S. Muralidhar, J.

Introduction

1. These are two writ petitions under Article 226 of the Constitution of India seeking the quashing of orders of preventive detention dated 1st June 2018 passed by the Joint Secretary, Government of India in the COFEPOSA Unit of the Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, Government of India in exercise of the powers conferred under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act 1974 (‘COFEPOSA’). In both instances, the impugned orders are identically worded inasmuch as each of them states that the concerned Joint Secretary who issued the order is satisfied that each of the Petitioners is required to be prevented from “smuggling goods, abetting the smuggling of goods, or engaging in transporting, or concealing or keeping smuggled goods or dealing in smuggled goods in future”.

2. In W.P. (Crl) No. 1971 of 2018, the Petitioner is Mr. Sanjay Agarwal and in W.P. (Crl) No. 1977 of 2018, the Petitioner is Mr. Ajay Agarwal, the brother of Mr. Sanjay Agarwal.

3. It must be noted at the outset that identical detention orders were passed against the above two Petitioners as well as a third Petitioner Mr. Preet Kumar Agarwal, who is the son of Mr. Sanjay Kumar Agarwal. Mr. Preet Kumar Aggarwal had filed W.P. (Crl) No. 1978 of 2018. However, the Advisory Board declined to confirm the detention order in the case of Mr. Preet Kumar Agarwal and consequently, the aforementioned writ petition filed by him was rendered infructuous. It was disposed of as such by this Court by a separate order passed on 21st August 2018.

4. As far as the present two petitions are concerned, since the background facts are common, they are being disposed of by this common order.

Background facts

5. On 4th April 2018, the Department of Revenue Intelligence (‘DRI’), Kolkata Zonal Unit, Kolkata apprehended Mr. Preet Kumar Agarwal, the son of Mr. Sanjay Agarwal from Netaji Subhas Chandra Bose International Airport (‘NSCBI Airport’) at Kolkata. Mr. Sanjay Agarwal, who had already boarded an Indigo Airlines flight to Hyderabad was made to de-board from that flight and was apprehended by a second team of DRI officials. On the same date, a third team of DRI officials intercepted two boxes from Indigo Airlines Domestic Cargo which contained 1194 pieces of gold bangles made of 22 carat gold. The boxes weighed 54,096 gm and were valued at Rs.16,10,43,792/-.

6. On 5th and 6th April 2018, the statement of Mr. Sanjay Agarwal was recorded under Section 108 Customs Act 1962 (‘Customs Act’). In that statement, he is purported to have admitted to diverting goods meant for export to the domestic market after all export formalities were completed and that his son Mr. Preet Kumar Agarwal had helped him in this task. The statements of Mr. Preet Kumar Agarwal and Mr. Ajay Agarwal were also separately recorded under Section 108 Customs Act. Mr. Preet Kumar Agarwal purportedly admitted to diverting two sealed boxes containing gold bangles meant for export from Kolkata Airport to his father. The statement of Mr. Ajay Agarwal was also recorded in which he allegedly stated that his brother Mr. Sanjay Agarwal had invested money in his firm M/s. Kalpataru Jewellers and that he had exported 19 consignments through M/s. Kalpataru Jewellers.

7. On 5th and 6th April 2018, the premises of M/s. Ghanshyamdas Gems & Jewels (the proprietor of which is Mr. Sanjay Agarwal), Shree Ganesh Jewels (owned by Mr. Sanjay Agarwal’s employee Mr. Avinsah Soni), and PH Jewels (owned by Mr. Sanjay Agarwal’s sister-in-law) were searched. The residential premises of Mr. Sanjay Agarwal at Hyderabad were also searched. Nothing incriminating was found in these searches.

8. The version of the Respondents is that Mr. Sanjay Agarwal, along with his son Mr. Preet Kumar Agarwal, were intercepted at Kolkata Airport on 4th April 2018 by the DRI, Kolkata Zonal Unit, while they were in the process of diverting a consignme