Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 753

SUPREME COURT OF INDIA
R. BANUMATHI, A.S. BOPANNA, JJ.
1. UNION OF INDIA
2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA, MINISTRY OF FINANCE – Appellants
VERSUS
DIMPLE HAPPY DHAKAD – Respondent
CRIMINAL APPEAL NO. 1064 2019 (Arising out of SLP(Crl.) No.5459 of 2019) WITH CRIMINAL APPEAL NO. 1066 2019 (Arising out of SLP(Crl.) No.5408 of 2019) CRIMINAL APPEAL NO. 1067 2019 (Arising out of SLP(Crl.) No.5460 of 2019) CRIMINAL APPEAL NO. 1065 2019 (Arising out of SLP(Crl.) No.5396 of 2019)
Decided On : 18-07-2019

Advocates Appeared:
For Petitioner(s):Ms. Binu Tamta, Mr. Dhruv Tamta, Mr. B. Krishna Prasad, Mr. Gautam Awasthi Advocates
For Respondent(s):Mr. Gautam Awasthi, Mr. B. Krishna Prasad, Advocates

IMPORTANT POINTS
In computing the period of five days, the date on which the detention order was served has to be excluded.
Supply of documents and material pari passu means must be contemporaneous as mandated within the time limit of five days stipulated under Section 3(3) of the COFEPOSA Act and Article 22(5).
Any executive instruction like the guidelines cannot curtail the provisions of any statute or whittled down any provision of law.
Satisfaction of detaining authority is subjective.
Preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so. It is aimed to protect the safety and security of the nation. Therefore balance has to be struck between liberty of an individual and the needs of the society.

Headnote:(a) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Section 3 - Expressions “as soon as may be…..” and “but ordinarily not later than five days” - In computing the period of five days, the date on which the detention order was served has to be excluded - Instantly, the detention orders and the grounds of detention served on 18.05.2019 - Relied upon documents served between 20.05.2019 and 22.05.2019 - This is within five days from the date of serving of detention orders i.e. 18.05.2019 - No error. (Para 21, 23)
       (b) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Section 3(3) r/w Article 22(5), Constitution of India - Supply of documents and material pari passu - Means must be contemporaneous as mandated within the time limit of five days stipulated under Section 3(3) of the COFEPOSA Act and Article 22(5). (Para 22)
       (c) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Section 3(3) - Supply of documents and material pari passu - Grounds of detention and relied upon documents to be served within five days and reasons to be recorded within fifteen days with explanation - Only when such rule is violated, it can be said that they were not furnished together. (Para 24)
       (d) Interpretation of statute - Any executive instruction like the guidelines cannot curtail the provisions of any statute or whittled down any provision of law. (Para 26)
       (e) Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - Section 3(3) - Satisfaction of detaining authority - Subjective - Instantly detaining authority recording his awareness of appellant being in custody, refusal of appellant’s bail, and, his satisfaction - Noting antecedents of detenues detaining authority recording his satisfaction that detenues have high propensity to commit such offences in future - Held, detaining authority applied his mind, notwithstanding his not expressly stating as to the “detenue’s likelihood of being released on bail” and “if so released, he is likely to indulge in the same prejudicial activities”. (Para 35, 36, 43)
       (f) Preventive detention - Vis-à-vis personal liberty - Preventive detention aimed to protect the safety and security of the nation - Balance has to be struck between liberty of an individual and the needs of the society - Preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so. (Para 40, 41)
       Facts of the case:
       The Detaining Authority-Joint Secretary (COFEPOSA), on being satisfied that the detenues have high propensity to indulge in the prejudicial activities, with a view to prevent them from smuggling and concealing smuggled gold in future, passed the orders of detention dated 17.05.2019 under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention orders and the grounds of detention were served on the detenues on 18.05.2019. The copies of the relied upon documents were served on the detenues on 21.05.2019 and 22.05.2019.
       The High Court quashed the detention orders by holding that there was no application of mind by the Detaining Authority in passing the detention orders.
       Finding of the Court:
       High Court wrongly interfered with order of detention.
       Result: Appeals disposed of.

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. These appeals arise out of the judgment dated 25.06.2019 passed by the High Court of Judicature at Bombayin W.P. (Crl.) Nos.2843 and 2844 of 2019 in and by which the High Court has quashed the detention orders 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 2019 have challenged the impugned judgment quashing the detention orders. While quashing the detention orders, the High Court has stayed the operation of its own order for a period of one week to enable the appellants 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 stand disposed of by this common judgment.

3. The facts giving rise to these appeals are that pursuant to an investigation by the office of Directorate of Revenue Intelligence in the matter of smuggling of foreign origin gold by a syndicate of persons from UAE to India. On 28.03.2019 search and interception of two vehicles i.e. a Honda Activa Scooter and a Honda City car was held. It was noticed that there were two persons Abdul Ahad Zarodarwala and Shaikh Abdul Ahad, employee of Zarodarwala. Search of the vehicles resulted in recovery of 75 kgs of gold in the form of five circular discs valued at Rs.24.5 crores. Follow-up searches were conducted in the offices and residential premises of the connected persons resulted in further recovery of 110 kgs of gold and currency amounting to Rs.1.81 crores. Shoeb Zarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad were summoned and their statements were recorded and they are alleged to have made statement regarding receiving of smuggled gold from respondent detenu-Nisar Pallathukadavil Aliyar.

4. Facts in SLP (Crl.) No. 5408 of 2018: Case of the appellants is that the respondent-detenu Nisar Pallathukadavil Aliyar is a full-time organised smuggler of large quantities of gold and is the mastermind of the smuggling syndicate and has been smuggling gold into India since 2016. It is stated that two companies, viz. M/s. Al Ramz Metal Scrap Trading and M/s. Blue Sea Metal FZE were floated and registered by the appellant in the name of one Kalpesh Nanda for exporting metal scrap to India which is alleged to cover cargo to smuggle gold. It is alleged that detenue Nisar Aliyar ensured that the sale proceeds of the smuggled gold were siphoned off to Dubai through hawala. It is alleged that Nisar Aliyar created a wide network of people to look after the operations at every stage and was smuggling gold into India since 2016 and is alleged to have smuggled more than 3300 kgs of gold having approximate value of Rs.1000 crores and is alleged to be a mastermind of the smuggling syndicate. Detenu Nisar Aliyar was arrested on 31.03.2019 for commission of offences punishable under Section 135 of the Customs Act, 1962 and his statement was recorded.

5. Facts in SLP (Crl.) No. 5396 of 2019: Detenu-Happy Arvindkumar Dhakad is a Director of Bullion Trading Firm and is a jeweller. As per the appellants, investigations revealed that the husband of the detenu Happy Dhakad was directly dealt with Shoeb Zarodarwala and Jignesh Solanki who are his relatives by buying gold from Nisar Aliyar. Detenu Happy Dhakad is alleged to have abetted Nisar Aliyar in his illegal activities of receiving and concealing smuggled gold and disposing it off through his jewellery outlets and is said to have played a vital role. It is alleged that through multiple jewellery outlets owned by him and his relatives, detenu-Happy Dhakad disposed of the foreign origin smuggled gold easily. Follow up searches were conducted at various offices and residential premises of persons found connected with smuggling of gold. A total quantity of 110 kgs of gold was recovered from these premises. Thirty-one pieces of gold carrying a total weight of 20.4 kgs

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2019 Supreme(SC) 753

Cases Referred (16)