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TMI Blog2020 (7) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... g Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'). 2. The factual matrix as is relevant and germane for the adjudication of the present proceeding, is adumbrated as follows: i. On receipt of specific intelligence, a passenger namely, Shri Raju Singh Sachdeva (for short 'Shri Sachdeva'), resident of SF/2 Prerna Apartment, New Gandhi Nagar, Ghaziabad, U.P.-201001, holder of Indian Passport No. R3111421, issued at Ghaziabad, was intercepted near the Exit Gate of the Arrival Hall, Terminal-I, IGI airport, New Delhi on 16.05.2019. Shri Sachdeva had arrived from Bangkok to Varanasi by flight No. 6E 98 dated 16.5.2019 and from Varanasi to New Delhi by flight No. 6E 6635 on the said date. Shri Sachdeva was carrying one checked-in baggage and two hand bags. Upon being asked by the Customs Authorities whether he was carrying any dutiable or prohibited goods, Shri Sachdeva replied in the negative. However, not being convinced by his reply and in view of the specific intelligence received, Shri Sachdeva was brought to the Arrival Hall, Terminal 3 of the IGI Airport, New Delhi for further examination. Thereafter, in the presence of independent Panchas and after due service of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .35301 dated 17.05.2019 was also issued in respect of above said seized Gold. Further, all concealing material viz. 29 sling bags were also placed in a bag and sealed with Customs Seal bearing "Customs PC-IGl" on one side and 'Ashoka Stambh' on another side over a paper slip bearing the dated signatures of the independent Panchas, Shri Sachdeva and the Customs Officers. A Detention Receipt No.35302 dated 17.05.2019 was also issued against it. ii. During investigation of the case, the statement of Shri. Sachdeva was recorded under section 108 of the said Act on 17.05.2019, wherein, he inter alia stated that, he could read, write, speak and understand English and Hindi language; that his family apart from him consisted of his wife and two children who stay with him; that his wife was housewife and his son and daughter were studying in 10th standard and graduation respectively; that he was born and brought up in Ghaziabad and that he was a law graduate from Meerut University; that he was using two mobile phones (One Gionee and one Ml-6) and four mobile numbers, i.e., +919582152838 (Indian), +66619280350 (Bangkok), +919958079595 (Indian) and +918700702083 (Indian); that in the year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue or his associate, at a place chosen for the delivery of the subject gold and he has also admitted to have illegally imported gold weighing 14 Kilograms in total during his seven previous visits, valued at Rs. 4,16,57,798/-, thus bringing the total value of the smuggled gold in the past and during the current visit to a sum of Rs. 4,76,08,912/-. vii. In view of the afore-extracted depositions of Shri Sachdeva, in relation to the Detenue's role and involvement in the business of smuggling of gold hidden in garments, brought from the Detenue's associates in Bangkok, surveillance was kept on the latter's activities and his travel history and thereafter the Detenue was finally apprehended on 30.06.2019. In the Detenue's statement recorded on 30.06.2019, under Section 108 of the said Act, it was stated by the Detenue that, he was born and brought up in Delhi and after completing his schooling from Ravindra Public School, Pitampura he started doing choreography for wedding events and also engaged himself in the business of Event Management as a freelancer. The Detenue further stated that he was facing acute financial crisis, he sought assistance from his childhood friend namely, Taru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranasi 450 gms approx 15. 11.02.19 Un-quantified currency 12.02.19 via Varanasi 300 gms approx 16. 24.02.19 Un-quantified currency 26.02.19 via Varanasi 500 gms approx 17. 27.02.19 Un-quantified currency 02.03.19 via Varanasi 250gms approx 18. 05.03.19 Un-quantified currency 07.05.19 via Varanasi 450 gms approx 19. 12.03.19 Un-quantified currency 14.03.19 via Varanasi 400 gms approx 20. 17.03.19 Event purpose 20.03.19 via Lucknow Event purpose 21. 21.03.19 Un-quantified currency 23.03.19 via Lucknow 450 gms approx 22. 29.03.19 Un-quantified currency 03.04.19 via Lucknow 350 gms approx 23. 05.04.19 Un-quantified currency 07.04.19 via Lucknow 400 gms approx 24. 09.04.19 Un-quantified currency 12.04.19 via Lucknow 500 gms approx 25. 18.04.19 Un-quantified currency 19.04.19 via Lucknow 500 gms approx 26. 22.04.19 Un-quantified currency 24.04.19 via Lucknow 400 gms approx 27. 27.04.19 Un-quantified currency 29.04.19 via Varanasi 350 gms approx 28. 30.04.19 Event purpose 03.05.19 Event purpose 29. 08.05.19 Un-quantified currency 09.05.19 300 gms approx Therefore, the total Gold smuggled by the Detenue in his adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mobile no. of Ms. Neha Sharma was 8929607849, who had guided the Detenue in all the above visits. Predicated on the Detenue's deposition and categorical admission in relation to smuggling of foreign currency and at least 8350 gms Gold, he was arrested under section 104 of the said Act on 01.07.2019 vide Arrest Memo dated 01.07.2019. On being produced before learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, Detenue was forwarded to judicial custody till 15.07.2019 vide Order dated 01.07.2019 by learned CMM. The judicial custody was further extended up to 29.07.2019. x. That on 19.07.2019, the impugned Detention Order was passed and served on the Detenu along with the grounds of detention, admittedly on the 21.07.2019, whilst he was already in judicial custody and lodged at Tihar Jail, Delhi. xi. The Detenu filed his representation dated 24.08.2019, under Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA, addressed to the Detaining Authority, against the impugned detention order through the jail authorities. xii. The afore-stated detention order was confirmed by the Advisory Board vide its order dated 09.10.2019, which affirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect Detention Order and therefore, this plea has been taken by the petitioner only with a motive to mislead this Hon'ble Court. Insofar as, the non-consideration of the 'Summons' and 'No Recovery Panchnama' is concerned, it was pointed out that the same were not documents relied upon by the Sponsoring Authority, since the same were not relevant or germane for determining the gravity of the offences alleged to have been committed by the Detenue, to the satisfaction of the Detaining Authority. It was also urged on behalf of the official respondent that the assertion made by the Detenue that his voluntary statements, recorded under Section 108 of the said Act, were not in his handwriting, as the same purportedly did not match with his handwriting in the 'Letter of Extrication' dated the 03.07.2019, is false to the knowledge of the Detenue, since the same was also duly considered by the Advisory Board during its hearing and outrightly rejected. 8. Lastly, Mr. Ajay Digpaul, learned CGSC would invite our attention to the grounds of detention and in particular paragraphs 1(xii), (xiii), (xiv), (xvi), (xviii), 2,5,6 and 7, which are extracted hereinbelow: "(1) xii. In view of the deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-remunerative and stopped doing that from 2014-15 till November 2018. b) On being asked, you i.e. Shri Greeshm Sharma further deposed that once again you came in contact with Shri Tarun Jain in 2018 when he persuaded you to restart bringing the Gold using the same modus operandi; as in June, 18 you visited Bangkok for your own choreography business. Shri Tarun Jain told you that when you were going to Bangkok for your own business, why did not you restart bringing Gold for him (Tarun Jain) on return and he (Tarun Jain) promised you to take care of all your air travel and lodging expenses for Bangkok trips. You i.e. Shri Greeshm Sharma categorically admitted that since November, 2018 till May, 2019, you had made total 29 trips to Bangkok, out of which approximately 18 to 20 trips were made exclusively on Tarun Jain's behest and in between other trips were made in connection with your own choreography business. You provided the following details of his Bangkok trips and the purpose of his visits:- S.No. Date of Departure from India Cash carried on Departure Date of Arrival in India Qty of Gold and its form 1. 20.11.18 Packet of Un- quantified currency given by Tarun to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) On being further asked since you are a resident of Delhi, why you had been routing through other Airports of India while returning from Bangkok, you i.e. Shri Greeshm Sharma stated that Varanasi Airport, there was virtually no checking by Customs or very little checking by them. You admitted that this route was suggested by Shri Tarun Jain and you were following the same route. Thereafter, you used to catch domestic flight of Indigo Airlines to Delhi which used to usually land at T-1, IGI Airport, New Delhi, where there was no presence of Customs. d) On being shown a group photograph and asked to identify the persons therein, you identified all the four persons as Shri Tarun Jain, Shri Vikrant, Shri Sanjay Basoya and Shri Monish Kumar respectively. On being shown a photograph of a person in Blue Jersey and asked to identify him, you identified him as Vikas Kumar. xiii. Statement of you i.e. Shri Greeshm Sharma were again recorded under section 108 of the Customs Act, 1962 on 01.07.2019; On being asked about the role of Shri Avtar in the smuggling of Gold under guise of readymade garments, you stated that he is running an electronic shop Gulati Electronics, Patunam, Bangkok, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. The judicial custody has been further extended up to 29.07.2019. You i.e. Shri Greeshm Sharma have filed a bail application on 15.07.2019 (through your advocate) before the Hon'ble Court of CMM, Patiala House, New Delhi, which is fixed for hearing on 22.07.2019. In the said bail application you i.e. Shri Greeshm Sharma have alleged that you were asked to sign the pre narrated statements and blank papers under force and coercion and you were also beaten up to admit your involvement in the same gold case. You i.e. Shri Greeshm Sharma have also alleged that you were falsely implicated in the said case. xiv. During investigation of the case, forensic examination of the Pen Drive resumed from the residence of Shri Tarun Jain and Ms. Neha Sharma, Mobile Phone of M/s Travel in Style, Mobile Phone of Shri Greeshm Sharma i.e. you and Laptop of Shri Raju Singh Sachdeva was conducted in the-presence of two independent witnesses under Panchnama dated 08/09.07.2019. However; no data relevant to the investigation was found stored therein. xxxx xxxx xxxx xvi. Further, Shri Raju Singh Sachdeva has admitted that he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Greeshm Sharma are an important part of a well organised smuggling syndicate involved in smuggling of foreign origin gold and foreign currency. You along with other associates are in the habit of regularly smuggling goods into India from abroad without declaring the same before the Customs Authorities and paying applicable duty which amounts to "smuggling" in terms of Section 2 of the Customs Act, 1962. The underlying common threat is your propensity to smuggle goods for making illicit profit and putting the national economy into danger which needs to be curbed and yon need to be prevented from indulging in such activities further. xxxx xxxx xxxx xxxx xxxx 5. In view of the facts and circumstances explained above, I have no hesitation in concluding that you i.e. Shri Greeshm Shanna played a vital role in smuggling of foreign origin gold and foreign currency along with other accomplices. You i.e. Shri Greeshm Sharma have also designed plan in an organised and repeated manner in the act of smuggling. Investigations done by Commissionerate of Customs, IGI Airport, New Delhi clearly establish your continued propensity and inclination to indulge in acts of smuggling in a planned ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary evidences, corroborative statement and available records relating to your involvement in the syndicate of smuggling of gold and foreign currency and hence, I am satisfied that, your retraction of statements is devoid of merits." 9. In view of the foregoing, it would be submitted by Mr. Ajay Digpaul, learned CGSC that the Detaining Authority has passed a well-reasoned and legally sustainable Detention Order, after considering all the relevant facts of the case and after minutely examining the material available against the Detenu. Mr. Ajay Digpaul, learned CGSC places reliance on the recent decision of the Hon'ble Supreme Court in Union of India (UOI) and Ors. v. Dimple Happy Dhakad reported as AIR 2019 SC 3428, which was affirmed in Union of India (UOI) v. Ankit Ashok Jalan reported as 265 (2019) DLT 53, to urge that the Court must be conscious that the satisfaction of the Detaining Authority is "subjective" in nature and the court cannot substitute its opinion for the subjective satisfaction of the Detaining Authority and interfere with the order of detention. 10. Having heard learned counsel appearing on behalf of the parties and perused the material on record and in partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the search proceedings did not result in the recovery of any incriminating documents, other than some personal documents of the Detenue, such as PAN Card, Aadhaar Card and Driving License. Therefore, the Panchnama, in our view, cannot be said to be material, the non- placement of which would render the Detention Order illegal. In this view of the matter, the decision in Asha Devi (supra) pressed into service on behalf of the petitioner, does not come to the aid of the Detenue. 12. The Hon'ble Supreme Court of India was pleased to delineate precisely qua the subjective satisfaction of the Detaining Authority in Dimple Happy Dhakad (supra), which was affirmed by the Hon'ble 3-Judges in that Bench in Union of India (UOI) v. Ankit Ashok Jalan (supra), as follows:- "42. Considering the scope of preventive detention and observing that it is aimed to protect the safety and interest of the society, in State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613, it was held as under: 36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y where the preventive detention is aimed to protect the security and safety of the nation, the Courts must strike a balance between the liberty of an individual and the needs of the society. 14. In the present case, it is observed that huge volumes of gold had been smuggled into the country, illegally and unabatedly for the last five years and that about 8350 grams of gold has been brought into India during the period from November 2018 to May 2019 by the Detenue camouflaging the same as accessories of garments and buckle rings of bags. It is further observed that the Detaining Authority was justifiably satisfied, founded on the relevant material placed before it by the Sponsoring Authority, that the Detenue demonstrably has the propensity to indulge in the same acts of smuggling, if not prevented by way of the Detention Order from so doing. It is trite to state that the order of preventive detention is a preventive measure and that predicated on the admissible voluntary statements of the Detenue, which clearly bring out the role of the Detenue in the smuggling of Gold, as well as, other materials placed before the Detaining Authority, the subjective satisfaction of the Detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X
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