TMI Blog2020 (7) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority did not rely upon that document, since 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, cannot be said to be material, the non- placement of which would render the Detention Order illegal. 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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. 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 notice under Section 102 of the Customs Act, 1962 (hereinafter referred to as said Act ) dated 17.05.2019, a search of Shri Sachdeva s person as well as his baggage was conducted by the Customs Officers, leading to the recovery of the following items: a) On personal and baggage search, following were recovered: (i) 232 (Two Hundred Thirty Two) silver colour coated metal rings, having collective weight 2001 grams, suspected to be made of Gold, concealed as buckle rings in 29 sling bags; (ii) 29 sling Bags used for concealment of item at SL. No.1; (iii) Two used mobiles (One Gionee and one MI-6) and four mobile numbers, i.e., +919582152838 (Indian), +66619280350 (Bangkok), +919 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2010, he started working as a property dealer at Ghaziabad; that he did not have any office and operated from his home; that he also worked as a commission agent in providing loans to customers. Shri Sachdeva further stated that on 16.05.2019 he had arrived in Varanasi from Bangkok by flight No. 6E 98 and that he thereafter took a domestic flight from Varanasi to New Delhi viz. fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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, Tarun Jain in the year 2014-15; who offered the Detenue to join his business of trading of Gold by bringing the same from Bangkok and selling it in Delhi for profit; and that the Detenue was paid ₹ 7,000/- per trip in addition to all expenses of air travel and stay at Bangkok. It was further deposed by the Detenue that after two trips, he temporarily stopped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shirt Button 250gms approx. 9. 27.12.18 Event purpose 28.12.18 Delhi Event choreography 10. 09.01.19 Un-quantified currency 09.01.19 via Lucknow 500 gms approx. 11. 12.01.19 Event purpose 15.01.19 Delhi Event purpose 12. 24.01.19 Un-quantified currency 26.01.19 via Varanasi 450 gms approx 13. 28.01.19 Un-quantified currency 30.01.19 via Varanasi 400 gms approx 14. 04.02.19 Un-quantified currency 06.02.19 via Varanasi 450 gms approx 15. 11.02.19 Un-quantified currency 12.02.19 via Varanasi 300 gms approx 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 108 of the said Act of the Detenue was recorded on 01.07.2019. On being questioned about the role of Shri Avtar in the smuggling of gold under the guise of the readymade garments; the Detenue stated that, the former operates an electronic shop in the name of Gulati Electronics, Patunam, Bangkok, Thailand and that Shri Avtar used to deal with the persons carrying currency from India by receiving the packet containing cash, which was arguably counted by the said Shri Tarun Jain before sending the same and used to be communicated to said Shri Avtar in advance. Shri Avtar seldom counted the cash carried by Detenue or other such persons. Shri Avtar would visit the Detenue s hotel for a brief period to deliver readymade garments or any other goods wherein gold was concealed in exchange for the packet of the currency sent by the said Shri Tarun Jain. Shri Avtar lived in Bangkok along with his family and is stated to be a citizen of Thailand. ix. Further, upon being asked about the role of Ms. Neha Sharma and whether she used to act as a handler, it was revealed that she used to plan smuggling of gold and illegal export of foreign exchange to Thailand in connivance with her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his detention. 3. Mr. Ramkant Gaur, learned Counsel appearing on behalf of the petitioner assails the Detention Order, firstly, on the ground that, the Sponsoring Authority did not place the vital documents including the Detenue s Letter Of Extrication dated the 03.07.2019 before the Detaining Authority, thereby vitiating the subjective satisfaction of the latter and rendering the Detention Order invalid and illegal. 4. Mr. Ramakant Gaur, Advocate would then urge that the Detention Order is also vitiated, since the Detaining Authority considered his inculpatory statements dated 30.06.2019 and 01.07.2019, which were alleged to be in Detenue s handwriting, but was prevented by the Sponsoring Authority from due consideration of the Letter of Extrication dated 03.07.2019, which was the only document asserted by him to be in his handwriting and the consideration of which in juxtaposition with his inculpatory statements dated 30.06.2019 and 01.07.2019, would have clearly established that the Detenue had not authored the latter. 5. Mr. Ramakant Gaur, Advocate would also urge that the Detention Order is unsustainable in the light of the non-placement of the Sponsoring Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Greeshm Shanna, surveillance was kept on you and you were apprehended on 30.06.2019. Statement of you i.e. Shri Greeshm Shanna were recorded under section 108 of the Customs Act, 1962 on 30.06.2019 wherein you, inter-alia, stated that you were born and brought up in Delhi; that you did your schooling from Ravindra Public School, Pitampura and completed your studies upto 12th standard in Commerce stream with Maths in 2007; that after passing your school, you started doing choreography for wedding events and also engaged himself in the business of Event Management as a freelancer. On being asked whether you knew Shri Monish and Shri Vikas Kumar, you admitted that you had met them at Rohini Metro Station through Shri Tarun, Jain, who happened to be your neighbour at Shakti Apartment, Sec-9, Rohini, New Delhi-110085, in October 2018. a) On being asked about your relationship with Shri Tarun Jain, you stated that he (Tarun Jain) happened to be your neighbour and they were acquainted with each as friends since your childhood days but you were not aware about his profession after they grew up. Since your business of event management was not going well, you were facing acute fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 20.11.18 Packet of Un- quantified currency given by Tarun to handover to Avtar at Bangkok 22.11.18 via Lucknow Wire Ring 200gms approx 2. 24.11.18 Packet of Un- quantified currency given by Tarun to handover to Avtar at Bangkok 25.11.18 via Lucknow Wire ring 200gms approx 3. 27.11.18 Packet of Un- quantified currency given by Tarun to handover to Avtar at Bangkok 28.11.18 via Lucknow Wire ring 200gms approx 4. 04.12.18 Personal trips, for choreography, ₹ 2,00,000 06.12.18 via Mumbai Event choreography 5. 08.12.18 Un-quantified currency 08.12.18 via Lucknow 250 gms approx 6. 10.12.18 Event purpose 12.12.18 via Mumbai Event choreography ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e financing, ticketing and hotel booking for the persons doing the job. Several times, she had handed over foreign currency to the outgoing persons and had received Gold on return. (b) On being asked about the role of Shri Sanjay Basoya and Shri Raj Kumar, you stated that they were also carrying currency and Gold like you on the direction of Shri Tarun Jain and Ms. Neha Sharma. On being asked about the approximate currency carried at the time of departure, you admitted that you used to carry cash which would be equivalent to Gold brought from Thailand. On being further asked, you admitted that you had brought the abovementioned quantity of Gold in India on the direction of Shri Tarun Jain. You had his mobile number in your mobile phone saved as T007 . You further disclosed the mobile No. of Ms. Neha Sharma as 8929607849 who had guided you in all the above visits. c) In view of the depositions and categorical admission with regard to smuggling of foreign currency and atleast 8350 gms Gold, you i.e. Shri Greeshm Sharma were arrested under section 104 of the Customs Act, 1962 on 01.07.2019 vide Arrest Memo dated 01.07.2019 and produced before the Hon ble Chief Metropolitan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation of the case, so far, a reference has been made to the FRRO, Ministry of External Affairs, RK Puram, New Delhi vide letter dated 13.06.2019 to provide the travel details of Shri Raju Singh Sachdeva, Ms. Neha Sharma, Shri Tarun Jain and Shri Greeshm Sharma i.e. you for further investigation From the statements dated 17.05.2019 and 9.06.2019 of Shri Raju Singh Sachdeva recorded under Section 108 of the Customs Act, 1962; forensic data recovered from his mobile phones, documents recovered from travel agency M/s Travel in Style and other corroborative evidences, as aforesaid, it is evident that Shri Raju Singh Sachdeva is deeply involved in organised smuggling of Gold into India being a part of syndicate run by Ms. Neha Sharma and Shri Tarun Jain actively aided and abetted by Shri Greeshm Sharma i.e. you. His involvement appears to be deep rooted which is amply manifested by the unique modus operandi, number of persons involved, scale of operation, his contacts and dealings with other members of the syndicate, viz., Shri Monish Kumar and Shri Vikas Kumar with a well thought out plan. Evidences collected, so far, clearly indicate that the smuggling network is being run and oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 135may be launched against you i.e. Shri Greeshm Sharma and adjudication proceedings are also likely to be initiated soon, which are however, punitive in nature and independent of the preventive detention provided under the COFEPOSA Act, 1974. However, considering your i.e. Shri Greeshm Sharma s high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilised by detention under the COFEPOSA Act, 1974 with a view to prevent you from smuggling goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future. 7. As regards retraction of you i.e. Shri Greeshm Sharma vide your bail application dated 15.07.2019,1 have noted that your house was searched on 30.06.2019 where you i.e. Shri Greeshm Sharma were found and as per the Summons issued to you, you visited the IGI airport and your statements were recorded under section 108 of the Customs Act, 1962 on 30.06.2019 and 1.07.2019 in total 12 pages of your own handwriting. So your allegation of signing of pre narrated statements and blank papers is nothing but an afterthought. Further, all retraction towards your voluntary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Letter of Extrication could establish that the incriminatory statements made under Section 108 of the said Act by him were not in his handwriting, are not tenable and has already been considered and rejected by the Advisory Board, comprising three Judges of this Hon ble Court. Consequently, the said Letter of Extrication cannot be said to be a vital or relevant document, the non-consideration of which by the Detaining Authority, would result in vitiating the Detention Order. Similar is the position qua the Summons and the Non-Recovery Panchnama , referred to vigorously on behalf of the Detenue. Insofar as, the Summons dated 30.06.2019 is concerned, the same was duly received by the Detenue, who put his signatures on the face of it, as token of receipt of the same and voluntarily went to the IGI Airport, in compliance thereto. Therefore, the assertion of the Detenue that, the said Summons were not relied upon by the Sponsoring Authority or placed before the Detaining Authority does not vitiate the subjective satisfaction recorded by the Detaining Authority, since the same was not relevant for the formation of the subjective satisfaction of the Detaining Authority. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification. 43. 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. It does not mean that the subjective satisfaction of the Detaining Authority is immune from judicial reviewability. By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested. 13. On a conspectus of the decisions of the Hon ble Supreme Court in Dimple Happy Dhakad (supra) and Ankit Ashok Jalan (supra), it is axiomatic that, though procedural safeguards are required to be rigorously adhered to and that although the courts must lean in favour of personal liberty of the citizens and remain conscious and zealous in upholding the personal libert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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