-application of mind by the detaining authority. Placing reliance uponRekha v. State of Tamil Nadu through Secretary to Government andAnother (2011) 5 SCC 244, it was submitted that in cases of preventivedetention orders, procedural requirements are the safeguards and non-compliance of the procedural requirements vitiates the detention orders.It was submitted that upon consideration, the High Court has rightly AB

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Aquashed the detention orders that the detention order is an infraction ofArticle 22(5) of the Constitution of India and non-compliance of theGuidelines of “Hand Book on compilation of instructions onCOFEPOSA matters” and the impugned order warrants no interference.

11. We have carefully considered the rival submissions and perusedBthe impugned order and other materials on record. We have also carefullygone through the various judgments relied upon by both sides. Thefollowing points arise for consideration in these appeals:-

(i) Whether the orders of detention were vitiated on the groundthat relied upon documents were not served along withCthe orders of detention and grounds of detention? Whetherthere was sufficient compliance of the provisions of Article22(5) of the Constitution of India and Section 3(3) of theCOFEPOSA Act?

(ii) Whether the High Court was right in quashing the detentionDorders merely on the ground that the detaining authorityhas not expressly satisfied itself about the imminentpossibility of the detenues being released on bail?

12. The present case relates to alleged smuggling of huge volumeof gold of more than 3300 kgs of gold camouflaging it with brass metalEscrap. Detenue Nisar Aliyar is stated to be the mastermind and kingpinof the syndicate who along with others smuggled gold from UAE toIndia. Detenu Happy Dhakad abetted smuggling by receiving smuggledgold from Nisar Aliyar and his group and disposing them off throughjewellery outlets run by him and his relatives. The respondents werearrested for the offence punishable under Section 135 of the CustomsFAct on 29.03.2019 and their statements were recorded under Section108 of the Customs Act. The orders of detention were issued on17.05.2019. The detention orders along with grounds of detention wereserved on the detenues on 18.05.2019. Since the documents were runninginto 2364 pages and there were fifteen detention orders passed againstGvarious detenues, the compilation of documents was served on detenueson 21.05.2019 and 22.05.2019 respectively. Section 3(3) of COFEPOSAAct states that “the detenue should be communicated with the orderof detention and the grounds as soon as may be after detaining himbut ordinarily not later than five days……” According to the appellants,in the present case, the orders of detention and the grounds were servedHon the detenues on 18.05.2019. However, since the documents were voluminous running about 2364 pages, the same was served on thedetenues on 21.05.2019 and 22.05.2019 respectively which, of course,was within the time period stipulated under Section 3(3) of the Act.

13. In the detention orders dated 17.05.2019, though it wasexpressly mentioned that the documents mentioned in the list relied uponby the detaining authority are served upon the detenues along with thedetention orders, the relied upon documents were served upon thedetenues between 20.05.2019 and 22.05.2019. The High Court quashedthe detention orders dated 17.05.2019 on the ground that on 18.05.2019,the detention orders and the grounds of detention were served on thedetenues; but the relied upon documents and other material particularswere not served upon the detenues together with the grounds of detention.After extracting the relevant portion of the detention orders, the HighCourt held that though it was stated that the relied upon documentswere served upon the detenues along with the detention orders, actuallythey were not served on the detenues together with the detention ordersand the grounds of detention and while so, the appellants cannot haverecourse to Section 3(3) of the COFEPOSA Act, 1974. The relevantportion of the detention orders where the detaining authority has statedthat the relied upon documents are being served upon the detenues alongwith the grounds of detention reads as under:- “9. While passing the Detention Order under the provisions ofthe Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974, I have relied upon the documentsmentioned in the enclosed list, which are also being served to youalong with the Grounds of Detention.

10. You i.e. Shri Happy Arvindkumar Dhakad have the right torepresent against your detention to the Detaining Authority, to theCentral Government as well as to the Advisory Board. If youwish to avail this right, you should send your representation throughthe Jail Authorities where you are detained, in the manner indicatedbelow…” [underlining added]

14. Guideline No.21 of Do’s of “Do’s and Don’ts in handlingCOFEPOSA matters”, stipulates that the grounds of detention and reliedupon documents must be invariably served together on the detenu(including the copies translated into the language known to and understoodby the detenu, wherever necessary) and these should be served as quicklyas possible but within the statutory time limit of five days from the date A

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Aof his detention. In Part-B dealing with Don’ts of “Do’s and Don’ts inhandling COFEPOSA matters”, Guideline No.9 lays down that thegrounds of detention and relied upon documents should not be given ondifferent dates. For quashing it on the ground of non-serving of thegrounds of detention and relied upon documents along with the detentionorders, the High Court held that there was violation of Guideline No.21Bin Part-A dealing with Do’s of “Do’s and Don’ts in handlingCOFEPOSA matters”, and Guideline No.9 in Part-B dealing with theDon’ts of “Do’s and Don’ts in handling COFEPOSA matters”.Guideline No.21 and Guideline No.9 dealing with “Do’s and Don’ts inhandling COFEPOSA matters”, read as under:-C“Do’s and Don’ts in handling COFEPOSA matters A.Do’s

………

21. The Grounds of detention and the relied upon documentsDbe invariably served together to the detenu (including thecopies translated into the language known to and understoodby the detenu, wherever necessary) and these should beserved as quickly as possible but within the statutory timelimit of five days from the date of his detention.

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9. Grounds of detention and relied upon documents shouldnot be given on different dates.”

F15. Contention of the learned senior counsel for the respondentsis that though the detention orders served upon the detenues states thatthe relied upon documents mentioned in the list are also being servedupon the detenues along with the grounds of detention, the relied upondocuments were not actually served upon the detenues and such non-application of mind of the detaining authority vitiates the detention ordersGapart from depriving the detenu from making effective representation.The learned senior counsel further submitted that there is clear breachof the guidelines containing Do’s and Don’ts and the respondents weredeprived of his right of personal liberty without following the procedureestablished by law. The learned senior counsel submitted that the High H

Court relied upon its own judgments of co-ordinate Benches in CriminalWrit Petition Nos.2/1996, 4/1996, 824/1995 and 690/1996 and rightlyheld that the relied upon documents were not served together with theorders of detention and grounds of detention on 18.05.2019 and hence,there is no question of the appellants taking recourse to Section 3(3) ofthe COFEPOSA Act.

16. In support of his contention that the detention orders are liableto be quashed on the ground that the documents and materials formingbasis of the detention orders had not been supplied, the learned seniorcounsel for the respondents placed reliance upon Virendra Singh v.State of Maharashtra (1981) 4 SCC 562 and Ana Carelina D’souza(Smt.) v. Union of India and others AIR 1981 SC 1620 and numberof other judgments. It was submitted that the High Court rightly reliedupon Kamleshkumar Ishwardas Patel v. Union of India and others(1995) 4 SCC 51 wherein the Supreme Court had observed that whiledischarging the constitutional obligation to enforce the fundamental rightsof the people, more particularly, the right to personal liberty, the gravityof the allegations cannot influence the process and that to enforce thefundamental rights of the people, more particularly, the right to personalliberty, certain minimum procedural safeguards are required to be“zealously watched and enforced by the court”.

17. In Virendra Singh, the order of detention was passed on09.10.1980 and the grounds of detention and other documents andmaterials were supplied to the detenu on 01.11.1980 when he wasarrested; but without the documents and the materials which were laterserved on 05.11.1980. The Supreme Court quashed the detention orderand held as under:- “1. …..Admittedly, the order of detention was passed on October9, 1980 and the grounds were supplied to the detenu on November1, 1980 when he was arrested but without the documents andmaterials which were supplied on November 5, 1980. The detenumade a representation on November 13, 1980 which was disposedof on December 13, 1980. In this case as the documents and thematerials forming the basis of the order of detention had not beensupplied to the detenu along with the order of detention when thesame was served on him, the order is rendered void as held bythis Court in Icchu Devi Choraria v. Union of India (1980) 4

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ASCC 531 and in Shalini Soni v. Union of India (1980) 4 SCC544. Moreover, the order of detention suffers from anotherinfirmity, namely, that the representation made by the detenu wasdisposed of by the detaining authority more than a month after therepresentation was sent to it. No reasonable explanation for thisdelay has been given which violates the constitutional safeguardsBenshrined under Article 22(5) and makes the continued detentionof the detenu void. For these reasons, therefore, we allow thispetition and direct the detenu to be released forthwith.”

By a reading of the above that as there was a long gap betweenthe order of detention and the arrest and also inordinate delay inCconsidering and disposal of the representation, the Supreme Courtquashed the detention order.

18. In yet another decision relied upon by the learned counsel forthe respondents i.e. Ana Carelina D’souza, facts are not clear. Thedetention order was quashed mainly on the ground of non-supply of theDrelied upon documents along with the grounds of detention. It is notknown whether the statutory time limit of five days was complied withor not. It has been held by the Supreme Court in several cases thatmere service of the grounds of detention is not in compliance of themandatory provision of Article 22(5) of the Constitution of India unlessEthe grounds are accompanied with the documents which are referred toare relied on the grounds of detention. In the decisions relied upon bythe learned senior counsel for the respondents, the detention order wasquashed in the facts and circumstances of those cases viz. (i) that therelied upon documents were served beyond the statutory mandate offive days; and (ii) that there was inordinate delay in disposal of theFrepresentation. The decisions relied upon by the learned senior counselfor the respondents being in the factual context of respective cases arenot applicable to the present case.

19. Section 3(3) of the Conservation of Foreign Exchange &Prevention of Smuggling Activities Act, 1974 (COFEPOSA) states thatGthe detenu should be communicated with the order of detention and thegrounds ‘as soon as may be’ after detaining him ‘but ordinarily not laterthan five days and in exceptional cases and for reasons to be recordedin writing not later than fifteen days from the date of detention. Sub-section (3) of Section 3 of the COFEPOSA Act, 1974 reads as under:- H

“3. Power to make orders detaining certain persons.

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(1) + (2)……..

(3) For the purposes of clause (5) of Article 22 of the Constitution,the communication to a person detained in pursuance of a detentionorder of the grounds on which the order has been made shall bemade as soon as may be after the detention, but ordinarily notlater than five days, and in exceptional circumstances and forreasons to be recorded in writing, not later than fifteen days, fromthe date of detention.” [underlining added]

Section 3(3) of the COFEPOSA Act stipulates the statutory periodof five days to serve the grounds of detention and in exceptionalcircumstances and for reasons to be recorded not later than fifteen daysfrom the date of detention. Section 3(3) of the COFEPOSA Act thusallows a leeway of five days at least for the grounds of detention and thedocuments relied upon in the grounds to be served on the detenues. Bythe term “as soon as may be…..”, the statute considers five days as areasonable time in normal circumstances to convey the grounds ofdetention to the detenues. There is no statutory obligation on the part ofthe detaining authority to serve the relied upon documents on the verysame day of the service of the order of detention. In view of the timestipulated in Section 3(3) of COFEPOSA Act and the language used inArticle 22(5) of the Constitution of India “….earliest opportunity…...”,non-serving of copies of documents together with detention order cannotbe a ground to quash the detention order.

20. In the case of Sophia Gulam Mohd. Bham v. State ofMaharashtra and Others (1999) 6 SCC 593 , the Supreme Courthas held that “the use of the words “as soon as may be…..” indicate apositive action on the part of the detaining authority in supplying thegrounds of detention and that there should not be any delay in supplyingthe grounds on which the order of detention was based”. Likewise, itwas held that “the use of the terms “….earliest opportunity….” inArticle 22(5) also carry the same philosophy that there should not beany delay in affording adequate opportunity to the detenu of making arepresentation against the order of detention”. In Icchu Devi Chorariav. Union of India and Others (1980) 4 SCC 531, the Supreme Courtheld that “clause (5) of Article 22 and sub-section (3) of Section 3 of the A

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ACOFEPOSA Act provide that the grounds of detention should becommunicated to the detenu within five or fifteen days, as the case maybe”. The expression “as soon as may be” cannot be read in isolationfrom the phrase “but ordinarily not later than five days”. [Vide JasbirSingh v. Lt. Governor, Delhi and another (1999) 4 SCC 228]. On aproper construction of clause (5) of Article 22 read with Section 3(3) ofBthe COFEPOSA Act, 1974, it is necessary that documents and othermaterials relied upon in the grounds of detention should be furnished tothe detenu along with grounds of detention or in any event not later thanfive days and in exceptional circumstances and for reasons to be recordedin writing not later than fifteen days from the date of detention.C

21. In the present case, the detention orders and the grounds ofdetention were served upon the detenues on 18.05.2019. The reliedupon documents were served upon them between 20.05.2019 and22.05.2019 i.e. within five days from the date of serving of detentionorders i.e. 18.05.2019. As pointed out earlier, Section 3(3) of COFEPOSADAct provides for the statutory period of five days to serve the grounds ofdetention and the relied upon documents. It was pointed out that therelied upon documents were running into 2364 pages and fifteen detentionorders were passed against various detenues and therefore, thecompilation of the documents was served on the detenues on 21.05.2019.As rightly contended by the learned Additional Solicitor-General, theEpreparation of copies of voluminous documents was a time-consumingprocess and it took time to serve the compilation of documents upon thedetenues and therefore, the orders would not be illegal. Section 3(3) ofCOFEPOSA Act mandates to furnish the documents within five days.Admittedly, the copies have been furnished within the said period. TheFstatutory requirement therefore has been complied with.

22. There is no statutory obligation on the part of the detainingauthority to serve the grounds of detention and relied upon documentson the very same day; more so, when there is nothing to show that thedetaining authority was guilty of inaction or negligence. The principleGlaid down by the Supreme Court in Mehdi Mohamed Joudi v. State ofMaharashtra and others (1981) 2 SCC 358 that non-supply ofdocuments and material pari passu would vitiate the detention ordermust be understood in the context of Section 3(3) of the COFEPOSAAct. Serving of detention order, grounds of detention and supply ofdocuments must be contemporaneous as mandated within the time limitH

of five days stipulated under Section 3(3) of the COFEPOSA Act andArticle 22(5) of the Constitution of India.

23. In Jasbir Singh v. Lt. Governor, Delhi and another (1999)4 SCC 228, it was held that for computing the period of five days, thedate on which the detention order was served has to be excluded. In thecase in hand, therefore for computing the period of five days, the date18.05.2019 has to be excluded. The grounds of detention and the reliedupon documents have been served upon the detenues from 20.05.2019to 22.05.2019 which is well within the statutory period of five days andthere is no infraction of sub-section (3) of Section 3 of the COFEPOSAAct.

24. In the present case, the grounds of detention and relied upondocuments were served upon the detenues within five days from18.05.2019 – the date of detention orders i.e. on 21.05.2019 and22.05.2019. The term pari passu has to be read with the statutoryprovision of Section 3(3) of the COFEPOSA Act which would meanthat the grounds of detention and relied upon documents are servedwithin five days and for reasons to be recorded within fifteen days withexplanation. Only when such rule is vitiated, it can be said that theywere not furnished together. The High Court erred in quashing thedetention orders on the ground that the documents and the material werenot supplied pari passu the detention orders.

25. The “Hand Book on Compilation of Instructions onCOFEPOSA matters” from July 2001 to February 2007 – containinstructions of do’s and don’ts to be followed relating to COFEPOSAmatters. Referring to Guideline No.21 (Part A of Don’s and Don’ts inhandling COFEPOSA matters) and Guideline No.9 (Part B of Don’sand Don’ts in handling COFEPOSA matters), the High Court held thatthere is violation of the guidelines which would vitiate the detention orders.

26. The “Hand Book on Compilation of Instructions onCOFEPOSA matters” is only in the nature of guidelines for the officersof the department in dealing with COFEPOSA matters. The saidguidelines direct that “care to be taken in communication/service ofdetention order” and the grounds of detention and relied upon documentsshould be served as quickly as possible but within the statutory time limitof five days from the date of detention order. The said guidelines werefully complied with. Also, it is well-settled principle that any executive A

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Ainstruction like the guidelines cannot curtail the provisions of any statuteor whittled down any provision of law.

27. The High Court quashed the detention orders on yet anotherground that the detaining authority has to record grounds of detentionindicating the reasons with the satisfaction that there is imminentBpossibility of detenue’s release from the custody and after release, suchperson is likely to continue to indulge in the prejudicial activities and thedetention orders nowhere expressly mention the satisfaction of thedetaining authority as to the imminent possibility of the detenue’s releaseon bail and continue to indulge in the prejudicial activities. The HighCourt held that the tests laid down in Kamrunnissa are not satisfied.CThe High Court held that mere role played by detenu Nisar Aliyar insmuggling gold or role of another detenu Dimple Happy Dhakad in aidingand abetting Nisar Aliyar in the illegal activities of smuggling do notdispose with the necessity of recording satisfaction that there is noimminent possibility of the detenues being released on bail.

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28. Drawing our attention to the grounds of detention, the learnedsenior counsel for the respondents has submitted that the detainingauthority has recorded its awareness as to the custody of the detenuesand the dismissal of their bail applications. It was submitted that thesatisfaction of the detaining authority as to the imminent possibility ofEthe detenues being released on bail is significantly absent which vitiatesthe detention orders. Placing reliance upon Kamrunnissa, it wassubmitted that when the detention orders do not record the satisfactionof the detaining authority as to the possibility of detenues being releasedon bail and if so released, there is likelihood of their indulging in prejudicialactivities; and absence of finding as to the possibility of the detenu beingFreleased on bail would vitiate the detention order and the High Courtrightly quashed the detention orders. Placing reliance upon number ofjudgments, the learned senior counsel submitted that the preventivedetention order should not be passed merely to pre-empt or circumventthe enlargement on bail.

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29. The learned Additional Solicitor-General has submitted thatthe detaining authority was aware that the detenu was already in custodyup to 20.05.2019 which is clearly recorded in the grounds of detention.Taking us through the grounds of detention, the learned AdditionalSolicitor-General urged that the detaining authority has succinctly brought H

out the role of the detenu in the smuggling syndicate and thereafterrecorded the satisfaction as to detenu’s propensity and likelihood of hisindulging in the smuggling activity and the subjective satisfaction of thedetaining authority based upon the material particulars cannot beinterfered with by the court. In support of his contention, the learnedASG placed reliance upon Vijay Kumar v. Union of India and others(1988) 2 SCC 57 and other judgments.

30. It is well settled that the order of detention can be validlypassed against a person in custody and for that purpose, it is necessarythat the grounds of detention must show that the detaining authority wasaware of the fact that the detenu was already in custody. The detainingauthority must be further satisfied that the detenu is likely to be releasedfrom custody and the nature of activities of the detenu indicate that if heis released, he is likely to indulge in such prejudicial activities andtherefore, it is necessary to detain him in order to prevent him fromengaging in such activities.

31. After reviewing all the decisions, the law on the point wasenunciated in Kamarunnisa v. Union of India and Another (1991) 1SCC 128 where the Supreme Court held as under:- “13. From the catena of decisions referred to above it seemsclear to us that even in the case of a person in custody a detentionorder can validly be passed (1) if the authority passing the order isaware of the fact that he is actually in custody; (2) if he hasreason to believe on the basis of reliable material placed beforehim (a) that there is a real possibility of his being released on bail,and (b) that on being so released he would in all probability indulgein prejudicial activity and (3) if it is felt essential to detain him toprevent him from so doing. If the authority passes an order afterrecording his satisfaction in this behalf, such an order cannot bestruck down on the ground that the proper course for the authoritywas to oppose the bail and if bail is granted notwithstanding suchopposition, to question it before a higher court. What this Courtstated in the case of Ramesh Yadav (1985) 4 SCC 232 was thatordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which areessentially criminal in nature and can be dealt with under theordinary law. It seems to us well settled that even in a case where A

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1174SUPREME COURT REPORTS

[2019] 8 S.C.R.

Aa person is in custody, if the facts and circumstances of the caseso demand, resort can be had to the law of preventive detention.

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32. The same principle was reiterated in Union of India v. PaulManickam and Another (2003) 8 SCC 342 where the Supreme CourtBheld as under:-

“14. …….. Where detention orders are passed in relation topersons who are already in jail under some other laws, the detainingauthorities should apply their mind and show their awareness inthis regard in the grounds of detention, the chances of release ofCsuch persons on bail. The necessity of keeping such persons indetention under the preventive detention laws has to be clearlyindicated. Subsisting custody of the detenu by itself does notinvalidate an order of his preventive detention, and the decision inthis regard must depend on the facts of the particular case.Preventive detention being necessary to prevent the detenu fromDacting in any manner prejudicial to the security of the State or tothe maintenance of public order or economic stability etc. ordinarily,it is not needed when the detenu is already in custody. The detainingauthority must show its awareness to the fact of subsisting custodyof the detenu and take that factor into account while making theEorder. If the detaining authority is reasonably satisfied with cogentmaterials that there is likelihood of his release and in view of hisantecedent activities which are proximate in point of time, he mustbe detained in order to prevent him from indulging in such prejudicialactivities, the detention order can be validly made.Where thedetention order in respect of a person already in custody does notFindicate that the detenu was likely to be released on bail, the orderwould be vitiated. (See N. Meera Rani v. Govt. of T.N. (1989) 4SCC 418 and Dharmendra Suganchand Chelawat v. Union ofIndia (1990) 1 SCC 746) The point was gone into detail inKamarunnissa v. Union of India (1991) 1 SCC 128. …...”G[underlining added]

33. Whether a person in jail can be detained under the detentionlaw has been the subject matter for consideration before this Court timeand again. In Huidrom Konungjao Singh v. State of Manipur andOthers (2012) 7 SCC 181, the Supreme Court referred to earlier H

decisions including Dharmendra Suganchand Chelawat v. Union ofIndia (1990) 1 SCC 746 and reiterated that if the detaining authority issatisfied that taking into account the nature of the antecedent activitiesof the detenu, it is likely that after his release from custody he wouldindulge in prejudicial activities and it is necessary to detain him in orderto prevent him from engaging in such activities.

34. In Veeramani v. State of T.N. (1994) 2 SCC 337 in para (6),the Supreme Court held as under:- “6. From the catena of decisions of this Court it is clear that evenin the case of a person in custody, a detention order can validly bepassed if the authority passing the order is aware of the fact thathe is actually in custody; if he has reason to believe on the basisof the reliable material that there is a possibility of his being releasedon bail and that on being so released, the detenu would in allprobabilities indulge in prejudicial activities and if the authoritypasses an order after recording his satisfaction the same cannotbe struck down.”

35. In the light of the well settled principles, we have to see, in thepresent case, whether there was awareness in the mind of the detainingauthority that detenu is in custody and he had reason to believe thatdetenu is likely to be released on bail and if so released, he would continueto indulge in prejudicial activities. In the present case, the detention ordersdated 17.05.2019 record the awareness of the detaining authority:- (i)that the detenu is in custody; (ii) that the bail application filed by thedetenues have been rejected by the Court. Of course, in the detentionorders, the detaining authority has not specifically recorded that the“detenu is likely to be released”. It cannot be said that the detainingauthority has not applied its mind merely on the ground that in the detentionorders, it is not expressly stated as to the “detenue’s likelihood of beingreleased on bail” and “if so released, he is likely to indulge in the sameprejudicial activities”. But the detaining authority has clearly recordedthe antecedent of the detenues and its satisfaction that detenues HappyDhakad and Nisar Aliyar have the high propensity to commit such offencesin future.

36. The satisfaction of the detaining authority that the detenu isalready in custody and he is likely to be released on bail and on beingreleased, he is likely to indulge in the same prejudicial activities is the A

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Asubjective satisfaction of the detaining authority. In Senthamilselvi v.State of T.N. and Another (2006) 5 SCC 676, the Supreme Court heldthat the satisfaction of the authority coming to the conclusion that thereis likelihood of the detenu being released on bail is the “subjectivesatisfaction” based on the materials and normally the subjectivesatisfaction is not to be interfered with.B

37. The satisfaction of the detaining authority that the detenu maybe released on bail cannot be ipse dixit of the detaining authority. On thefacts and circumstances of the present case, the subjective satisfactionof the detaining authority that the detenu is likely to be released on bail isbased on the materials. A reading of the grounds of detention clearlyCindicates that detenu Nisar Aliyar has been indulging in smuggling goldand operating syndicate in coordination with others and habituallycommitting the same unmindful of the revenue loss and the impact onthe economy of the nation. Likewise, the detention order qua detenuHappy Dhakad refers to the role played by him in receiving the gold andDdisposing of the foreign origin smuggled gold through his multiple jewelleryoutlets and his relatives. The High Court, in our view, erred in quashingthe detention orders merely on the ground that the detaining authorityhas not expressly recorded the finding that there was real possibility ofthe detenues being released on bail which is in violation of the principleslaid down in Kamarunnisa and other judgments and Guidelines No.24.EThe order of the High Court quashing the detention orders on thosegrounds cannot be sustained.

38. Guideline No.24 of (Part A of Do’s) stipulates that when thedetenu was in judicial custody, the detaining authority has to record inthe grounds of detention its awareness thereof and then indicate theFreasons for the satisfaction that there is imminent possibility of his releasefrom the custody and after release such person is likely to continue toindulge in the same prejudicial activities. As discussed earlier, the detentionorder shows the application of mind of the detaining authority based onthe materials available on record, facts and circumstances of the case,Gnature of activities and the propensity of the detenues indulging in suchactivities.

39. After we have reserved the matter for judgment, the learnedsenior counsel for the respondent-detenu has drawn our attention to thedetention order No.PD-12001/34/2019-COFEPOSA dated 01.07.2019

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passed against one Ashok Kumar Jalan (Kolkata) under the COFEPOSAAct and submitted that in the said detention order, the detaining authority– Joint Secretary (COFEPOSA) has recorded the satisfaction as to thelikelihood of the detenu being released on bail and in the present case,non-recording of such satisfaction clearly indicates non-application ofmind. The said detention order dated 01.07.2019 has no relevance tothe present case. It does not strengthen the contention of the respondentas to the non-application of mind of detaining authority, which contentionwe have rejected for the reasons recorded supra.

40. The learned senior counsel for detenues submitted that personalliberty and compliance of procedural safeguards are the primeconsideration and since the procedural requirements are not compliedwith violating the personal liberty of the detenues, the High Court rightlyquashed the detention orders and the same cannot be interfered with.As discussed earlier, in the case in hand, the procedural safeguards arecomplied with. Insofar as the contention that the courts should lean infavour of upholding the personal liberty, we are conscious that theConstitution and the Supreme Court are very zealous of upholding thepersonal liberty of an individual. But the liberty of an individual has to besubordinated within reasonable bounds to the good of the people. Orderof detention is clearly a preventive measure and devised to affordprotection to the society. When the preventive detention is aimed toprotect the safety and security of the nation, balance has to be struckbetween liberty of an individual and the needs of the society.

41. Observing that the object of preventive detention is not topunish a man for having done something but to intercept and to preventhim from doing so, in Naresh Kumar Goyal v. Union of India andothers (2005) 8 SCC 276, it was held as under:- “8. It is trite law that an order of detention is not a curative orreformative or punitive action, but a preventive action, avowedobject of which being to prevent the antisocial and subversiveelements from imperilling the welfare of the country or the securityof the nation or from disturbing the public tranquillity or fromindulging in smuggling activities or from engaging in illicit traffic innarcotic drugs and psychotropic substances, etc. Preventivedetention is devised to afford protection to society. The authoritieson the subject have consistently taken the view that preventive AB

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detention is devised to afford protection to society. The object isnot to punish a man for having done something but to interceptbefore he does it, and to prevent him from doing so………”.

42. Considering the scope of preventive detention and observingthat it is aimed to protect the safety and interest of the society, in Stateof Maharashtra and others v. Bhaurao Punjabrao Gawande (2008)3 SCC 613, it was held as under:- “36. Liberty of an individual has to be subordinated, withinreasonable bounds, to the good of the people. The framers of theConstitution were conscious of the practical need of preventivedetention with a view to striking a just and delicate balance betweenneed and necessity to preserve individual liberty and personalfreedom on the one hand and security and safety of the countryand interest of the society on the other hand. Security of State,maintenance of public order and services essential to thecommunity, prevention of smuggling and blackmarketing activities,etc. demand effective safeguards in the larger interests ofsustenance of a peaceful democratic way of life.

37. In considering and interpreting preventive detention laws, courtsought to show greatest concern and solitude in upholding andsafeguarding the fundamental right of liberty of the citizen,however, without forgetting the historical background in whichthe necessity—an unhappy necessity—was felt by the makers ofthe Constitution in incorporating provisions of preventive detentionin the Constitution itself. While no doubt it is the duty of the courtto safeguard against any encroachment on the life and liberty ofindividuals, at the same time the authorities who have theresponsibility to discharge the functions vested in them under thelaw of the country should not be impeded or interfered with withoutjustification(vide A.K. Roy v. Union of India (1982) 1 SCC 271,Bhut Nath Mete v. State of W.B. (1974) 1 SCC 645, State ofW.B. v. Ashok Dey (1972) 1 SCC 199 and ADM v. ShivakantShukla (1976) 2 SCC 521).” [underlining added].

43. The court must be conscious that the satisfaction of the detainingauthority is “subjective” in nature and the court cannot substitute itsopinion for the subjective satisfaction of the detaining authority andinterfere with the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune from judicial reviewability.By various decisions, the Supreme Court has carved out areas withinwhich the validity of subjective satisfaction can be tested. In the presentcase, huge volume of gold had been smuggled into the country unabatedlyfor the last three years and about 3396 kgs of the gold has been broughtinto India during the period from July 2018 to March, 2019 camouflagingit with brass metal scrap. The detaining authority recorded finding thatthis has serious impact on the economy of the nation. Detaining authorityalso satisfied that the detenues have propensity to indulge in the sameact of smuggling and passed the order of preventive detention, which isa preventive measure. Based on the documents and the materials placedbefore the detaining authority and considering the individual role of thedetenues, the detaining authority satisfied itself as to the detenues’continued propensity and their inclination to indulge in acts of smugglingin a planned manner to the detriment of the economic security of thecountry that there is a need to prevent the detenues from smugglinggoods. The High Court erred in interfering with the satisfaction of thedetaining authority and the impugned judgment cannot be sustained andis liable to be set aside.

44. In the result, the impugned judgment of the High Court dated25.06.2019 in W.P. (Crl.) Nos.2843 and 2844 of 2019 quashing thedetention orders of the detenues viz. Happy Arvindkumar Dhakad andNisar Pallathukadavil Aliyar is set aside and the appeals preferred byUnion of India are allowed. Consequently, the appeals preferred by thedetenues shall stand dismissed.

Ankit Gyan

Appeals disposed of.

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