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Synopsis

The Supreme Court recently quashed the order of preventive detention of a man for his alleged involvement in organized smuggling, after finding that the detaining authorities had failed to consider whether the conditions imposed upon his release on bail were sufficient to prevent him from further engaging in such activities.

A bench of Justices Sudhanshu Dhulia and K Vinod Chandran allowed an appeal filed by Jyoti Kitty Joseph, the wife of the detenu, under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, and ordered his release if not in custody in any other case.

The detention order was passed on May 9, 2024, and the jurisdictional Magistrate released the detenu on April 16, 2024, on certain conditions. The specific ground raised by the Directorate of Revenue Intelligence regarding the apprehension of involvement in similar types of smuggling activities was considered by the jurisdictional Magistrate while granting bail and imposing conditions to prevent the detenu from engaging in such smuggling activities. 

The plea contended that the man had been behind bars for almost a year, with the arrest occurring on March 5, 2024. It was also alleged that there was a clear non-application of mind since the allegations were 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. Their attempt was to somehow obtain preventive detention of the person who was arrested based on the alleged offences, for which he had been granted bail by the jurisdictional court, with very stringent conditions.

It was also submitted that when a judicious consideration was possible as to whether the appellant should be taken back into custody, an order for preventive detention ought to have been avoided, as this would violate the salutary provisions under Articles 14, 19, and 21 of the Constitution.

The court, however, noted that criminal prosecution had been launched, and preventive detention was ordered based on the very same allegations of organized smuggling activities, carried out through a network set up and revealed during successive raids conducted at various locations, based on specific information received, which led to the recovery of a huge cache of contraband.

When bail was granted by the jurisdictional court, that too on conditions, the detaining authority ought to have examined whether these conditions were sufficient to curb further indulgence in identical activities, which is the very basis of the preventive detention order, the bench said.

"The detention order, being silent on that aspect, we interfere with the detention order only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations which also have led to the preventive detention, assailed herein, to enter a satisfaction as to whether those conditions are sufficient or not to restrain the detenu from indulging in further similar activities of smuggling," the bench said.

The court pointed out that nothing was stated by the detaining authority as to why the conditions were not sufficient to prevent the detenu from engaging in further smuggling activities, which was the specific ground on which the conditions were imposed while granting bail.

"We are not examining the conditions imposed by the Magistrate since it was for the detaining authority to look into it and enter into a subjective satisfaction as to whether the same were sufficient to avoid preventive detention or otherwise, insufficient to restrain him from further involvement in similar smuggling activities," the bench said.

If there is consideration, then the reasonableness of the consideration could not be scrutinized by judicial review, the bench said.

"Since we are not sitting in appeal and the provisions for preventive detention provide for such a subjective satisfaction to be left untouched by the courts, however, when there is no such consideration, then we have to interfere," the bench said.

The bench pointed out that in Ameena Begum v. State of Telangana and others (2023), the observations in Rekha v. State of TN (2011) that preventive detention is impermissible when the ordinary law of the land is sufficient to deal with the situation were per incuriam to the Constitution Bench decision in Haradhan Saha v. State of WB (1975), in the limited judicial review available to constitutional courts in preventive detention matters.

The courts would be incapable of interference by substituting their own reasoning to upset the subjective satisfaction arrived at by the detaining authority, especially since preventive detention law is not punitive but preventive and precautionary, it said.

"In the present case, we are not concerned as to whether the conditions imposed by the Magistrate would have addressed the apprehension expressed by the detaining authority of the detenu indulging in further smuggling activities. We are more concerned with the aspect that the detaining authority did not consider the efficacy of the conditions and enter any satisfaction, however subjective, as to whether those conditions were sufficient to restrain the detenu from indulging in such activities," the bench said.

The court, as the sentinel on the qui vive, examined this compelling ground, which was not argued before it.

The detenu was alleged to be a habitual offender and a key member of a well-organized syndicate involved in smuggling and disposing of foreign gold brought illegally into India from Dubai. This activity was habitually carried out through his associates without declaration before the customs authorities and without payment of applicable duties. The smuggling of gold was for the purpose of illegal profiteering, putting the national economy in danger, which was sought to be curbed by the detention order. The detenu was found to have engaged in activities amounting to smuggling under both the Customs Act and the COFEPOSA Act.

It was alleged that after the release of the detenu from jail in Baroda, in October 2013, pursuant to the bail granted by the Supreme Court, the detenu officially changed his name from "Afzal Haroon Batatawala" to "Sameer Haroon Marchant," under which name he was arrested in a case of gold smuggling in 2017.

Case Title: Jyoti Kitty Joseph Vs Union of India