TMI Blog2019 (12) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... nion that the present case squarely falls under clause a of the exceptions provided under the notification as the detenue was a kingpin and a repeat offender and according to the material placed on record, it was the fifth offence of smuggling in which the detenue had been found involved - The fact that the detenue was a kingpin and a repeat offender and had indulged in smuggling activities prior to the impugned detention order being passed against him proves that he had the propensity and potentiality to continue with such acts and/or finance other persons to commit such acts in future. In any event, there is evidence to show that the detenue need not travel outside India to commit an offence of smuggling as he was a kingpin who had multiple associates who had been smuggling goods into India at his behest. Keeping in view his past conduct, there seems to be every likelihood of him indulging in the activities of smuggling. Consequently, the likelihood of the detenue indulging in smuggling activities was not effectively foreclosed by deposit of his passport - This Court also finds that the bail applications preferred by the detenue were a part of the relied upon documents o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the drones had been recovered from three checked-in bags having no luggage tags, implantation of the same could not be ruled out. 3. Learned senior counsel for the petitioner submitted that COFEPOSA had been wrongly invoked in the present case. In support of his submission, he relied upon the notification F.No.671/14/2012 Cus. VIII dated 3rd August, 2012 passed by Ministry of Finance, Department of Revenue wherein it has been stated that COFEPOSA cannot be invoked until the attempted duty evasion is ₹ 50 lakhs or the value of the goods is ₹ 2 crores. He emphasized that the value of the recovered goods in the present case had been exaggerated and the market value of the same was much less than ₹ 50 lakhs. He stated that even if the value attributed by the respondents is to be believed at ₹ 1.09 crores, the same falls short of the prescribed amount in the aforementioned Notification. 4. Learned senior counsel for the petitioner further contended that since the passports of the detenue and his family members were already in the possession of Custom Department, there was no possibility of the detenue committing an offence of smuggling. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country. There is higher standard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the facts and circumstances of the case. 5. Learned senior counsel for the petitioner submitted that the impugned detention order was illegal as the ordinary criminal law was sufficient to deal with the case of the detenue. He emphasised that the impugned detention order should not have been passed as the detenue was already in custody and there was no likelihood of him being released inasmuch as three of his bail applications had already been dismissed. In support of his submission, he relied upon the following judgments of the Supreme Court:- A. Rekha vs State of Tamil Nadu (2011) 5 SCC 244 wherein it has been held as under: 30. Whenever an order under a preventive detention law is ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been foretold. As matters in fact stood when the order of detention was passed, the normal rule of release on bail had not been followed by the courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. (See in this context Ramesh Yadav v. District Magistrate [(1985) 4 SCC 232 : 1985 SCC (Cri) 514 : AIR 1986 SC 315] , AIR at p. 316.) 6. In view of the foregoing, he prayed that the impugned detention order dated 11th March, 2019 and the impugned order dated 7th June, 2019 confirming the said detention order, be quashed. ARGUMENTS ON BEHALF OF THE RESPONDENTS 7. Per contra, Mr. Ajay Digpaul, learned counsel for the Respondent Nos. 1 2 vehemently denied that the alleged recoveries had been wrongly attributed to the detenue. He stated that specific intelligence had been received by the Assistant Commissioner, Green Channel, Shift-D through an informer on the intervening night of 1st and 2nd February, 2019, which had been recorded in DRI-I, regarding the smuggling of drones, gold, cigarettes etc. in commercial quantity by six passengers from two different fli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the passports could be released against an order of the concerned Court and four other accused persons had already collected their passports. 12. Learned counsel for the Respondent Nos. 1 2 submitted that the notification F.No.671/14/2012 Cus. VIII dated 3rd August, 2012 passed by Ministry of Finance, Department of Revenue was no bar to apprehend the detenue as the detenue was a kingpin and a repeat offender and consequently, he would fall under clause a of the exceptions mentioned in the notification. He pointed out that as mentioned in the counteraffidavit filed on behalf of the Respondent Nos. 1 and 2, the detenue had been involved in four cases prior to his detention and the present case was his fifth offence. 13. In view of the aforesaid, he stated that the Detaining Authority had issued a legally tenable impugned detention order after due consideration and proper appreciation of the facts. COURT S REASONING THE CONTENTION OF THE PETITIONER THAT THE CUSTOM OFFICERS HAD ILLEGALLY CLUBBED ALL THE RECOVERIES TO EX-AGGERATE THE VALUE OF THE GOODS IS CONTRARY TO FACTS AS OWNERSHIP OF THE RECOVERED GOODS HAD BEEN ATTRIBUTED TO THE DET ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equivalent to ₹ 1.86 crores (approx.). Shri Gagan Jot Singh could not be arrested in this case as he remained underground for a considerable period. However, he was a co-noticee in the case. The case has since been adjudicated vide O-I-O No. 157/Dr.Amandeep Singh/ADC/2018 issued under C. No. VIII (AP) 10/P I/Adj/34/2017 dated 31.03.2018 wherein, the seized foreign currency has been absolutely confiscated and penalty amounting to ₹ 37,32,450/- each has been imposed upon Shri Harmeet Singh and Shri Gagan Jot Singh. b) On 13.05.2018, Jaipur Airport Customs had booked a case of smuggling of foreign currency amounting to ₹ 1.26 lakhs along with cigarettes valued at ₹ 17.21 lakhs against three persons who were carriers. They admitted that Shri. Gagan Jot Singh was the mastermind and their handler. c) Shri Gagan Jot Singh has also committed a green channel violation in which 8 Canon Cameras and 11 Canon Lens had been seized on 12.09.2018 at IGI Airport. d) On 29/30.11.2018, Shri Gagan Jot Singh has committed a Green Channel violation in which 108 cartons of cigarettes had been seized at IGI Airport. (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the detenue had not sought for the release of his passport cannot be misconstrued as a seizure by the Custom Department. 19. In any event, there is evidence to show that the detenue need not travel outside India to commit an offence of smuggling as he was a kingpin who had multiple associates who had been smuggling goods into India at his behest. Keeping in view his past conduct, there seems to be every likelihood of him indulging in the activities of smuggling. Consequently, the likelihood of the detenue indulging in smuggling activities was not effectively foreclosed by deposit of his passport and accordingly, the judgment in Moulana Shamshunnisa (supra) is of no help to the petitioner. SUBMISSION OF LEARNED SENIOR COUNSEL FOR THE PETITONER THAT ORDINARY LAW WAS SUFFICIENT TO DEAL WITH THE PRESENT CASE AND THE IMPUGNED DETENTION ORDER SHOULD NOT HAVE BEEN PASSED AS THE DETENUE WAS ALREADY IN CUSTODY IS UNTENABLE IN LAW. 20. It is pertinent to mention that an order of preventive detention is distinct from any action taken under criminal law. The Supreme Court in Union of India v. Paul Manickam, (2003) 8 SCC 342 , on this aspect, has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the Detaining Authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority. 8.5 In the case of Kamarunnissa (supra), this Court concluded as under: (1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody. (2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , yet there was an immediate possibility of him being released on bail and continuing with illegal acts of smuggling. The same proves that the detaining authority had justifiable reasons to pass the impugned detention order to prevent the detenue from indulging in illegal acts. 24. It is pertinent to mention that the satisfaction of the detaining authority is subjective in nature and the Court cannot interfere with the order of detention by substituting its opinion for the subjective satisfaction of the detaining authority [See: Union of India and Anr. Vs. Dimple Happy Dhakad, 2019 SCC OnLine SC 875]. CONCLUSION 25. In view of the abovementioned facts and material on record, this Court is of the view that the Detaining Authority committed no error in passing the impugned detention order against the detenue. The impugned order had been passed against the detenue after due consideration of the evidence, which clearly shows that the detenue had been involved in smuggling of commercial quantities of drones, prohibited cigarettes, electronic items etc. into India and had an inclination to indulge in such activities had he not been prevented from doin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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