IMPORTANT POINT
Preventive detention – Order of detention cannot be sustained where detention order being silent on crucial aspects.

JUDGMENT :

Leave granted.

2. The wife of the detenu; detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974¹[“the COFEPOSA Act”], is before us challenging the order of detention. There is no challenge to the procedural aspects which have been scrupulously complied with. The High Court, before whom the detention order and its subsequent confirmation have been assailed rejected the contentions; which decision is impugned in the above appeal. The detention order, impugned before the High Court, is produced as Annexure P-1.

3. We have heard Mr. Farook M. Razack, learned Senior Counsel for appellant and Mr. Vikramjit Banerjee, learned Additional Solicitor General for India for the respondents.

4. Essentially, three grounds are raised before us to secure the release of the detenu who is behind bars for almost a year, the arrest being on 05.03.2024. That there is clear non- application of mind since the allegations are raised under clauses (i) to (iv) of Section 3(1) of the COFEPOSA Act, in an omnibus manner, clearly revealing the bias of the detaining officer. The attempt was to somehow obtain preventive detention of the person who was arrested on the basis of the offences alleged; in which crime he was granted bail by the jurisdictional Court, imposing very stringent conditions. Then, 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. A cancellation would have resulted in the detenu being taken back in custody, in which event there was no cause for shackling the appellant on a preventive basis. When a judicious consideration was possible, as to whether the appellant should be taken back in custody, an order for preventive detention ought to have been avoided, which would also be in violation of the salutary provisions under Article 14, 19 and 21 of the Constitution of India, 1951. The last ground urged is that the impugned order refers to a conviction in a case involving narcotics which conviction is challenged before the Hon’ble Supreme Court by way of an appeal in which the detenu is also released on bail. The crime itself was registered way back and the incident has no live link with the order of detention. It is also urged that the proviso to Section 3(1) of the COFEPOSA Act specifically prohibited a detention under that provision if an order of detention can be made under Section 3 of the Narcotic Drugs and Psychotropic Substances Act, 1985²[“NDPS Act”].

5. To press home the contention of complete non-application of mind, the learned Senior Counsel for the appellant relied on a number of decisions. Clauses (i) to (iv) of Section 3(1) in seriatim refers to, smuggling goods (i), abetting the smuggling of goods (ii), engaging in transporting or concealing or keeping smuggled goods (iii) and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods (iv). To consider whether the allegations against the detenu falls within all these, necessarily, we have to go through the detention order detailing the allegations raised against the detenu.

6. There was intelligence gathered that the detenu along with his wife (appellant-herein) were operating a syndicate involved in smuggling foreign original gold into India and selling it in the market. There was also specific intelligence regarding the transmission of 10 kg. of smuggled gold through named persons for selling in the local Mumbai market at a specified location; a shop room, wherein a raid was conducted on 05.03.2024. Huge cache of gold bars, coins and cut pieces along with a huge quantity of