1. All the three petitions have been filed under Articles 14 , 21 , 22 & 226 of the Constitution of India against the Order of detention passed by the Authorities against the petitioner in respective petitions.

2. The Petitioner in Special Civil Application No. 22512 of 2019 namely Rutugna Arvindkumar Trivedi has challenged the order of detention dated 2.8.2019 bearing F No. PD­ 12002/12/2019­ COFEPOSA on the various grounds averred in the petition.

2.1 Whereas the Petitioner in Special Civil Application No. 23147 opf 2019 namely Lokesh Subhash Sharma has challenged the Order of detention dated 02.08.2019 bearing F No. PD­12002/16/2019­ COFEPOSA on various grounds.

2.2 The Petitioner in Special Civil Application No. 1713 of 2020 namely Nita Chunilal Parmar has challenged the Order of detention dated 2.8.2019 bearing F No. PD­ 12002/14/2019­ COFEPOSA on the grounds mentioned in the Petition.

2.3 All the petitioners have prayed to quash and set­aside the impugned order of detention passed against them by detaining authorities and set them free.

3. All the three petitions have been arisen from the same incident and on the same set of facts and materials and, therefore, all the three petitions are being disposed of by this common judgment. This Court has considered voluminous documents placed on the record of this case, consisting of more than 1500 pages, which includes written submissions of both the sides and the decisions cited at the bar.

3.1 In view of the facts that the detention orders passed against the respective petitioners of the three petitions have been arisen from the same set of facts and circumstances and they are interwoven, the facts of Special Civil Application No. 22512 of 2019 is taken as a lead matter.

4. The brief facts of the Petition is that on 4.6.2019, the Officers of Customs AIU Unit, Sardar Vallabhbhai International Airport came across incident of smuggling of gold by some persons in connivance with the Airport Staff, and when the scope of investigation was broadened, the authorities came to know that one Shri Rutugna Arvindkumar Trivedi (Petitioner in Special Civil Application No. 12512 of 2019) along with others, was responsible for organising the entire modus operandi of smuggling of gold.

It is alleged that on 4.6.2019, the Officer of the Deputy Commissioner of Customs, Ahmedabad found one Mr. Jignesh Savaliya, working as Assistant Duty Officer of Globe Ground India Private Limited behaving in a suspicious manner in the Aerobridge of Bay No.32 and was found to be in possession of one yellow metal. It is further alleged that the Officers of Deputy Commissioner of Customs, Ahmedabad conducted personal search of Mr. Savaliya and found him to be carrying nine brwon packets ( in his blazer and waistcoat worn by him and were not concealed) in the presence of Panchas under Panchnama dated 4.6.2019. Upon opening of the packet, it was found that the same was containing 47 yellow metal bars i.e. gold bars (22 pieces each of 1 Kg and 25 pieces each of 100 grams), which was tested by a Government approved Valuer.

4.1 It is alleged that the said Mr. Jignesh Savaliya in his statement stated that the said gold bars were given to him by a passenger named Mr. Lokesh Sharma (Petitioner of SCA No. 23147 of 2019) at Aerobridge of Bay No. 32 and that he was supposed to hand over the said gold bars to Mr. Rutugna Arvindkumar Trivedi, petitioner herein, outside the Airport terminal. Mr. Savaliya has also allegedly informed that Mr. Lokesh Sharma had exited the Airport terminal and upon the instruction of the Officers of the Deputy Comissioner of Customs, Ahmedabad, Mr. Savaliya called Mr. Sharma at Gate No.5 where Mr. Lokesh Sharma was Page 4 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT apprehended.

4.2 It is alleged that upon physical search of Mr. Sharma and examination of his baggage, nothing incriminating was found but during the checking of black coloured trolleybag carried by Mr. Lokesh Sharma, the business card of the present Petitioner was found and as per statement of Mr. Lokesh Sharma, nine brown coloured packets containing gold bards were handed over to him in the duty free area of Dubai Airport by the wife of the present petitioner.

4.3 It is alleged that thereafter Mr. Jignesh Savaliya and Mr. Lokesh Sharma were arrested and confessed that gold was to be handed over to Mr. Rutugna Trivedi or to any other person as per instruction of Mr. Rutugna Trivedi. However, later on both of them retracted their statements before the learned trial Court in bail application. It is alleged that Office of Akhandjyot Private limited and other offices and residence of all the three petitioners and other persons who have been involved in the smuggling activities, search was carried out by the Authorities and various documents were seized under detailed Panchnama in presence of Panchas and the officers of the concerned authorities.

4.4 It is alleged by the petitioner that on 15.6.2019, he along with others preferred a Special Criminal Application No.6629 of 2019, praying for a writ of prohibition directing Page 5 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT to prohibit the authorities from arresting the petitioner and others without following the mandatory provisions of the Code of Criminal Procedure , 1973. The present petitioner and others also sought permission to have an advocate at visible, but not audible, distance during their interrogation by the Officers of the Deputy Commissioner of Customs, Ahmedabad. Accordingly, prayer was granted by the Court. It is further alleged that on 2.8.2019, the impugned order of detentions were passed against the petitioners and the same is challenged on the following grounds:

5. The affidavit­in­reply on behalf of respondent is filed by the Authority wherein they have opposed the petition on all the grounds and has submitted that the detention order is legal and valid and it was passed after subjective satisfaction of the authority on the materials laid before him and the materials which include the seizure of documents, email chats, Accounts, dairy maintained by the accused, materials emerged from the statement of the travel agents of Page 8 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT the details of the travel by concerned persons in same flight and the fact averred from the statement which were recorded under Section 108 of the Customs Act, which are admissible in evidence, have been taken into consideration by the detaining authority and it is legal and valid. It is also submitted that considering the magnitude of offence of smuggling of gold in India, it was necessary to pass detention order in respect of the petitioners to prevent them from indulging into acitivity of smuggling of gold into India. While referring to various statement from various persons, it has been stated that retraction of statement by certain persons have no bearing on the passing of order, as when they were produced before the learned Magesterial Court, they have not stated anything as to any pressure on them or recording of statement by the authority and by coercion it was first time raised at the time of filing of bail application before the Court. It is also contended that there is no merits in the averment made by the petitioners and the present petitions may be dismissed.

5.1 Regarding the petitioner Nita Chunilal Parmar, it is alleged that she had filed Writ Petition (Criminal) 2700 of 2019 before the Hon'ble Delhi High Court which was subsequently withdrawn and the same was dismissed by the Hon'ble High Court of Delhi as withdrawn by order dated 19.11.2019.

6. The affidavit­in­reply filed on behalf of respondent Nos. 1 and 2 are also filed in the matter making identical averments.

7. The Petitioner has filed rejoinder affidavit in the matter denying the averments made by the respondent in their reply affidavits and he has stated that two other co­detenu namely Mehul Rasiklal Bhimani has filed his petition before Hon'ble Delhi High Court wherein the Hon'ble Delhi High Court has set­aside the detention order which was based on the same set of facts and materials of this case as the Hon'ble Supreme Court in the case of Pramodgiri Goswami held that there was no nexus between event of March, 2013 and March, 2015. The Supreme Court has released the detenue by setting aside the order of the detaining authority. This judgment has been followed by Delhi High Court in Writ Petition filed by Mr. Mehul Bhimani. It is also stated that in view of this, the petitions may be allowed and they be set at liberty.

8. Heard Mr. S.H.Sanjanwala, learned Senior Counsel with Mr. Dilip Kanojiya, learned advocate for the petitioners, Mr. Devang Vyas, Assistant Solicitor General with Mr. Nirzar Desai, learned advocate for the Respondent No.3 and Mr. Harsheel D. Shukla, learned advocate for respondent No.1 and 2 at length. Perused the materials placed on record, taken into consideration the written suhbmissions Page 10 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT filed by both the sides and rejoinder written submission of the Petitioners and the decisions cited at bar.

9. Mr. Sanjanwala, learned Sr. Counsel for the petitioners submitted that the detention order under challenge is patently bad and illegal and it is against the safeguards envisaged by COFEPOSA Act and Article 22(5) of the Constitution of India. Mr. Sanjanwala, learned Sr. Counsel has also submitted that there is no direct involvement of the detenu of the present case but the role has been attributed on the two retracted statement of the two detenu for arriving to the conclusion and arising at a prognosis for future that the detenu is likely to indulge into prejudicial activity again. It is submitted by Mr. Sanjanwala, learned Sr. Counsel that the two co­detenu on whose statements reliance is placed namely Jignesh Savaliya and Mr. Lokesh Sharma have retracted their statements by filing affidavits immediately before the Magistrate when they were produced before him and they have clearly stated that their statements have been recorded by coercion and force and they are not voluntary in nature. It is further submitted by learned Sr. Counsel for the petitioners that there is no explanation in the grounds of detention as to why their retracted statements have not been believed by the Detaining Authority except saying that it is not voluntary. It is further submitted that even bare look at the grounds would show that such statements could not have been given Page 11 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT by both the co­detenu and they are factually incorrect.

9.1 According to Mr. Sanjanwala, learned Sr. Counsel for the petitioners, the reasons given for not accepting the retraction as contained in Paragraph XXXIX is not correct. It is submitted that the retraction made by Jignesh Savaliya and Jitendra Dhanji Rokad have been wrongly discarded on totally erroneous reasoning. It is submitted that the detention order passed on such retracted statements is required to be quashed and set­aside.

9.2 Mr. Sanjanwala, learned Sr. Counsel for the petitioners has also submitted that there is total non­ application of mind as to under which Clause of Section 3 , the detenu is being detained. While inviting attention of this Court on the order of detention, it has been submitted that it is being done with a view to prevent him from smuggling gold; abetting the smuggling of goods; and dealing in smuggled goods otherwise then by engaging in transporting of concealing or keeping smuggled goods, in future. He has also submitted that as per the settled law, the Detaining Authority is bound to deliver its comments to the various clauses of Section 3 as to under which clause, the activity of the detenu would fall. Assailing the detention order, Mr. Sanjanwala, learned Sr. Counsel has also submitted that there is no explanation in the grounds of detention as to under what Clause of sub­section (1) of Section (3) would Page 12 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT fall. While inviting the attention of this Court to the affidavit of the respondent as well as the detention order, learned Sr. Counsel has submitted that as per the respondent, the entire racket has been orchestrated and masterminded by Shri Rutugna Trivedi and he co­opted Shri Mehul Bhimani, Shri Jitendra Rokad and Shri Pramodgiri Premgiri Goswami and Shri Vipul Joshi as Financers. According to him, the whole case regarding conspirary of smuggling falls to the ground in view of the subsequent development that Shri Rajubhai Goswami has been released by the Hon'ble Supreme Court and Mr. Mehul Bhimani has been released by the Delhi High Court. While referring both these decisions, the learned Sr. Counsel for the petitioners has submitted that the whole theory of conspiracy of smuggling does not survive. He has also submitted that the detenu was not a party to the conspiracy to smuggled gold and they were other persons which are mentioned in the grounds. Learned Sr. Counsel has also submitted that the present petitioner is in no way connected with the so­called conspiracy and smuggling of gold and there is no nexus between the earlier transaction with the present one.

9.3 Mr. Sanjanwala, learned Sr. Counsel for the petitioner has also submitted that admittedly, in the present case, for the allegations made for all the trips excluding the last 2019 tips, there is not even an allegation that there were any such trips in which the gold was seized. According Page 13 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT to learned Sr. Counsel, unless the gold is seized, it cannot be confiscated and, therefore, it would not amount to smuggling. While referring Section 111 and 113 of the Customs Act, learned Sr. Counsel has submitted that when the goods have not been found, it cannot be subject to any confiscation and the aforesaid two Sections would not be applicable in the present case.

9.4 Regarding other sub­clauses of Section 3 , he has submitted that the same would not apply for the reason that the detenu has not done any overt act which would amount to abetting of smuggling of the gold. He has also submitted that even if the gold is purchased by the detenu's money, it does not amount to keeping of smuggling or there is nothing to show that the detenu has done any overt act in dealing with the smuggling of goods otherwise than by engaging in transporting, concealing or keeping smuggled goods, in future.

9.5 Regarding grounds stated in the detention order, learned Sr. Counsel has submitted that the grounds mentioned therein are not valid and it suffers from vagueness and the rights of the detenu for representation has been affected under Article 22(5) of the Constitution of India. According to the learned Sr. Counsel, except retracted statements of co­detenu, there is no independent evidence to connect the present accused with the alleged smuggling Page 14 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT of the gold. On the delay part in passing the order of detention, the learned Sr. Counsel for the petitioner has submitted that the incident alleged is that of 4.6.2019 and the order of detention is passed on 2.8.2019 and there is no explanation in the grounds of detention regarding the delay, with the result that unexplained delay vitiates the continued detention of the detenu. While referring the affidavits­in­reply of the respondent, learned Sr. Counsel has also submitted that the delay is also not explained in the said affidavit.

9.6 Mr. Sanjanwala, learned Sr. Counsel for the petitioner has also submitted that order of detention, is punitive in nature. Learned Sr. Counsel has also submitted that it is an admitted position that the present detenu Mr. Lokesh Sharma was in judicial cusotdy when the order of detention was passed and no cogent reasons are given why preventive detention was necessary. According to him, the impugned order is punitive in nature and not preventive detention as it clearly emerges from the fact that Mr. Lokesh Sharma and Divya Bhundia have been granted default bail. He has also submitted that the detention order was passed at the stage when there was no material with the authority to file charge­sheet. Therefore, according to him, it is a colourable exercise of powers and the punitive detention was resorted to.

9.7 While inviting the attention of this Court regarding the various cases, learned Sr. Counsel for the petitioners has submitted that at the time of passing of impugned order of detention, the detenu Mr. Lokesh Sharma was already in judicial custody as he was arrested on 4.6.2019 and his Bail Application was rejected by the Sessions Court on 6.7.2019 and in reply to the Bail Application on 2.7.2019, no apprehension is expressed that if released on bail, the detenu is likely to indulge into same activity. According to him, the default bail was granted on 29.8.2019.

9.8 While inviting the attention of this Court to various Panchnama and statements, learned Sr. Counsel has submitted that nothing was found in the premises of the petitioner and it clearly show that there was no involvement of the present petitioner. He has also contended that the material seized by drawing panchnama are not of such a nature to connect the present accused with the so­called activity of smuggling.

9.9 Regarding Constitutional right under Article 22(5) of the Constitution of India and also Statutory right under Section 3 of COFEPOSA, learned Sr. Counsel has submitted that it is settled law that representation is required to be considered expeditiously by the authority to whom it is made and any delay in considering the representation would render the continued detention illegal so also, the Page 16 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT detention void­ab­initio.

9.10 While referring the material placed on record, learned Sr. Counsel has submitted that the petitioner had duly made representation on 16.9.2019 which was duly received on the same day i.e. 16.9.2019 and the receipt is also issued. The said representation has been rejected on 21.10.2019 and thus there is clear delay of nearly one month and five days in considering the representation and communicating the result thereof to the petitioner. According to learned Sr. Counsel, the delay has vitiated the detention of the detenu and therefore the impugned order of detention requires to be quashed and set­aside and the petitioner is required to be set at liberty forthwith.

9.11 Learned Sr. Counsel has further submitted that the petitioner has also made similar representation to the Chairman, Advisory Board, COFEPOSA on the same day i.e. 16.9.2019 but till date he has not received any communication from the Advisory Board. He has also contended that the petitioner has also made representation to the detaining authority on 16.9.2019 but he has not received any reply from the Detaining Authority. Learned Sr. Counsel has also referred to another representation dated 16.12.2019 made by the petitioner to the Joint Secretary, COFEPOSA and has submitted that it is yet not decided by the Authority and there is a delay on the part of the Authority, which vitiates the detention of the detenu.

9.12 While referring to the certain facts which are narrated in the detention order, wherein the Authority has considered the Email messages as well as Wechat messages and other documents, which have been taken into consideration by the detaining authority, are not provided to the detenu, which has resulted into breach of his Constitutional right. According to him, if such documets are not provided then there will be no proper observation of procedural safeguard in the eyes of laws as required under Section 3 of COFEPOSA and therefore, the order is vitiated.

9.13 On all these grounds, Mr. Sanjanwala, learned Sr. Counsel has submitted to allow the petitions and set­aside the impugned orders of detention passed against each petitioners.

FURTHER SUBMISSIONS IN SCA NO. 23147 OF 2019 (PETITION OF MR. LOKESH SHARMA)

10. In addition to the aforesaid general submissions made by Mr. Sanjanwala, learned Sr. Counsel for the petitioners pertaining to all the petitioners, has also made further submission in relation to detenu Mr. Lokesh Subhash Sharma and has submitted that when the detention order was passed the detenu was already arrested on 04.6.2019 and his bail appplication was rejected by Sessions Court on 6.7.2019. He has also submitted that in reply to the bail Page 18 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Application, the detenu, on 2.7.2019, no apprehension is expressed that if released on bail, the detenu is likely to indulge in same activity. He has further submitted that the documents which are referred to by the Authority are totally illegible and therefore it has affected the right of the detenu to make effective representation under Article 22 of the Constitution of India.

10.1 Mr. Sanjanwala, learned Sr. Counsel for the petitioners has also contended that as per the settled law, however grevious it may be, detention cannot be ordered on the single incident. For this argument, he has relied on the decision in case of Pooja Batra v. Union of India and Others , reported in AIR 2009 SC 2256 and the decision in case of Gimik Piotr v. State of Tamil Nadu and others, reported in AIR 2010 SC 924.

10.2 Mr. Sanjanwala, learned Sr. Counsel for the petitioners has also contended that along with the representation which was made by the detenu on 16.9.2019, the detenu has demanded various documents to make his representation effective and has also brought to the notice of the authority that the documents are illegible. According to him, the Authority has not furnished the documents as demanded and these facts has affected his right of representation. He has also submitted that the detenu in the matter does not know English and Gujarati Languages and only knows Hindi language. He has also Page 19 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT submitted that therefore the detenu ought to have been supplied with the grounds of detention in the vernacular language which he understands and in this matter this is not done. He has also contended that detenu had demanded translation of those documents in the representation which is not provided. He has further submitted that there is no other corroborative evidence except his statement and the Statement of Jignesh Savaliya, who have already retracted from their previous statement. Mr. Sanjanwala, learned Sr. Counsel has also relied on the following decisions:

iii Satya Narayan Subudhi v. Union of India, reported in AIR 1991 SC 1375.

FURTHER SUBMISSION IN RELATION TO SPECIAL CIVIL APPLICATION NO. 1713 OF 2020 IN THE CASE OF NITA CHUNILAL PARMAR:

He has also submitted that the detenu has not done any act or ommission with regard to gold and that she has not acquired possession of any smuggled goods. While drawing attention of this Court to Wechat message on 8.10.2018, the learned Sr. Counsel has submitted that the only allegation made in the ground of detention is that there was Wechat message on 8.10.2018, however, no gold has been found between 19.6.2018 and 5.10.2018 and, therefore, the order of detention is bad in law.

11.2 Mr. Sanjanwala, learned Sr. Counsel has also submitted that the present detenu has been detained on the ground that there was Wechat message alleged to be sent by co­detenu Jignesh Savaliya on 8.10. 2018 and that Page 21 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT statement has been retracted by him and even from that date, there is an unexplained delay of more than 8 months. Learned Sr. Counsel has contended that present incident is that of 4.6.2019 and the Order of detention is passed on 2.8.2019 and there is clearly a delay in passing the detention order with the result that unexplained delay vitiates the continued detention of the detenu. It is also contended that after such long delay, there was no purpose to detain the detenu.

11.3 Mr. Sanjanwala, learned Sr. Counsel for the petitioners has submitted that the documents like Four Pen Drives, Pen Drive No.3, Email dated 20.6.2014 addressed by Rutugna Trivedi to Nita Parmar, Ticket details confirmation, Panchnama of residential premises of detenu on 8.6.2019, Whatsapp messages from the petitioner on 2.6.2019 from Mobile No. 9925833434 to 9099988877 - Lokesh Sharma, Wechat message referred to in the statement of Jitendra Rokad, Whatsapp message dated 1.6.2019, email dated 20.6.2014, email dated 28.8.2014, Statement of Mehul Bhimani, Print outs taken from Pen Drive No.3 marked as Imation 16GB under Panchnama dated 27.6.2019 are not supplied to the detenu.

12. Mr. Sanjanwala, learned Sr. Counsel for the petitioners has relied on the following decisions:

Union of India & Ors.

15. Copy of Order dated 27.1.2020 in Writ Petition (Cri.) 388 of 2019 passed by Hon'ble Supreme Court of India in case of Nilesh Parekh v. Union of India & Anr. ;

16. Copy of Order dated 3.2.2020 in SCA No. 18941 of 2019 in the case of Sanjaykumar Mulchanbhai Shah v. Union of India passed by Coordinate bench;

17. Copy of the Judgment dated 5.2.2020, passed by te High Court of Delhi in the case of Mehulbhai Rasikbhai Bhimani v. Union of India and Others , in Writ Petition (Cri.) No. 2528 of 2019;

18. Copy of Order dated 27.2.2020 in SCA No. 18938 of 2019 in the case of Jitendrakumar Dhanjibhai Rokad v. Union of India , passed by Coordinate bench;

19. Copy of the Judgment passed by Hon'ble Supreme Court in case of Ankit Ashok Jalan v. Union of India and Ors , passed in Writ Petition (Cri.) 362 of 2019;

20. Pankajkumar Chakrabarty and Others v. State of West Bengal, reported in AIR 1970 SC 97;

21. Harish Pahwa v. State of U.P. and Ors , reported in AIR 1981 SC 1126;

22. Mohinuddin v. District Magistrate, Beed and Others , reported in AIR 1987 SC 1977;

23. Aslam Ahmed Zahire Ahmed Shaikh v. Union of India and others , reported in AIR 1989 SC 1403;

24. Rama Chondu Borade v. V.K. Saraf, Commissioner of Page 24 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Police and others , reported in AIR 1989 SC 1861;

25. Mahesh Kumar Chauhan @Banti v. Union of India and others , reported in AIR 1990 SC 1455;

26. Smt. Gracy V. State of Kerala and another, reported in AIR 1991 SC 1090;

27. Prem Lata Sharma (Smt) v. District Magistrate, Mathura and others , reported in (1998) 4 SCC 260;

28. Usha Agarwal v. Union of India and others , reported in (2007) 1 SCC 295;

29. S. Gurdip Sing v. Union of India and others , reported in AIR 1981 SCC 362;

30. Shivkripa Ispat Pvt. Ltd. v. Commissioner of Central Excise & Customs, Nasik, reported in 2009 (235) E.L.T 623 (Tri­ LB)

31. Munjal Showa Ltd. V. Commissioner of Central Excise, Faridabad , reported in 2008 (227) E.L.T 330 (Tri­ Del);

32. Pooja Batra v. Union of India , reported in AIR 2009 SC 2256;

33. Gimik Piotr v. State of Tamil Nadu & Ors., reported in AIR 2010 SC 924;

13. While referring to the object of the COFEPOSA Act as well as provisions contained in sub­clause (1) of Section 3 of the Act as well as under Sections 2(39) , 111 and 113 of the Customs Act and the power of the Customs Officers to arrest a person under the Customs Act and recording of statement of such person under Section 108 of the Customs Page 25 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Act, Mr. Devang Vyas, learned ASG has vehemently submitted that these legal provisions are made to see to it that no illegal activities affect the foreign exchange as well as economic condition and the security of the State. He has also contended that any action passed under the COFEPOSA Act for detaining any person, particularly as provided statutorily, is a preventive action and not a punitive action. While referring the documentary evidence on record as well as entire order of detention and the affidavit­in­reply and the contents of certain statements referred to in detention order, Mr. Devang Vyas, learned ASG has submitted that in present case, the activities of smuggling was organized secretly and it is operated since 2014­15 and till last incident almost 4886.2 Kg of gold have been smuggled into India from Dubai and the value of gold is worth Rs.1250 Crores and evasion of duty is almost Rs.478 Crores. According to Mr.Vyas, learned ASG, the gold has been imported clandestinely, no duty is paid and there is illegality committed by all the persons against whom the authority has passed detention order. By referring the role of each person, learned ASG Mr. Vyas has submitted that individual petitioners have taken part in smuggling of the gold. Mr. Vyas, learned ASG has also submitted that the gold is restricted item as per Customs Circular and foreign trade policy. Mr. Vyas, learned ASG has also submitted that only the empowered authority can import gold and no other person can import gold. Mr. Vyas, learned ASG has also Page 26 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT contended that the preventive detention is only for a restricted period and there is a conflict between right of individual as well as right of society at large.

13.1 While referring the various documents, Mr. DevangVyas, learned ASG has submitted that there are oral evidence in the form of statement of various persons and documents either in electronic and/ or Accounting Book and Diary kept by the concerned persons. Learned ASG has also submitted that there are stringent provisions. He has also contended that on the secret information, Mr. Savaliya and Mr. Lokesh Sharma were arrested on 4.6.2019 with gold of almost 25 kg and during the investigation of the said incident, it was found that the smuggling activities were going on since 2014­15 and the present petitioners were party to those activities. Learned ASG has also submitted that the petitioner Mr. RutugnaTrivedi is the Mastermind and as per the modus operandi, his wife used to send gold through carrier into India and the ground staff who have free access in every part of the Airport, would hand over the same outside the Airport to another persons, who would hand it over to Rutugna Trivedi. Learned ASG has also stated that there is sufficient material on record for the detaining authority for subjective satisfaction to put the petitioners in custody i.e. preventive detention. While referring to the provisions of Customs Act as well as COFEPOSA Act , learned ASG has submitted that though there is no confiscation of any goods except on last Page 27 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT occasion, the provisions of Customs Act would be applicable and the activities of the Petitioners would definitely come within the meaning of smuggling as provided under Section 2(e) of the COFEPOSA Act and Section 2(39) of the Customs Act.

13.3 Mr. Vyas, learned ASG has also submitted that there is no need of any criminal action being pending or initiated for passing the detention order. According to him, if the action of the person concerned was smuggling or any activities detrimental to the economy and security of the State, the authority could pass preventive detention order as it is not a punitive action.

13.3 Mr. Vyas, learned ASG has also submitted that when there is ample material on record and on that basis the detaining authority has thought it proper to pass detention order, in that case the Court may not act as an Appellate Forum for scrutinizing the detention order. Learned ASG has also submitted that though judicial review of the action of the detaining authority is available, but, while reviewing the action of the authority in passing order of subjective satisfaction of the detaining authority, ordinarily the same may not be exercised by the Court.

13.4 Mr. Devang Vyas, learned ASG has also submitted that there is no delay on the part of the detaining authority in passing the impugned order as well as supplying documents thereof to the detenu. He has also submitted that so far as the petitioner Mr. Lokesh Sharma Page 28 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT is concerned, the detention order was furnished on 3.8.2019 and ground of detention was supplied on 6.8.2019, clearly within statutory provision as contained in sub­ section 3 of Section 3 of the COFEPOSA. He has also contended that, thus, there is no delay in supplying the grounds and the stand taken by the Petitioners is not sustainable.

13.5 Regarding Petitioner Rutugna Trivedi and Nitaben Parmar, Mr. Devang Vyas, learned ASG has submitted that their conduct is required to be taken into consideration by this Court as they were arrested on 14.10.2019. He has also contended that these persons have earlier filed Special Civil Application before this Court for seeking direction to the authority that they should not be arrested without following due process of law as envisaged under Criminal Procedure Code and this Court has directed the authority to permit the petitioner to appear through their advocate with rider that advocate should be at a distance wherefrom he can watch/ see but he may not hear what ever has been recorded. Learned ASG has submitted that after passing of such order, the authority has sent almost three summons to Rutugna Trivedi and Nitaben Parmar to remain present for interrogation but they did not care and, therefore, the authority had to move this Court for necessary direction to these persons to appear before the concerned authority. According to Mr. Devang Vyas, learned ASG only on passing of such order, Mr. Rutugna Trivedi and Nitaben Parmar appeared before the concerned authority and their Page 29 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT statements were recorded. Mr. Vyas, learned ASG has also submitted that this conduct of the accused are also required to be taken into consideration while deciding the matters.

13.6 Mr. Devang Vyas, learned ASG has also submitted that under Section 108 of the Customs Act, the powers are vested with the Customs Officer to record statement of 'any person', and there is no mention of word 'accused' and, therefore, according to him the exercise carried out by the Customs Authority in recording statements of various persons under Section 108 of the Customs Act, is proper and there is no breach of any of the statutory provisions.

13.7 Mr. Devang Vyas, learned ASG has also submitted that all the papers were put up before the concerned authority to the detaining authority and after considering the material available on record, and the grounds of the persons that they have retracted from earlier statements recorded by the authority, and considering all the material on being subjective satisfaction, the detaining authority has passed the impugned order, which is legal and valid.

13.8 Mr. Devang Vyas, learned ASG has submitted that detenu Mr. Rutugna Trivedi is a Mastermind and he has smuggled gold from Dubai through various persons and there is material on record to sustain the detention order. While referring to the statement of Mr. Rutugna Trivedi, learned ASG has submitted that Rutugna Trivedi has given evasive reply and on perusal of the statement it appears Page 30 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT that he is knowing almost all the persons and even used all email IDs. He has also contended that retraction of the statement at belated stage as when the person concerned were produced before the learned Judicial Magistrate, none has complaint that the statement have been recorded under pressure and coercion. According to Mr. Vyas, learned ASG the so called retraction of statement is not proper and the contents of the statement remains as it is as the person concerned has also made some writing in his name in his statement.

13.9 Regarding Petitioner Mr. Lokesh Sharma, Mr. Vyas, learned ASG has submitted that he is a person who has been arrested on 4.6.2019 and who had brought the gold from Dubai, which was handed over to him by wife of Mr. Rutugna Trivedi, at Aerobridge of Bay No. 32,Mr. Lokesh Sharmahad handed over the same to Mr. JigneshSavaliya, and upon the instruction of the Officers of the Deputy Commissioner of Customs, Ahmedabad, Mr. Savaliya called Mr. Sharma at Gate No.5 and after searching his baggage, it was found that there was gold. Mr. Devang Vyas, learned ASG has also submitted that there are statement of various staff members of the travel agency as well as the person working at Airport, which clearly suggest that smuggling activities were carried out at the instance of Mr. Rutugna Trivedi and the carrier has smuggled gold at the instance of Mr. Rutugna from his wife at Dubai. While referring the Wechat messages as well as the contents of the Page 31 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Diary, wherein names of various persons have been mentioned and the quantity of the gold and amount is also mentioned, Mr. Vyas, learned ASG has also contended that all these documents establish that the account for smuggling gold were settled through emails.

13.10 Regarding retraction of statements, Mr. Vyas, learned ASG has also submitted that during the hearing of the Bail Application at the trial Court, the Petitioners have raised the point of retraction of their statement and even then the learned trial Court had not initially granted bail to the concerned persons. Mr. Vyas, learned ASG has stated that even if no criminal action is taken against the concerned persons, the concerned persons can be detained under the provisions of COFEPOSA Act .

13.11 Mr. Vyas, learned ASG has also contended that the date of retraction of all the concerned detenu is 11.6.2019 i.e. from the 7 day of the arrest of concerned persons. He has also contended that for passing detention order the grounds have already been provided in the impugned detention order.

13.12 While referring the documentary evidences, Mr. Vyas learned ASG has submitted that commission for carrying out the work have been paid either by Mr. Rutugna Trivedi or by Nitaben Parmar to the concerned persons in cash. While referring to the statement of Mr. Jigensh Savaliya, who has also filed separate Special Civil Application, Shri Vyas, learned ASG has submitted that the Page 32 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT salary of Mr. JigneshSavaliya is Rs.10,000/­ however he has purchased a residence in posh area.

13.13 Mr. DevangVyas, learned ASG has also contended that the retraction of the statement by the detenu is made after filing of the Bail Application and there was no retraction in the beginning. He has also submitted that due to retraction of the statement by the other detenu, even if it is believed, then there is further material placed on record i.e. statement of ground staff as well as staff of travel agent and the copy of the Note­book and exchange of messages on Wechat and through email, as well as Panchnama, to sustain the detention order.

13.14 Mr. Vyas, learned ASG has also submitted that the Advisory Board has confirmed detention order on 1.1.2020 in respect of Rutugna Trivedi as well as Nitaben Parmar as both of them were arrested on 14.10.2019 and the grounds of detention were supplied to them on 16.10.2019. He has narrated that detenu Nita Parmar was arrested on 14.10.2019; grounds were supplied on 16.10.2019 reference to the State was made in 20.10.2019, the report from Advisory Board was dated 19.10.2019 and the confirmation by the authority is dated 1.1.2020. Whereas regarding Lokesh Sharma, learned ASG has submitted that he was arrested on 3.8.2019 and grounds were supplied on 6.8.2019, reference to the State was made on 28.8.2019; report from Advisory Board was dated 14.10.2019 and confirmation was given on 25.10.2019. Mr. Page 33 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Vyas, learned ASG has submitted that there is no delay on the part of detaining authority and the statutory provisions, as contained in Section 3 as well as Section 8 of the COFEPOSA Act are fulfilled strictly by the authority.

13.15 Mr. Vyas,learned ASG has submitted that the basic facts which are narrated in the impugned detention order itself is a ground for detention. While relying on the following authority, learned ASG for the respondent has submitted to dismiss all the three petitions.

14. Mr. Devang Vyas, learned ASG for Mr. Nirzar Desai, learned advocate for respondent has relied on the following decisions:

15. Mr. Sanjanwala , learned Sr. Counsel for the petitioner in the rejoinder to the points raised on behalf of respondent authority, has vehemently submitted that the basis of the arguments of Mr. Devang Vyas, learned Assistant Solicitor General (ASG) appearing for the respondents is to create a prejudice regarding the quantity of Gold and the amount involved, which is hardly relevant for the consideration by the Court while dealing with detention orders. While referring to the various judgments, which he has relied upon during his argument earlier, he has submitted that the procedural sanctity has to be satisfied by the authority and it is incumbent duty of the detaining authority to explain the delay occurred in the matter. While inviting the attention of the Court regarding the ground raised in the petitions, which were added due to passing of detention order, and the ground raised therein as well as the reply filed by the authority, the learned Sr. Counsel has submitted that points raised by the Petitioner in his petition, has not been denied specifically by the authority Page 35 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT and, therefore, the sole ground of delay is sufficient to set­ aside the detention order as there is inordinate unexplained delay of 59 days from the date of detention order and about 4 years from 2013­2014 and there is no explanation given in the ground of detention nor in affidavit­in­reply.

15.1 Mr. Sanjanwala, learned Sr. Counsel has also submitted that the decisions relied upon by the Petitioners have not been referred to in the argument of Mr. Devang Vyas, learned ASG. He has submitted that in detention matter it is always found that when the Court have found that the detenu is entitled to be released on one ground, it is not necessary to go into the details of the other grounds. While referring to the judgment of the co­ordinate bench of Justice S.H.Vora in a similar matter, which was arisen out of the same facts and circumstances, Mr. Sanjanwala, learned Senior Counsel has submitted that those judgments squarely applicable to the present facts and on the ground of parity, the present petition needs to be allowed by this Court. Learned Sr. Counsel has also submitted that the other co­detenu, who have filed the writ petition before the Delhi High Court, have been released on the same ground of delay by following the judgment passed by Hon'ble Supreme Court in case of Pramodgiri Goswami. Mr. Sanjanwala, learned Sr,. Counsel has also stated that reliance placed by Mr. Vyas, learned ASG on the provisions of Section 111 and 113 of the Customs Act is totally misconceived as there is Page 36 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT no any act or omission by the detenu and if it is not so, the goods will not be liable to be confiscated under Section 111 or Section 113 of the Customs Act. According to him, there is no allegation that there were any such trips in which gold was seized. According to him, unless the gold is seized it cannot be confiscated and, therefore, it would not amount to smuggling. While relying upon the decision referred to by him in his earlier submission, reported in 2008 (227) ELT 330 and 2009 (235) ELT 623, learned Senior Counsel has submitted that if the goods are not seized, there is no question of confiscation and there is no question of application of Section 111 or Section 113 of the Customs Act and, therefore, it would not fall within the definition of smuggling as contemplated under Section 2(39) of the Customs Act. Learned Senior Counsel has further submitted that the amount of gold and value thereof are totally immaterial and the grounds stated in the detention order are not in consonance with the relevant facts. He has also contended that certain documents have not been supplied to the detenu and certain documents are illegible, which are at page Nos. 278, 374, 377, 381 and 429 of Paper­book and which fact has affected the valuable right of the Petitioners of making representation. He has also contended that though this point has been raised in the Petition, there is no reply in the affidavit­in­reply.

15. 2 The contention raised by Mr. Devang Vyas, learned ASG regarding period of detention, to be decided by Page 37 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Advisory Board, learned Senior Counsel has stated that argument of learned ASG is contrary to Section 10 of COFEPOSA, which provides for maximum period of detention i.e. one year and there is no flexibility.

15.3 Regarding the submission of Mr. Devang Vyas, learned ASG that in the detention matter, time is not relevant, learned Senior Counsel has submitted that the submission made by Mr. Vyas, learned ASG is contrary to the order of the Hon'ble Supreme Court in other matters. Regarding the submission of Mr. Vyas, learned ASG that retraction is an afterthought, learned Senior Counsel has submitted that it cannot be believed even with reference to the grounds of detention as statement was recorded on 11.6.2019 and the same was retracted when the Petitioner was produced before the learned Magistrate. That JitendraRokad was arrested on 29.6.2019 and was produced before the learned Magistrate on 1.7.2019 and, therefore, there is no afterthought or delay. While in the case of Mehul Bhimani, the same thing has happened. According to him, this fact vitiates the Order of detention as, as retracted statement of co­detenu cannot be the basis of the detention order.

15.4 Regarding decision relied upon by Mr. DevangVyas, learned ASG, the learned Senior Counsel Mr. Sanjanwala has submitted that the same are not on the points and they are distinguishable on facts. Learned Senior Counsel has prayed to set­aside the impugned detention Order in Page 38 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT relation to the respective Petitions and Petitioners be released immediately from the detention.

15.5 Mr. Sanjanwala, learned Senior Counsel for the petitioners has submitted in his rejoinder that it is the duty of the government counsel to satisfy that there was satisfactory material to sustain the detention order. According to him, even if no ground is raised by the detenu, it is the duty of the government to satisfy the Court regarding fulfillment of all the procedural aspect in strict manner. Regarding non­supplying of the grounds under the detention order, the learned Senior Counsel has submitted that in the impugned detention order, only facts have been narrated but no ground whatsoever is assigned to substantiate the detention order. He has also stated that in present petitions, no procedure safeguard is proved by the authority. He has also contended that the argument of learned ASG regarding the quantity and price of gold is made only with a view to prejudice the Court. He has also contended that the procedural aspects have not been observed by the detaining authority and, therefore, detention order is vitiated in this case.

15.6 Mr. Sanjanwala, learned Senior Counsel has also submitted that a per Section 3(3) of the COFEPOSA Act, the time limit is prescribed and it is constitutional right of the detenu. Learned Senior Counsel has submitted that right of representation is a fundamental right and in the present case, such right has been curtailed and it has major effect Page 39 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT on the sustainability of the detention order. He has also contended that when the detenu were in jail, it was not possible for them to get documents. He has also contended that the argument of the learned ASG is contrary to the various decisions of the Hon'ble Supreme Court. According to him, it is for the government to satisfy the Court that all these procedural safeguards have been strictly followed and no burden lies on the detenu to prove his non­involvement. He has also submitted that personal liberty is an important Constitutional right of the detenu and the fact that other co­ detenu have been released by quashing the detention order passed on the facts of the present petitions, either by the Hon'ble Supreme Court or by this Court or by the Delhi High Court, on the basis of doctrine of Parity, all these petitions require to be granted. He has repeatedly mention that there is 59 days delay in passing detention order and the same is not explained by the respondents and no submission has been made by the other side regarding the representation of the petitioners and the same are not objected to in the affidavit­in­reply. He has also contended that the grounds raised in the representation are not considered by the detaining authority or the higher authority. He has also stated that if there is no seizure of the gold, then there cannot be any confiscation of such goods, and therefore, the provisions of Sections 111 and 113 of the Customs Act is not applicable.

16. In the case of Adishwar Jain v. Union of India & Anr .

(supra), the Hon'ble Supreme Court has observed in Paras­ 5, 8 and 15 as under:

But, we fail to understand as to why despite the fact that the proposal for detention was made on 2.12.2004, the order of detention was passed after four months. We must also notice that in the meantime on 20.12.2004, the authorities of the DRI had clearly stated that transactions after 11.10.2003 were not under the scrutiny stating:

15. Delay, as is well known, at both stages has to be explained. The court is required to consider the question having regard to the overall picture. We may notice that in Sk. Serajul v. State of West Bengal [(1975) 2 SCC 78], this Court opined:

17. In the case of Narendra Purshotam Umaro v. B.B. Page 42 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Gujral and Others (supra), the three Judges Bench of the Hon'ble Supreme Court has observed in Paras­ 13, 14 and 17 as under:

This satisfaction clearly reflects the grounds contained in clauses (iii) and (iv) of S. 3(l) of the Act. The above satisfaction does not speak of smuggling of goods or abetting the smuggling of goods which are the grounds found in the Gurmukhi version of the detention order. There is, therefore, considerable force in the contention urged by the learned counsel for the appellant that on account of this variance the detenu was not able to effectively represent his case before the concerned authorities. In fact according to him the appellant was confused whether he should represent against his detention for smuggling of goods and /or abetting the smuggling of goods or for engaging, in transporting and concealing smuggled goods and / or dealing in smuggled goods. Besides the English version of the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the Page 45 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Art. 22(5) of the Constitution".

19. In the case of Ashadevi v. K. Shivraj (supra), the two Judges bench of the Hon'ble Supreme Court of India has observed in Para­6 that:

20. In the case of R. Prakash v. State of Karnataka (supra), the two Judges bench of the Hon'ble Karnataka High Court has observed in Para­6 that:

Again in Khudiram Das v. State of West Bengal , Bhagwati, J. , speaking for the Constitution Bench of the Supreme Court said:

21. In the case of Binod Singh v. District Magistrate, Dhanbad and others (supra), the two Judges bench of the Hon'ble Supreme Court of India has observed in Para­7 that:

22. Rekha v. State of Tamil Nadu through Secretary to Government and another (supra), it is observed that:­ "27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co­ accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed".

23. Yumman Ongbi Lembi Leima v. State of Manipur and others , (supra);

24. T.A. Abdul Rahman v. State of Kerala and others (supra), it is observed in Para­11 that:

25. The above decision has been followed in the case of Rajinder Arora v. Union of India and others (supra).

26. The Hon'ble Supreme Court of India, in the case of Pramodgiri Premgiri Goswami v. Union of India & Ors .

(supra), Writ Petition (Cri) No. 359 of 2019 dated 27.1.2019, Page 50 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT has observed and held as under:

27.09.2019.

After hearing Mr. Saurav Kirpal, learned Advocate for the petitioner and Mr. K.M. Nataraj, learned Additional Solicitor General for the Union of India, this petition is being disposed of on the ground that there is no proximate link between the events of March, 2013 and March, 2015 and the detention order, which is over four years later. On this ground alone, this writ petition is allowed. The detenue be released immediately."

27. In the case of Sanjaykumar Mulchanbhai Shah v. Union of India (supra), this Court has allowed the petition on the ground that the detention order stands vitiated on account of inordinate and unexplained delay in passing detention order, non­supply of vital material/ documents, more particularly bail orders of the Competent Court and release of co­detenue Shri Ramnarayan Laddha, on identical fact situation, his detention order was revoked by the Advisory Board.

28. In the case of Mehulbhai Rasikbhai Bhimani v. Union of India and others (Supra), which is based on the Page 51 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT set of facts of the present petitions, the Hon'ble High Court of Delhi, on relying upon the judgment of the Apex Court in Pramodgiri Premgiri Goswami v. Union of India & Ors (supra) released the petitioner therein on the ground that there is no proximate link between the events of January, 2014 to July, 2015 and the impugned order is passed nearly four years later.

29. In case of Jitendrakumar Dhanjibhai Rokad v. Union of India (supra), which is also on the same incident and facts of the present case, the Coordinate bench of this Court on 27.2.2020 has allowed the petition on the basis of the judgment of the Hon'ble Apex Court in the case of Pramodgiri Premgiri Goswami v. Union of India & Ors (supra) and decision of Hon'ble Delhi High Court in the case of Mehulbhai Rasikbhai Bhimani v. Union of India and others (Supra) considered the fact that there was unexplained delay in passing hte detention order.

30. In the case of Pankajkumar Chakrabarty and Others v. State of West Bengal (supra), the Hon'ble Apex Court has observed that;

31. In the case of Harish Pahwa v. State of U.P. and Ors (supra), the Hon'ble Apex Court has observed as under;

32. In case of Mohinuddin v. District Magistrate, Beed and Others (supra), the Hon'ble Supreme Court has observed as under:

33. In case of Aslam Ahmed Zahire Ahmed Shaikh v.

Union of India and others (supra), the Hon'ble Supreme Court has observed as under :

9. Thus when it is emphasised and re­ emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Art. 22(5) of the Constitution".

34. In case of Rama Bhondu Borade v. V.K. Saraf, Commissioner of Police and others (supra), there was a delay of 32 days in deciding the representation of the detenu and on that sole ground of delay, the order of detention against the concerned person was set­aside by the Court.

35. In case of Mahesh Kumar Chauhan @Banti v. Union Page 56 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT of India and others (supra), and in case of Prem Lata Sharma (Smt) v. District Magistrate, Mathura and others (supra), it was observed that if there is delay in passing order on the representation of the detenu and it is unexplained then this fact itself vitiates the detention order.

36. In case of Smt. Gracy V. State of Kerala and another (supra), the Hon'ble Supreme Court has observed as under:

37. In case of Usha Agarwal v. Union of India and others (supra), the Hon'ble Supreme Court has observed as under:­ "11. A detention under COFEPOSA Act is anticipatory and preventive. It is neither punitive nor curative. Preventive detention being one of the two exceptions to the constitutional protection under Article 22 against arrest and detention, certain procedural safeguards are provided in respect of exercise of the power to direct preventive detention. The procedural safeguards under the Constitution have been interpreted, to require every material which is relevant, having a bearing on the question as to whether a person should be detained under the Act, to be placed before the detaining authority, as the decision to detain a person is rendered by a detaining authority on his subjective satisfaction as to the existence of the grounds for such detention. The sponsoring authority should not undertake any exercise of examination and interpretation of the available material with a view to place the documents selectively before the detaining authority. It is not for the sponsoring authority to decide as to which of the relevant documents should be placed before the detaining authority, or which of the documents are likely to help, or not help, the prospective detenu. Consequently, the sponsoring authority cannot exclude any particular document from the material to be placed before the detaining authority. If the relevant facts or documents Page 58 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT which may influence the subjective satisfaction of the detaining authority on the question whether or not to make the detention order, are not placed before the detaining authority, or are not considered by the detaining authority, it may vitiate the detention order itself. It is no answer to say that the exclusion of a relevant document did not affect the decision to detain a person, in view of the other documents that were placed before the detaining authority or that the detaining authority would have come to the same conclusion even if he had considered the said document vide Attorney General of India vs. Amratlal Prajivandas , Ashadevi vs. K. Shivraj, Addl . Chief Secretary to the Govt. of Gujarat, Sita Ram Somani vs. State of Rajasthan ; Ayya vs. State of U.P. and Ahamed Nassar vs. State of Tamil Nadu "

39. In the case of Mukesh Tikaji Bora v. Union of India and Others (Supra), the Hon'ble Supreme Court has observed in Para­10 as under:­ "10. At this juncture it would be appropriate to take note of what was stated by this Court in Sadhu Roy v. The State of West Bengal . In that case final police report terminated the criminal proceedings. The question was whether in such an event order of detention can be passed. This Court inter alia observed as follows:

purposes. But if such discharge or acquittal proceeds on the footing that the charge if false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground Page 60 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT that the power under the MISA has been exercised in a malafide or colourable manner."

40. In the case of Ibrahim Nazeer v. State of Tamil Nadu and Another (supra), the Hon'ble Supreme Court has observed in Para­7 as under:

41. In the case of Gurdev Singh v. Union of India (Supra), the Hon'ble Supreme Court has observed in Para­20 as under:

42. In the case of Rajappa Neelakantan v. State of Tamil Nadu and Others (supra), the Hon'ble Supreme Court has observed in Para­7 as under:

43. In the case of Dropti Devi and Another v. Union of Page 62 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT India and others (supra), the Hon'ble Supreme Court has observed in Para­ 30, 30.8, 41, 42, 43, 44, 45, 61 and 62 as under:

30.8 Article 22 is in two parts. First part that comprises of clauses 1 and 2 is applicable to those persons arrested or detained under a law otherwise than a preventive detention law. The second part that comprises of clauses (4) to (70 applies to persons arrested or detained under the preventive detention law.

43.In the minority opinion, G.T. Nanavati, J. although differed with the view of majority on the question of law but he also noted:

44. In the case of Venkateshan S.1 , a two­Judge Bench of this Court was concerned with the judgment and order of the Karnataka High Court whereby it quashed and set aside the detention order passed by the Joint Secretary, Ministry of Finance, Department of Revenue, Government of India under Section 3(1) of COFEPOSA on the ground that what was considered to be a criminal violation of FERA has ceased to be so on the repeal of FERA which is replaced by FEMA. The Court considered the two situations of preventive detention contemplated by COFEPOSA, the objectives of FEMA and the repeal of FERA and discussed the matter thus:

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu."

In light of the above reasoning, the Court while setting aside the order of the High Court held, "11. ...in our view the order passed by the High Court holding that what was considered to be the criminal violation of FERA has ceased to be criminal offence under FEMA, the detention order cannot be continued after 1­6­ 2000, cannot be justified".

45. The Constitution recognizes preventive detention though it takes away the liberty of a person without any enquiry or trial. Preventive detention results in negation of personal liberty of an individual; it deprives an individual freedom and is not seen as Page 68 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT compatible with rule of law, yet the framers of the Constitution placed the same in Part III of the Constitution. While giving to an individual the most valuable right - personal liberty - and also providing for its safeguard, the Constitution has perceived preventive detention as a potential solution to prevent the danger to the state security. The security of the State being the legitimate goal, this Court has upheld the power of the Parliament and State Legislatures to enact laws of preventive detention. The Court has time and again given the expression 'personal liberty' its full significance and asserted how valuable, cherished, sacrosanct and important the right of liberty given to an individual in the Constitution was and yet legislative power to enact preventive detention laws has been upheld in the larger interest of state security.

44. In the case of J. Abdul Hakeem v. State of Tamil Nadu and Others (supra), the Hon'ble Supreme Court has observed in Para­8 as under:

From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which the reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenue's right to make a representation against the order of detention, is hampered by non­ supply of the particular document.

45. In the case of State of Tamil Nadu Through Secretary to Government, Public ( Law and order­F) and Another v. Nabila and Another (supra), the Hon'ble Supreme Court has observed in Para­12 as under:

46. In the case of Union of India v. Ankit Ashok Jalan (supra), the Hon'ble Supreme Court has observed in Para­ 15, 42, 44, 47, 49 and 50 as under:

"47. A Constitution Bench of this Court in the case of Rameshwar Shaw (supra) has observed and held that the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. It Page 74 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT is further observed that "therefore the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. Following the aforesaid decision of this Court, in the subsequent decision, in the case of N. Meera Rani v. Government of T.N. (1989) 4 SCC 418, in para 22, this Court observed and held as under:

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. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher court.

(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.

(4) Accordingly the non­ supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.

(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases Page 76 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court. (6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu."

50. Now applying the law laid down by this Court, referred to hereinabove, to the facts of the case on hand and considering the ground (para 7) and the various circumstances noted by the Detaining Authority, we are satisfied that the detention orders cannot be quashed on this ground. It is to be noted that the detenus have been granted bail by the Court on the very date the orders of detention were quashed by the High Court, i.e., on 2.8.2019. Therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified. Therefore, the High Court has fallen in error in quashing and setting aside the detention orders on the ground that there is a clear lapse and failure on the part of the Detaining Authority, to examine and consider the germane and relevant question relating to the imminent possibility of the detenus being granted bail, while recording its subjective satisfaction and passing the detention orders".

47. In the case of Gautam Jain v. Union of India Page 77 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT (supra), two Judges Bench of the Hon'ble Supreme Court has observed in Para­18, 19, 20, 22 as under:

19. In order to have proper analysis of the detention order, we will have to first understand the meaning that is to be attributed to the expression 'grounds' contained in Section 5A of the Act. In Vakil Singh v. State of J. & K. , following meaning was assigned to the expression 'grounds': (SCC pp 552­53, para 29) "29. We have reproduced the particulars of the grounds of detention, in full, earlier in this judgment. Read as a whole they appear to be reasonably clear and self­sufficient to bring home to the detenue the knowledge of the grounds of his detention. The abbreviation F.I.U. occurs four times in these grounds, but each time in conjunction with PAK, and twice in association with the words "Pak Officers". The collocation of words and the context in which F.I.U occurs makes its purport sufficiently intelligible.

have a factual constituent, also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details. This requirement as to the communication of all essential constituents of the grounds was complied with in the present case. The basic facts, as distinguished from factual details, were incorporated in the Page 78 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT material communicated to the detenue. He was told the name of the notorious PAK agent and courier (Mian Reham resident of Jumbian) through whom he was supplying the information about the Indian Army. He was informed about the places in Pakistan which he was visiting. He was further told that in lieu of the supply of this information he had been receiving money from Pakistan. Nothing more was required to be intimated to enable him to make an effective representation. The facts which were not disclosed were not basic facts, and their non­disclosure did not affect the petitioner's right of making a representation. As recited in the communication under cover of which the grounds of detention were served on the detenue, those factual details were withheld by the detaining authority because in its opinion, their disclosure would have been against public interest." (emphasis supplied)

20. Once again, this very aspect found duly explained in Hansmukh v. State of Gujarat in the following words: (SCC pp. 182­83, para­18) "18. ... From these decisions it is clear that while the expression "grounds" in Article 22(5) , and for that matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the 'basic facts' on which those conclusions are founded, they are different from subsidiary facts or further particulars of these basic facts.

The distinction between 'basic facts' which are essential factual constituents of the 'grounds' and their further particulars or subsidiary details is important. While the 'basic facts' being integral part of the 'grounds' must, according to Section 3(3) of COFEPOSA "be communicated Page 79 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds in compliance with the second constitutional imperative spelled out from Article 22(5) in Khudi Ram 's case, are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition. It follows, that if in a case the so­called "grounds of detention" communicated to the detenu lack the basic or primary facts on which the conclusions of fact stated therein are founded, and this deficiency is not made good and communicated to the detenu within the period specified in Sec. 3(3) the omission will be fatal to the validity of the detention. If, however, the grounds communicated are elaborate and contain all the "basic facts" but are not comprehensive enough to cover all the details or particulars of the "basic facts", such particulars, also, must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time. What is "reasonable time conforming with reasonable expedition", required for the supply of such details or further particulars, is a question of fact depending upon the facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the facts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudi Page 80 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Ram 's case."

28. The "Hand Book on Compilation of Instructions on COFEPOSA matters" is only in the nature of guidelines for the officers of the department in dealing with COFEPOSA matters. The said guidelines direct that "care to be taken in communication/service of detention order" and the grounds of detention and relied upon documents should be served as quickly as possible but within the statutory time limit of five days from the date of detention order. The said guidelines were fully complied with. Also, it is well­settled principle that any executive instruction like the guidelines cannot curtail the provisions of any statute or whittled down any provision of law.

32. It is well settled that the order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities.

45. 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 Page 83 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT judicial reviewability. By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested....."

49. Upon consideration of the provisions of the COFEPOSA Act as well as Customs Act and the decisions referred to above , the following settled legal propositions emerge:

But if such discharge or acquittal proceeds on the footing that the charge is false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground that the power has been exercised in a malafide or colourable manner.

18. Where the delay is not only adequately explained but is found to be the result of recalcitrant and refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened.

19. Whether prayed for bail would be accepted depends on the circumstances of each case and no hard­and­fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On Page 87 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT the basis of materials before it, the detaining authority come to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with.

20. It is not the law that whenever there is delay the detention order would be vitiated. The law is that the delay should not be unexplainable and that the explanation offered must appear to the Court to be reasonable and acceptable.

21. The right of the detenu to receive the document which was taken into consideration by the detaining authority while formulating the grounds of detention is well recognized; but it is not that non­supply of each and every document provides a ground for setting aside the detention order.

22. It is for the detenu to establish that the non­supply of copies of the documents has impaired the detenu's right to make an effective and purposeful representation. The demand made by the detenu for the document merely on the ground that there is a reference in the grounds of detention, cannot vitiate the otherwise legal detention order. No hard­and­fast rule can be laid down in this behalf. What is essential is that the detenu must show that the failure to supply the documents had impaired his right, however, slight or insignificant it may be.

50. The COFEPOSA Act, 1974 has been enacted for the Page 88 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT purpose of preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. As per the object of the Act, as there were violations of foreign exchange regulations and smuggling activities were having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State, to prevent such activities and for providing detention of persons concerned in any manner therewith by preventive detention, the Act has been enacted, which has come into force on 30.12.1974.

51. The importance of foreign exchange in the development of a country needs no emphasis. The conservation and augmentation of foreign exchange continued to be an important thing. All though, contravention of its provision is not regarded as a criminal offence yet it is an illegal activity jeopardizing the very economic fabric of the country. For violation of Foreign Exchange Regulation, penalty can be levied and its non­compliance results in civil imprisonment of the defaulter. But whole intent and idea of the COFEPOSA Act is to prevent violation of Foreign Exchange and Regulation of smuggling activities which have serious and deleterious effect on national economy and security.

52. One must remember that a person, who violates foreign exchange Regulation or indulge in smuggling activities, succeeds in frustrating the development and Page 89 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT growth of the country. His act or omission seriously affects national economy.

53. The object of law preventing detention is not punitive but only preventive. In case of preventive detention, no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there no criminal conviction which can only be warranted by legal evidence. At the same time, the laws of preventive detention are to be strictly construed and procedure provided must be meticulously complied with.

54. It is obvious that having regard to the nature of activity of smuggling, an inference could legitimately be drawn even from single incident of smuggling, that the person is likely to be indulged in the smuggling of gold.

55. The power of prevention detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not co­relate to prosecution even if it relies on certain facts on which prosecution is launched or may have been launched. An order of preventive detention may be made before or during prosecution. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also no barred to prosecution.

56. The order of preventive detention is based on a reasonable prognosis of future behavior of a person, based on his past, in light of his surrounding circumstances.

57. It is worthwhile to reproduce Section 3 of the COFEPOSA Act, which provides as under:

57.1 Now, in view of the provisions contained in Section 3 , the concerned authority or authorized persons has powers with respect to any person, including a foreigner, that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from ­

(i) smuggling goods, or

(ii) abetting the smuggling of goods, or

(iii) engaging in transporting or concealing or keeping smuggled goods, or

(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, after his satisfaction, make an order directing that such person be detained:

Considering the object of the Act, it needs to be observed that the word "or" is used here is for disjunctive purpose. Thus, the purpose as enumerated in clause (i) to (v) of sub­ Page 93 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT section(1) of Section 3 it itself separate one. At the same time, if against any person detention order is passed for more than 1 or 2 grounds, then that fact alone cannot be treated an illegal exercise or colourable exercise of power by the detaining authority.

58. At this stage, it is worthwhile to refer to Section 5(A) which has been added w.e.f 01.07.1975. The provisions contained therein are as under:­ Section 5(A) " Grounds of detention severable Where a person has been detained in pursuance of an order of detention under sub­section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly--

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are--

(ii) non­existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub­section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said Page 94 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT sub­section (1) after being satisfied as provided in that sub­ section with reference to the remaining ground or grounds."

58.1 At this stage, it is pertinent to note that the legislature has inserted Section 5(A) in the Statute with effect from 1.7.1975, which provides that when a person has been detained in pursuance of an order of detention under sub­section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly--

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are--

Government or officer making such order would have been satisfied as provided in sub­section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub­section (1) after being satisfied as provided in that sub­section with reference to the remaining ground or grounds.

59. Now, therefore, on conjoint reading of Section 3 with Section 5A it is crystal clear that the order of detention passed for more than two grounds and if one of the grounds is not applicable or vague or non­existent or non­relevant or not connected or any proximately connected with such person, such detention order cannot be declared as invalid detention order. If the detention order is valid for the purpose of any one of the grounds stated in clause (i) to (v) of sub­section (1) of Section 3 , then such order of detention, in the given facts and circumstances, can be treated as legal and valid.

60. The relevant provisions prescribing time limit for making reference to the Advisory Board and maximum period for deciding the same by the Advisory Board are contained in Section 8 of the COFEPOSA Act. The relevant provisions reads as under:­ SECTION 8: "Advisory Board:­ For the purposes of sub­clause (a) of clause (4), and sub­clause (c) of clause (7) of Article 22 of the Constitution,--

(a) xxx xxx xxx;

(b) save as otherwise provided in section 9 , the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub­clause

(a) of clause (4) of article 22 of the Constitution;

(c) the Advisory Board to which a reference is made under clause

(b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government, or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned."

60.1 The provisions contained in Section 8 of the Act, casts duty upon the appropriate Government that within 5 weeks from the date of detention of a person, under a detention order, make a reference in respect thereof to the Advisory Board constituted under the provisions of Article 22 of the Constitution. It is also provided in sub­clause (c) thereof that after hearing both the sides, the Advisory Board Page 97 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT has to form its opinion and to send a report to the authority within 11 weeks from the date of detention of the person concerned. Thus, provisions of Section 8 to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government, or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned.

60.2 Thus, provision of Section 8 provides for statutory obligation of the concerned appropriate Government to refer the detention order to the Advisory Board within five weeks from the date of detention of the person. At the same time, it Page 98 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT is the duty of the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned.

60.3 Considering the provisions contained in Section 8 it clearly appears that the time bound procedure has been provided therein and it is not just a procedural exercise but it is a statutory prescribed time limit which has to be adhered to by concerned authority and the Advisory Board.

61. The word "smuggling" has been defined in clause (e) of Section 2 of COFEPOSA Act, wherein it is provided that smuggling has the same meaning as in clause 39 of Section 2 of Customs Act, 1962 or its grammatical variation and cognate expression shall be construed accordingly. Thus, which activity should be considered as smuggling for the purpose of deciding the activity which may fall in the definition of smuggling, one has to refer to clause 39 of Section 2 of the Customs Act, 1962.

61.1 On perusal of the clause 39 of Section 2 of Customs Act, 1962, it reveals that the word "smuggling" has been defined in a manner that smuggling, in relation to any Page 99 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT goods means any act or omission which would render such goods liable to confiscation under Section 111 or Section

113. 61.2 Now, Section 111 of the Customs Act provides for confiscation of improperly imported goods, etc. According to the provisions contained in Section 111, the numbers of various situation have been provided wherein if those goods are brought from a place outside India is liable to be confiscated, which include prohibited or dutiable goods, etc. At the same time, Section 113 of the Customs Act, the provision is made for the export of goods which shall be liable to be confiscation. Thus, Section 111 is relating to import of improper imported goods whereas Section 113 relates to the export of such goods.

62. Considering the rival submissions and material placed on record and the legal aspects as referred to hereinabove, it is crystal clear that the Customs Authorities have initially searched Jignesh Savaliya, who has filed separate Special Civil Application being SCA No. 18858 of 2019.

63. According to the respondents, during search of Jignesh Page 100 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Savaliya on 4.6.2019 and the Petitioner Lokesh Sharma, the Customs Authorities seized 47 gold bars total weighing 24.5 Kg and having Tariff Value of Rs.7,18,18,810/­. It is alleged that on interrogation of Mr. Jignesh Savaliya, it is revealed that he has received the gold from Lokesh Sharma who had arrived Ahmedabad from Dubai and with the instruction of Customs Authorities, Mr. Jignesh Savaliya had called back Mr. Lokesh Sharma at Gate­5. It is alleged that upon interrogation of Mr. Lokesh Sharma, it was found that the gold was given to him by wife of Mr. Rutugna Trivedi at Dubai, and the same was to be handed over to Mr. Rutugna Trivedi at Ahmedabad. It also appears from the record that the statements of Mr. Jignesh Savaliya and Mr. Lokesh Sharma were recorded and the Panchnama of seizure was carried out by the authority and both these persons were arrested and were produced before the concerned Metropolitan Magistrate. It also reveals from the material on record that during the investigation, the authority found that the entire activities of smuggling of gold was done at the behest of Mr. Rutugna Trivedi and several other persons i.e. his wife, his brother­in­law, Rajubhai Goswami, Mehul Page 101 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Bhimani and other carriers were part of the said activities which had started in the year 2014­15. It is also alleged by the respondent that during the investigation it was found that about 4886.206 kg of gold valued at over Rs.1300 crores have been smuggled into India from Dubai. The role attributed to Mr. Rutugna Trivedi (Petitioner in SCA No. 22512 of 2019) is described as Mastermind and he has also carried gold in past. The role attributed to Ms. Nitaben Chunilal Parmar (Petitioner in SCA No.1713/2020) as Close associate of Mastermind and maintaining the details of payment and purchases. So far as Mr. Lokesh Sharma (Petitioner in SCA No. 23147/2019 ) is concerned, he has been attributed the role of carrier. There are other persons namely Divya Kishor Bhundia, Shri Dharmagna Arvindkumar Trivedi, Shri Bhargav Kanubhai Tanti, Mr. Birendra Singh Yadav, Shri Mukeshkumar Bhaishankarbhai Trivedi, Shri Vipul Navinchandra Joshi are treated as Carriers. The role attributed to Shri Jigensh Savaliya who has filed separate Special Civil Application, is regarded as instrumental in taking gold out of the Airport premises after collecting the same from carrier. Thus, out of Page 102 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT all of these persons, present Petitioners i.e. Rutugna Trivedi, Lokesh Sharma and Nitaben Parmar have preferred these Petitions.

64. At this stage, it is pertinent to note that allegation of authority against the financer namely Jitendra Rokad and Mehul Bhimani, both of them have been released from the detention order either by Hon'ble Delhi High court or by this Court on the ground that there is no proximate link between the activities of 2014 and 2019. It appears from the copy of the both the decisions that delay in passing the order has resulted in release of the detenu who are alleged to have been part of the entire ring of smuggling of gold from Dubai to India.

65. It is pertinent to note that, in the present petitions, so far as Mr. Lokesh Sharma is concerned, he was arrested on 4.6.2019 and detention order came to be passed on 2.8.2019, and whereas Mr. Rutugna Trivedi is concerned, the detention order was passed on 2.8.2019, but the same could not be executed against him due to his non­ coperating with the investigation and he was ultimately Page 103 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT arrested on 14.10.2019. The same position is with regard to Ms. Nitaben Chunilal Parmar. At this juncture, it is pertinent to note that both these petitioners have not appeared before the concerned authorities when they were summoned and they have filed the Petitions before this Court for protection and accordingly this Court has protected them directing the authorities that they should not be arrested without following the procedures established by law and the Petitioners have also been directed to cooperate with the investigation and they were permitted to have an advocate at the time of recording of their Statements. Even though they were under the protection order of this Court and though they were summoned thrice, they failed to remain present before the concerned authorities. It is also revealed from the material that the authority had to move this Court for direction . Thus, petitioners had to appear before the concerned authorities for interrogation upon passing such direction by this Court, Mr. Rutugna Trivedi and Ms. Nitaben Chunilal Parmar had appeared before the concerned authorities. The conduct of both the Petitioners i.e. Mr. Rutugna Trivedi and Ms. Page 104 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Nitaben Chunilal Parmar cannot be endorsed. They ought to have appeared before the concerned authority without any necessary direction of this Court. The conduct of both these petitioners is not in consonance with the conduct of law abiding persons.

66. It also reveals that the statement recorded by the authorities of the persons namely Lokesh Sharma, Nitaben Parmar etc., have retracted from their statement during the filing of bail application before the trial Court. The main contention of the Petitioners is that as the persons concerned have retracted their statement, there was no material before the authority to pass detention order on the basis of the statement recorded under Section 108 of the Customs Act.

67. Further, it appears from Para­(ix) of the grounds of detention that searches were carried out at the following residential and business premises and this exercise was started from 4.6.2019 till 1.7.2019. It also appears from the grounds that the detaining authority has relied upon the statement of the following persons:

Ahmedabad was recorded on 5.6.2019;

4. Samir Yusufbhai Sama, Supervisor with M/s.

5. Illiyajkhan A Pathan, Loader with M/s. Aroon Aviation Pvt. Ltd., SVPI Airport, Ahmedabad was recorded on 25.6.2019;

6. Tejas Kanubhai Dayatar, Ramp Service Agent, Air India Air Transport Service Ltd, Ahmedabad was recorded on 6.6.2019;

7. Shri Jigar Kapadia, Senior Security Agent, Air India Air Transport Service Ltd, (AIATSL) at SVP International Airport, Ahmedabad was recorded on 6.6.2019;

8. Jitendrakumar Dhanjibhai Rokad was recorded on 28.6.2019 and 29,6,2019;

9. Bhimani Mehul Rasikbhai was recorded on 28.6.2019 and 29.6.2019;

10. Divya Kishor Bhundia was recorded on 15.7.2019 and 16.7.2019;

11. Amit Trivedi was recorded on 11.6.2019;

12. Sajjubhai Maheshbhai Kanabar was recorded on 11.6.2019;

13. Milan Raythatha was recorded on 20.6.2019;

14. Manoj Mishra was recorded on 14.6.2019;

15. Vijesh Shankerlal Raval@Vijay was recorded on 13.6.2019 and 14.6.2019.

68. In view of the written submission of the Respondent placed on record, the detention order, etc. is reproduced hereinbelow in Tabular Form:

69. From the material on record, the role of the present Page 107 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Petitioners as alleged by the authority can be summarized in Tabular form:

70. Upon consideration of materials placed on record as well as the submission of both the sides, it is admitted fact that Pramodgiri Premgiri Goswami, who was detained under the provisions of COFEPOSA Act , has approached the Hon'ble Supreme Court and the Hon'ble Supreme Court has set­aside the detention order on the basis of the fact that there is no proximate link between events of March, 2013 and March, 2015 and the detention order, which is over four years later.

71. The Division Bench of Delhi High Court, while relying on the aforesaid decision of Supreme Court in case of Pramodgiri Premgiri Goswami v. Union of India and Ors .

(Supra) has released Mr. Mehul Bhimani, on the ground that there was no proximate link between the events of Page 108 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT January 2014 and July, 2015 and the impugned order -

which is nearly four years later. It also appears that on the basis of the aforesaid decisions of the Hon'ble Supreme Court in case of Pramodgiri Premgiri Goswami v. Union of India and Ors (Supra) and in the case of Mehulbhai Rasikbhai Bhimani v. Union of India and Ors (Supra) by Hon'ble Delhi High Court, the coordinate bench of this High Court has also passed the order of release of detenu Jitendrakumar Rokad, who is alleged to be financer and first prejudicial act was recorded in the month of January, 2014 to July, 2015 and the detention order was passed on 2.8.2019, which is after a period of four years. It was also observed therein that the case of petitioner i.e. Jitendra Rokad also stands on the same footing and thus the matter was disposed of as there was no proximity link and there was inordinate and unexplained delay in passing the detention order.

71.1 Heavy reliance has been placed on aforesaid two decisions for grant of same relief on the ground of parity by the petitioners herein.

72. Regarding application of principle of parity, it is pertinent to note that in the case of Premgiri Pramodgiri Goswami v. Union of India and Others (supra), it appears that said matter is not similar to present matter as there was seizure of 731.705 kgs. of gold between March 2013 and March 2015. Whereas in the present case, there was no past seizure except seizure of gold on 4.6.2019. Thus, there is difference in facts of both these matters.

72.1 Similarly, in the case of Jitendra Dhanjibhai Rokad v. Union of India (Supra), the allegations were that he along with one Mehul Bhimani had financed for smuggling of gold into India and that too for the period from January 2014 to July 2015, for which the order of detention was passed on 2nd August 2019. Thus, the role attributed to Jitendra Rokad is financing the activities of smuggling of gold and that too for the period from 2014 to 2015. Whereas in the present case, role alleged against the present petitioner Rutugna Trivedi is that he is the mastermind, while Nitaben Parmar is an associate and link between the carriers and the mastermind, and Mr.Lokesh Sharma is the person, who has brought gold from Dubai and who has been arrested on 4.6.2019 on the basis of the information given by the co­detenu Jignesh Savaliya. Thus, factually different roles are attributed to the petitioners as compared to the roles attributed to Jitendra Rokad and Mahul Page 110 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Bhimani in the aforesaid cases. Accordingly, decision rendered by this Court on 27.2.2020 in the case of Jitendra Rokad as well as decision of Division Bench of Honourable Delhi High Court in the case of Mehul Bhimani are not applicable in the present case as different roles are attributed to every individual and there is no question of application of principle of parity. Of course, the facts and statements, which are relied on by the detaining authority, are same, however, considering their participation in the alleged illegal activity and specific role attributed to the persons concerned, this Court is of the view that principle of parity is not applicable in the present case.

73. Regarding delay in passing detention order after detaining the detentu is concerned, it is crystal clear that when the detention order was passed on 2.8.2019, Mr.Rutugna Trivedi and Ms.Neeta Parmar, the petitioners herein were not in custody and they were evading the arrest on one pretext or the other. Whereas Mr.Lokesh Sharma was arrested on 4.6.2019 under the Customs Act . It also appears from the material placed on record that the material is voluminous and there are ten or more persons involved in the entire racket of smuggling of gold from Dubai to India. Even if the submission made on behalf of the petitioners regarding delay in passing the detention order is believed for the sake of arguments, then delay would come to 59 days only. Such delay can be assailed by the Page 111 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT petitioner of Special Civil Application No.23147 of 2019 viz. Mr.Lokesh Sharma only, as he was arrested but this ground of delay cannot be made applicable in case of other two petitioners, as they have evaded their interrogation and arrest. At the same time, though Mr.Lokesh Sharma can assail the delay of 59 days in passing the detention order, the fact remains that Shri Lokesh Sharma, petitioner of Special Civil Application No.23147 of 2019 was arrested on 4.6.2019 at the SVPI Airport, Ahmedabad, and against whom detention order was passed on 2.8.2019 and the same was served to him on 3.8.2019 and the grounds thereof were served on 6.10.2019 and it was confirmed by the authority on 25.10.2019. Considering the provisions of Section 8B and 8C of the COFEPOSA Act, which are already referred to herein above, if we consider the date of detention order being 2.8.2019 and finality of detention order by the authority on 25.10.2019, the span would come to almost two months and 23 days. According to sub­section (C) of Section 8 , the Advisory Board has to decide the matter within 11 weeks from the detention. Admittedly, in the matter though he was arrested on 4.6.2019 under the Customs Act , he has been arrested under the COFEPOSA Act by passing the impugned order dated 2.8.2019 and, therefore, the decision taken by the competent authority confirming the order of detention on 25.10.2019 is well within statutory period. Moreover, considering the material placed on record, it appears that investigation was going on Page 112 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT to collect sufficient material for moving the detaining authority for passing the order of detention, therefore, in the peculiar facts and circumstances of this case, delay cannot be considered as a factor to vitiate the detention order.

74. The detaining authority has observed in Para­xl as under:

74.1 It is revealed from the aforesaid observation by the detaining authority, it is crystal clear that Ms. Nitaben Chunilal Parmar, Mr. Jignesh Savaliya and Mr. Lokesh Sharma have retracted their statement recorded by Customs Officer under Section 108 of the Customs Act. It also appears from the detention order that with regard to present two petitions regarding the so­called retraction of statement by aforesaid persons, the detaining authority has referred to the said fact of retraction and also stated that such retraction is an after­thought.

74.2 On perusal of the grounds of detention, it appears that the detaining authority has taken into consideration retraction of statement by Shri Lokesh Sharma, Shri Jignesh Savaliya, Shri Mehul Bhimani, Shri Jitendra Rokad and Shri Bhundiya Kishor and dealt with it thoroughly and has reached to the conclusion that retraction of statements appear to be false, frivolous and afterthought with an intent to mislead/divert the investigation. At this juncture, it is pertinent to note that the detaining authority has also relied upon the statement of one Mr.Vijay Raval alias Vijay, who is working as Sales Executive in M/s.Akhandjyot Jewel LLP, which is owned by Mr.Rutugna Trivedi. As stated in his statement recorded under Section 108 of the Customs Act, 1962 on 13th June 2019, he had met Mr.Jignesh Savaliya at the function of M/s.Akhandjyot Group; that thereafter as per the instruction of his boss, Mr.Rutugna Trivedi, he had gone to meet Mr.Jignesh Savaliya many a times; that one day at the time of going home from his office situated at Manek Chawk, Mr.Rutugna Trivedi called him and gave mobile number 90999 88877 of Mr.Jignesh Savaliya and asked him to contact Mr.Jignesh Savaliya on his mobile and collect one parcel from him and hand over said parcel to Mr.Rutugna Trivedi at his office premises; that Mr.Jignesh Savaliya came and gave him one backpack; that he took the backpack and felt that it was very heavy; that he immediately came to know that it was containing gold bars;

that he has also realized that these are smuggled gold bars as M/s.Akhandjyot Group never imported gold bars officially, and Mr.Jignesh Savaliya was working at International Airport; that he took the backpack and handed it over to Mr.Rutugna Trivedi at his office; that he had done the same work two more times i.e. total three times. Now, this statement made by employee of Mr.Rutugna Trivedi­one of the petitioner herein, has not been retracted. This statement itself reveals that at the instance of Mr.Rutugna Trivedi, he met Mr.Jignesh Savaliya and Mr.Jignesh Savaliya has thrice handed over gold bars to him which he has handed over to Mr.Rutugna Trivedi.

74.3 On perusal of the panchnama dated 4.6.2019 drawn in presence of two panchas viz. Chandulal Lalubhai Pandav and Ms.Nisha Rami as well as detenu­Mr.Lokesh Sharma and Mr.Jignesh Savaliya, at Arrival Hall of Terminal­2 of SVPI Airport, Ahmedabad, Annexure­R5 in the matter of Ms.Neeta Parmar, relevant paragraph thereof records as under:­ "................. Here we are informed that customs officers have been informed by Ms.Rekha Sharma, Duty Manager, GGI, SVPIA, Ahmedabad, that one of their staff members Shri Jignesh Savaliya, Assistant Duty Officer was found behaving in a suspicious manner with a passenger in the Page 115 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT Aerobridge of Bay no.32 and he was found in possession of one bar of yellow metal and therefore he is required to be checked by the customs officers. Ms.Rekha Sharma introduced the person accompanying her as Shri Jignesh Savaliya. ................. The AIU officers offer their personal search to Mr.Jignesh Savaliya before conducting his personal search, but Mr.Jignesh Savaliya denies saying that he is having full trust on the AIU officers. The AIU officer asks Mr.Jignesh whether he wants to be checked in front of executive magistrate or Superintendent of Customs, in reply he gives his consent to be searched in front of the Superintendent of Customs."

74.4 Shri Lokesh Sharma and Shri Jignesh Savaliya and others have retracted from their statements recorded by the Customs Authority under Section 108 of the Customs Act. In view of aforesaid facts narrated in the panchnama, which fact has not been denied by the concerned petitioner, and especially the facts that panchnama has also been signed by Shri Lokesh Sharma and Shri Jignesh Savaliya, in addition to signatures of panchas and competent customs authorities, the fact narrated in the panchnama, as referred to herein above, clearly indicates that Mr.Lokesh Sharma has brought gold in India, which was to be handed over to Shri Rutugna Trivedi.

75. So far as ground of delay in considering the representation of the detenus, i.e. Mr.Rutugna Trivedi and Ms.Neeta Parmar is concerned, it appears from record that they had made representation on 16.9.2019 when they were Page 118 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT not arrested and have not made themself available for interrogation, as referred to herein above. Said representation came to be rejected by order dated 21.10.2019 by the competent authority, which is at page 179 in the paper book; it also appears that on 16.12.2019, Mr.Rutugna Trivedi and Ms.Neeta Parmar­petitioners herein have moved Advisory Board. Now, as stated by the authority that such representation came to be rejected on 1.1.2020. At this juncture, it is pertinent to note that when Mr.Rutugna Trivedi and Ms.Neeta Parmar have made representation on 16.9.2019, they did not appear before the authority even after getting protective orders from this Court. It is also pertinent to note that the authority had to move this Court for necessary direction to the petitioners Mr.Rutugna Trivedi and Ms.Neeta Parmar to appear on a specified date. On such application, this Court has directed Mr.Rutugna Trivedi as well as his associate Mr.Neeta Parmar to appear before the authority and, accordingly, they have appeared on 14.10.2019 and they were arrested. This conduct of both these petitioners reflect their intentions and attitude towards legal order. It also appears from record that after getting protective order, when they were summoned thrice by the authority, they have not appeared and only after written direction by this Court, they have appeared before concerned authority. Therefore, the ground of delay in considering representation, as raised by them is not acceptable in the peculiar facts and Page 119 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT circumstances of this case, as they themselves have tried to see that they are not arrested.

76. One of the grounds raised by the petitioner is regarding non­supply of the material documents to them. It is settled law that it is not the rule that each and every document to be supplied to the detenu, which has been referred to by the authority. The documents which are relied upon by the authority for the grounds of detention and which are material are required to be supplied to the detenu and ancillary document may not be supplied by the detaining authority. In this case, so far as the petitioner Neetaben Parmar is concerned, the documents in the form of pen drive and V­chat messages have been seized from her premises and it was well within her knowledge. So far as ground raised by other petitioners is concerned, on perusal of the material on record, it clearly appears that necessary material documents have been supplied to the petitioners and, therefore, the dispute raised by the petitioners is not acceptable.

77. It is also well settled principle of law that the detaining authority has power to issue detention order under Section 3 of the COFEPOSA Act on his subjective satisfaction. It is trite law that generally the Court cannot sit as an appellate authority in such cases over the subjective satisfaction of the detaining authority. However, judicial review of such Page 120 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT exercise of power by the detaining authority on his subjective satisfaction is available. At this juncture, it is worthwhile to refer to the decision in the case of Senthamilselvi v. State of T.N. reported in (2006) SCC 676, which is referred to in the decisions in the case of Union of India v. Dimple Happy reported in 2019 SCC On­line SC 875. In the said decision , satisfaction of the authority in coming to the conclusion that there is likelihood of the detenu being released on bail is "subjective satisfaction" based on the material and normally subjective satisfaction is not to be interfered with. In the present case also, the detaining authority has referred to every material placed before him and has also considered the retracted statements of the persons concerned and has satisfied himself to pass the detention order against the petitioners. Considering the peculiar facts and circumstances of this case, this Court is of the view that no interference is required to be exercised on the subjective satisfaction of the detaining authority in passing such detention order.

78. It is a fact that the Constitution and the Supreme Court are very zealous of holding personal liberty of an individual but at the same time, the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and device to afford protection to the society. It is also stated that when preventive detention is aimed to Page 121 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021 C/SCA/22512/2019 CAV JUDGMENT protect the safety and security of everyone, balance has to be struck between liberty of an individual and the needs of the society.

79. Considering the entire material placed on record, it is crystal clear that the detaining authority has properly applied his mind while passing individual detention order in respect of each of the petitioner. It is also crystal clear that necessary safeguards are followed by the detaining authority. All the points raised by the petitioner challenging the detention orders are devoid of merits. There is no legal infirmity in the detention orders passed against the present petitioners. This Court is of the considered view that the impugned detention orders are sustainable in the eyes of law and does not deserve to be set aside. The petitioners herein are not entitled to be released from such preventive detention.

80. In view of the aforesaid discussion, there is no merit in all the three petitions and the same deserves to be dismissed. Accordingly, all the three petitions are dismissed. Rule is discharged.

(A. P. THAKER, J) SAJ GEORGE/ RS MALEK Page 122 of 122 Downloaded on : Fri Feb 12 07:54:49 IST 2021