# MINISTRY OF FINANCE v. DIMPLE HAPPY DHAKAD

- **Citation:** [2019] 8 S.C.R. 1153
- **Court:** Supreme Court of India
- **Decided:** 2019-07-18
- **Case number:** Criminal Appeal No. 1064 of 2019
- **Bench:** R. Banumathi, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ministry-of-finance-v-dimple-happy-dhakad-34053
- **Pages:** 27

## Headnote

Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 - s.3 - Customs Act, 1962 - ss.135,
108 - Appellants-Union of India case that respondents smuggled
huge volume of gold weighing more than 3300 kgs. from UAE to
India - Respondents were arrested for the offence punishable u/
s.135 of the Customs Act - Orders of detention were passed on
17.05.2019 against the respondents u/s.3 of COFEPOSA - Detention
orders were served on respondents-detenues on 18.05.2019 however,
compilation of documents was served on detenues on 21.05.2019
and 22.05.2019 - High Court quashed the detention orders on the
ground that the relied upon documents were not served upon the
detenues together with the detention orders and there was violation
of guideline No.21 (Part A of DO's) and guideline No.9 (Part B of
Don'ts) of "Hand Book on compilation of Instructions on
COFEPOSA matters" - On appeal, held:s.3(3) of COFEPOSA
stipulates the statutory period of five days to serve the grounds of
detention and in exceptional circumstances and for reasons to be
recorded not later than fifteen days from the date of detention - In
the instant case, the detention orders and the grounds of detention
were served upon the detenues on 18.05.2019 - The relied upon
documents were served upon them between 20.05.2019 and
22.05.2019 i.e. within five days from the date of serving detention
orders i.e. 18.05.2019 - Therefore, the statutory requirement was
complied with - The High Court erred in quashing the detention
orders on the ground that the documents and materials were not
supplied pari passu the detention orders - In so far, "Hand Book on
compilation of Instructions on COFEPOSA matters" is concerned,
 [2019] 8 S.C.R. 1153
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the said guidelines were also fully complied with - Also, it is well
settled principle that any executive instructions like guidelines
cannot curtail the provisions of any statute or whittled down any
provision of law - Thus, impugned judgment of the High Court
quashing the detention orders set aside.
Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 - s.3 - Appellants-Union of India
alleged that respondents smuggled huge volumes of gold from UAE
to India - Detaining Authority-Joint Secretary (COFEPOSA) being
satisfied that the respondents had high propensity to indulge in the
prejudicial activities, passed order of detention dated 17.05.2019
u/s.3 of the COFEPOSA Act - High Court quashed the detention
orders on the ground that the detaining authority has to record
grounds of detention indicating the reasons with the satisfaction
that there is imminent possibility of detenue's release from the custody
and after release, such person is likely to continue to indulge in the
prejudicial activities - On appeal, held: The detention orders dated
17.05.2019 recorded the awareness of the detaining authority : (i)
that the detenue is in custody; (ii) that the bail application filed by
the detenues was rejected by the Court - Merely because in the
detention orders, the detaining authority has not specifically
recorded that the 'detenue is likely to be released', 'detenue's
likelihood of being released on bail' and 'if so released, he is likely
to indulge in the same prejudicial activities' , it cannot be said that
detaining authority did not apply its mind - The detaining authority
had clearly recorded the antecedent of the detenues - On the facts
and circumstances of the present case, the subjective satisfaction
of the detaining authority that the detenue is likely to be released
on bail was based on materials - On perusal of the grounds of
detention, it is clear that detenues were indulging in smuggling of
gold and disposing of the foreign origin smuggled gold through
jewellery outlets - High Court erred in quashing the detention orders
merely on the ground that the detaining authority had not expressly
recorded the finding that there was re

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1. UNION OF INDIA
2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA,
MINISTRY OF FINANCE
v.
DIMPLE HAPPY DHAKAD
(Criminal Appeal No. 1064 of 2019)
JULY 18, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 - s.3 - Customs Act, 1962 - ss.135,
108 - Appellants-Union of India case that respondents smuggled
huge volume of gold weighing more than 3300 kgs. from UAE to
India - Respondents were arrested for the offence punishable u/
s.135 of the Customs Act - Orders of detention were passed on
17.05.2019 against the respondents u/s.3 of COFEPOSA - Detention
orders were served on respondents-detenues on 18.05.2019 however,
compilation of documents was served on detenues on 21.05.2019
and 22.05.2019 - High Court quashed the detention orders on the
ground that the relied upon documents were not served upon the
detenues together with the detention orders and there was violation
of guideline No.21 (Part A of DO's) and guideline No.9 (Part B of
Don'ts) of "Hand Book on compilation of Instructions on
COFEPOSA matters" - On appeal, held:s.3(3) of COFEPOSA
stipulates the statutory period of five days to serve the grounds of
detention and in exceptional circumstances and for reasons to be
recorded not later than fifteen days from the date of detention - In
the instant case, the detention orders and the grounds of detention
were served upon the detenues on 18.05.2019 - The relied upon
documents were served upon them between 20.05.2019 and
22.05.2019 i.e. within five days from the date of serving detention
orders i.e. 18.05.2019 - Therefore, the statutory requirement was
complied with - The High Court erred in quashing the detention
orders on the ground that the documents and materials were not
supplied pari passu the detention orders - In so far, "Hand Book on
compilation of Instructions on COFEPOSA matters" is concerned,
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the said guidelines were also fully complied with - Also, it is well
settled principle that any executive instructions like guidelines
cannot curtail the provisions of any statute or whittled down any
provision of law - Thus, impugned judgment of the High Court
quashing the detention orders set aside.
Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 - s.3 - Appellants-Union of India
alleged that respondents smuggled huge volumes of gold from UAE
to India - Detaining Authority-Joint Secretary (COFEPOSA) being
satisfied that the respondents had high propensity to indulge in the
prejudicial activities, passed order of detention dated 17.05.2019
u/s.3 of the COFEPOSA Act - High Court quashed the detention
orders on the ground that the detaining authority has to record
grounds of detention indicating the reasons with the satisfaction
that there is imminent possibility of detenue's release from the custody
and after release, such person is likely to continue to indulge in the
prejudicial activities - On appeal, held: The detention orders dated
17.05.2019 recorded the awareness of the detaining authority : (i)
that the detenue is in custody; (ii) that the bail application filed by
the detenues was rejected by the Court - Merely because in the
detention orders, the detaining authority has not specifically
recorded that the 'detenue is likely to be released', 'detenue's
likelihood of being released on bail' and 'if so released, he is likely
to indulge in the same prejudicial activities' , it cannot be said that
detaining authority did not apply its mind - The detaining authority
had clearly recorded the antecedent of the detenues - On the facts
and circumstances of the present case, the subjective satisfaction
of the detaining authority that the detenue is likely to be released
on bail was based on materials - On perusal of the grounds of
detention, it is clear that detenues were indulging in smuggling of
gold and disposing of the foreign origin smuggled gold through
jewellery outlets - High Court erred in quashing the detention orders
merely on the ground that the detaining authority had not expressly
recorded the finding that there was real possibility of the detenues
being released on bail - Thus, order of the High Court not
sustainable.
Allowing the appeals of Union of India and dismissing the
appeals of detenues, the Court
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HELD : 1. Section 3(3) of the Conservation of Foreign
Exchange & Prevention of Smuggling Activities Act, 1974
(COFEPOSA) stipulates the statutory period of five days to serve
the grounds of detention and in exceptional circumstances and
for reasons to be recorded not later than fifteen days from the
date of detention. Section 3(3) of the COFEPOSA Act thus allows
a leeway of five days at least for the grounds of detention and the
documents relied upon in the grounds to be served on the
detenues. By the term "as soon as may be.....", the statute
considers five days as a reasonable time in normal circumstances
to convey the grounds of detention to the detenues. There is no
statutory obligation on the part of the detaining authority to serve
the relied upon documents on the very same day of the service
of the order of detention. In view of the time stipulated in Section
3(3) of COFEPOSA Act and the language used in Article 22(5) of
the Constitution of India "....earliest opportunity......", non-serving
of copies of documents together with detention order cannot be
a ground to quash the detention order. [Para 19] [1169-C-E]
2. In the present case, the detention orders and the grounds
of detention were served upon the detenues on 18.05.2019. The
relied upon documents were served upon them between
20.05.2019 and 22.05.2019 i.e. within five days from the date of
serving of detention orders i.e. 18.05.2019. As pointed out earlier,
Section 3(3) of COFEPOSA Act provides for the statutory period
of five days to serve the grounds of detention and the relied upon
documents. It was pointed out that the relied upon documents
were running into 2364 pages and fifteen detention orders were
passed against various detenues and therefore, the compilation
of the documents was served on the detenues on 21.05.2019. As
rightly contended by the Additional Solicitor-General, the
preparation of copies of voluminous documents was a timeconsuming process and it took time to serve the compilation of
documents upon the detenues and therefore, the orders would
not be illegal. Section 3(3) of COFEPOSA Act mandates to furnish
the documents within five days. Admittedly, the copies have been
furnished within the said period. The statutory requirement
therefore has been complied with. [Para 21] [1170-C-F]
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD
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3. In the present case, the grounds of detention and relied
upon documents were served upon the detenues within five days
from 18.05.2019 - the date of detention orders i.e. on 21.05.2019
and 22.05.2019. The term pari passu has to be read with the
statutory provision of Section 3(3) of the COFEPOSA Act which
would mean that the grounds of detention and relied upon
documents are served within five days and for reasons to be
recorded within fifteen days with explanation. Only when such
rule is vitiated, it can be said that they were not furnished
together. The High Court erred in quashing the detention orders
on the ground that the documents and the material were not
supplied pari passu the detention orders. [Para 24] [1171-C-E]
4. 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 well-settled principle that any executive
instruction like the guidelines cannot curtail the provisions of
any statute or whittled down any provision of law. [Para 26]
[1171-G-H; 1172-A]
5. 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. [Para 30] [1173-C]
6. In the light of the well settled principles, in the present
case, whether there was awareness in the mind of the detaining
authority that detenu is in custody and he had reason to believe
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that detenu is likely to be released on bail and if so released, he
would continue to indulge in prejudicial activities. In the present
case, the detention orders dated 17.05.2019 record the awareness
of the detaining authority:- (i) that the detenu is in custody; (ii)
that the bail application filed by the detenues have been rejected
by the Court. Of course, in the detention orders, the detaining
authority has not specifically recorded that the "detenu is likely to
be released". It cannot be said that the detaining authority has
not applied its mind merely on the ground that in the detention
orders, it is not expressly stated as to the "detenue's likelihood
of being released on bail" and "if so released, he is likely to
indulge in the same prejudicial activities". But the detaining
authority has clearly recorded the antecedent of the detenues
and its satisfaction that detenues have the high propensity to
commit such offences in future. [Para 35] [1175-D-G]
7. The satisfaction of the detaining authority that the detenu
may be released on bail cannot be ipse dixit of the detaining
authority. On the facts and circumstances of the present case,
the subjective satisfaction of the detaining authority that the
detenu is likely to be released on bail is based on the materials.
A reading of the grounds of detention clearly indicates that one
detenu has been indulging in smuggling gold and operating
syndicate in coordination with others and habitually committing
the same unmindful of the revenue loss and the impact on the
economy of the nation. Likewise, the detention order qua the
other detenu refers to the role played by him in receiving the
gold and disposing of the foreign origin smuggled gold through
his multiple jewellery outlets and his relatives. The High Court
erred in quashing the detention orders merely on the ground
that the detaining authority has not expressly recorded the finding
that there was real possibility of the detenues being released on
bail which is in violation of the principles laid down in Kamarunnisa
and other judgments and Guidelines No.24. The order of the High
Court quashing the detention orders on those grounds cannot
be sustained. [Para 37] [1176-B-E]
Sophia Gulam Mohd. Bham v. State of Maharashtra
and Others (1999) 6 SCC 593 : [1999] 1 Suppl. SCR
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD
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421 ; Icchu Devi Choraria v. Union of India and Others
(1980) 4 SCC 531 : [1981] 1 SCR 640 ; Mehdi
Mohamed Joudi v. State of Maharashtra and others
(1981) 2 SCC 358 ; Jasbir Singh v. Lt. Governor, Delhi
and another (1999) 4 SCC 228 : [1999] 2 SCR 706 ;
Senthamilselvi v. State of T.N. and Another (2006) 5
SCC 676 : [2006] 3 Suppl. SCR 24 ; Naresh Kumar
Goyal v. Union of India and others (2005) 8 SCC
276 : [2005] 4 Suppl. SCR 17 ; State of Maharashtra
and others v. Bhaurao Punjabrao Gawande (2008) 3
SCC 613 : [2008] 3 SCR 967 - relied on.
Virendra Singh v. State of Maharashtra (1981) 4 SCC
562 ; Ana Carelina D'souza (Smt.) v. Union of India
and others AIR 1981 SC 1620 - held inapplicable.
Kamarunnisa v. Union of India (1991) 1 SCC 128 :
[1990] 1 Suppl. SCR 457 ; Rekha v. State of Tamil Nadu
through Secretary to Government and Another (2011)
5 SCC 244 : [2011] 4 SCR 740 ; Kamleshkumar
Ishwardas Patel v. Union of India and others (1995) 4
SCC 51 : [1995] 3 SCR 279 ; Vijay Kumar v. Union of
India and others (1988) 2 SCC 57 ; Kamarunnisa v.
Union of India and Another (1991) 1 SCC 128 : [1990]
1 Suppl. SCR 457 ; Union of India v. Paul Manickam
and Another (2003) 8 SCC 342 : [2003] 4 Suppl. SCR
618 ; Huidrom Konungjao Singh v. State of Manipur
and Others (2012) 7 SCC 181 : [2012] 5 SCR 1173 ;
Dharmendra Suganchand Chelawat v. Union of India
(1990) 1 SCC 746 : [1990] 1 SCR 303 ; Veeramani v.
State of T.N. (1994) 2 SCC 337 : [1994] 1 SCR 616
- referred to.
Case Law Reference
[1990] 1 Suppl. SCR 457
referred to
Para 8
[2011] 4 SCR 740
referred to
Para 10
(1981) 4 SCC 562
held inapplicable
Para 16
AIR 1981 SC 1620
held inapplicable
Para 16
[1995] 3 SCR 279
referred to
Para 16
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[1999] 1 Suppl. SCR 421
relied on
Para 20
[1981] 1 SCR 640
relied on
Para 20
[1999] 2 SCR 706
relied on
Para 20
(1981) 2 SCC 358
relied on
Para 22
(1988) 2 SCC 57
referred to
Para 29
[1990] 1 Suppl. SCR 457
referred to
Para 31
[2003] 4 Suppl. SCR 618
referred to
Para 32
[2012] 5 SCR 1173
referred to
Para 33
[1990] 1 SCR 303
referred to
Para 33
[1994] 1 SCR 616
referred to
Para 34
[2006] 3 Suppl. SCR 24
relied on
Para 36
[2005] 4 Suppl. SCR 17
relied on
Para 41
[2008] 3 SCR 967
relied on
Para 42
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1064 of 2019.
From the Judgment and Order dated 25.06.2019 of the High Court
of Judicature at Bombay in Criminal Writ Petition No. 2844 of 2019.
With
Criminal Appeal Nos. 1066, 1067, 1065 of 2019.
K. M. Natraj, ASG, Mukul Rohatgi, Vikram Chaudhri, Sr. Advs.,
Ms. Binu Tamta, Rajat Nair, Sharat Nambiar, Ms. Aruna Pai, Kanu
Agrawal, Rajeev Ranjan, Shantnu Sharma, B. Krishna Prasad, Saurabh
Kirpal, Sanjay Agarwal, Ashish Batra, Wattan Sharma, Sarthak Sachdev,
Harshit Sethi, Gautam Awasthi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. These appeals arise out of the judgment dated 25.06.2019 passed
by the High Court of Judicature at Bombay in W.P. (Crl.) Nos.2843 and
2844 of 2019 in and by which the High Court has quashed the detention
orders dated 17.05.2019 passed against the detenues. The appellantsUnion of India in appeals arising out of SLP(Crl.) Nos.5459 and 5460 of
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD
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2019 have challenged the impugned judgment quashing the detention
orders. While quashing the detention orders, the High Court has stayed
the operation of its own order for a period of one week to enable the
appellants to approach the Supreme Court. Being aggrieved by the stay,
the detenues-respondents have preferred appeals arising out of SLP(Crl.)
Nos.5396 and 5408 of 2019 before this Court. All the appeals shall stand
disposed of by this common judgment.
3. The facts giving rise to these appeals are that pursuant to an
investigation by the office of Directorate of Revenue Intelligence in the
matter of smuggling of foreign origin gold by a syndicate of persons
from UAE to India. On 28.03.2019 search and interception of two vehicles
i.e. a Honda Activa Scooter and a Honda City car was held. It was
noticed that there were two persons Abdul Ahad Zarodarwala and Shaikh
Abdul Ahad, employee of Zarodarwala. Search of the vehicles resulted
in recovery of 75 kgs of gold in the form of five circular discs valued at
Rs.24.5 crores. Follow-up searches were conducted in the offices and
residential premises of the connected persons resulted in further recovery
of 110 kgs of gold and currency amounting to Rs.1.81 crores. Shoeb
Zarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad were
summoned and their statements were recorded and they are alleged to
have made statement regarding receiving of smuggled gold from
respondent detenu-Nisar Pallathukadavil Aliyar.
4. Facts in SLP (Crl.) No. 5408 of 2018: Case of the appellants
is that the respondent-detenu Nisar Pallathukadavil Aliyar is a full-time
organised smuggler of large quantities of gold and is the mastermind of
the smuggling syndicate and has been smuggling gold into India since
2016. It is stated that two companies, viz. M/s. Al Ramz Metal Scrap
Trading and M/s. Blue Sea Metal FZE were floated and registered by
the appellant in the name of one Kalpesh Nanda for exporting metal
scrap to India which is alleged to cover cargo to smuggle gold. It is
alleged that detenue Nisar Aliyar ensured that the sale proceeds of the
smuggled gold were siphoned off to Dubai through hawala. It is alleged
that Nisar Aliyar created a wide network of people to look after the
operations at every stage and was smuggling gold into India since 2016
and is alleged to have smuggled more than 3300 kgs of gold having
approximate value of Rs.1000 crores and is alleged to be a mastermind
of the smuggling syndicate. Detenu Nisar Aliyar was arrested on
31.03.2019 for commission of offences punishable under Section 135 of
the Customs Act, 1962 and his statement was recorded.
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5. Facts in SLP (Crl.) No. 5396 of 2019: Detenu-Happy
Arvindkumar Dhakad is a Director of Bullion Trading Firm and is a
jeweller. As per the appellants, investigations revealed that the husband
of the detenu Happy Dhakad was directly dealt with Shoeb Zarodarwala
and Jignesh Solanki who are his relatives by buying gold from Nisar
Aliyar. Detenu Happy Dhakad is alleged to have abetted Nisar Aliyar in
his illegal activities of receiving and concealing smuggled gold and
disposing it off through his jewellery outlets and is said to have played a
vital role. It is alleged that through multiple jewellery outlets owned by
him and his relatives, detenu-Happy Dhakad disposed of the foreign
origin smuggled gold easily. Follow up searches were conducted at various
offices and residential premises of persons found connected with
smuggling of gold. A total quantity of 110 kgs of gold was recovered
from these premises. Thirty-one pieces of gold carrying a total weight
of 20.4 kgs and 11.5 kgs of foreign marked gold bars totally valued at
Rs.10.21 crores, Rs. 28.53 lakhs cash and unaccounted cash of Rs.28.53
lakhs and Rs.44.50 lakhs were seized respectively from the office and
residence of detenu Happy Dhakad and he did not have any documents
for his possession of gold. In his statement recorded on 29.03.2019,
detenu Happy Dhakad is alleged to have accepted that 20.4 kgs of gold
recovered from his premises was from the smuggled gold supplied to
him by appellant Nisar Aliyar and the other 11.5 kgs of foreign marked
gold was procured from other sources. Detenu Happy Dhakad was
arrested on 29.03.2019 for the offence punishable under Section 135 of
the Customs Act, 1962 and was remanded to judicial custody.
6. The Detaining Authority-Joint Secretary (COFEPOSA), on
being satisfied that the detenues have high propensity to indulge in the
prejudicial activities, with a view to prevent them from smuggling and
concealing smuggled gold in future, passed the orders of detention dated
17.05.2019 under Section 3 of the Conservation of Foreign Exchange &
Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The
detention orders and the grounds of detention were served on the
detenues on 18.05.2019. The copies of the relied upon documents were
served on the detenues on 21.05.2019 and 22.05.2019.
7. The detention orders dated 17.05.2019 was assailed by the
detenues by filing writ petitions before the High Court. The High Court
vide interim order dated 04.06.2019 directed the appellant to consider
the writ petitions as a representation of the detenues. Accordingly, the
representation was considered and the same was rejected by the Joint
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD
[R. BANUMATHI, J.]
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Secretary (COFEPOSA) who did not find any justification in modification
of the detention orders.
8. By the impugned order dated 25.06.2019, the High Court
quashed the detention orders by holding that there was no application of
mind by the Detaining Authority in passing the detention orders. The
High Court held that as per the principles laid down in Kamarunnisa v.
Union of India (1991) 1 SCC 128, there was no application of mind
indicating the satisfaction of the detaining authority that there was
imminent possibility of detenues being released on bail. The High Court
also held that though the detention orders and grounds of detention were
served on the detenues on 18.05.2019, the detenues were not served
with the copies of relied upon documents and material particulars along
with the orders of detention and grounds of detention and there was
violation of Article 22(5) of the Constitution of India and violation of
Guideline No.21 of "Hand Book on Compilation of Instructions on
COFEPOSA matters". The High Court did not accept the contention
of the Department that the preparation of copies of documents and bulk
of records did not enable the respondents to serve the relied upon
documents simultaneously with the orders of detention upon the
respondents. Holding that the preventive detention was in violation of
Articles 21 and 22(5) of the Constitution of India and the Guidelines, the
High Court quashed the detention orders dated 17.05.2019. As pointed
out earlier, the High Court, however, stayed the operation of its own
judgment for a period of one week which we have extended.
9. Mr. K.M. Natraj, learned Additional Solicitor-General appearing
for the appellant-Union of India has submitted that the orders of detention
and the grounds were served on the detenues on 18.05.2019 and since
the documents were voluminous containing 2364 pages, the copies of
which were served on the detenues on 21.05.2019 and 22.05.2019
respectively is well within the time period stipulated in Section 3(3) of
the COFEPOSA Act. While so, it was submitted that the High Court
was not right in quashing the detention orders on the ground that the
relied upon documents were not served upon the detenues together with
the detention orders and that there was violation of Guideline No. 21
(Part A of Do's) and Guideline No. 9 (Part B of Don'ts) which is only a
guideline to the officers. The learned Additional Solicitor-General further
submitted that "Hand Book on compilation of instructions on
COFEPOSA matters from July 2001 to February, 2007" is only in
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the nature of guidelines for the officers of the department in dealing with
COFEPOSA matters and the said guidelines itself direct that care to be
taken in communication/service of the detention orders, grounds of
detention and relied upon documents and the statutory period of service
laid down in the COFEPOSA Act. The learned Additional SolicitorGeneral further submitted that based on the materials placed before the
detaining authority, the detaining authority satisfied itself as to the
likelihood of the detenues being released on bail and while so, the High
Court erred in quashing the detention orders on the ground that in the
detention orders "there was no finding that there was real possibility
of their being released on bail by the Court". The learned Additional
Solicitor General urged that the present case involves huge volume of
gold systematically smuggled into the country in the last three years and
more than 3300 kgs of gold has been brought during the period from July
2018 to March 2019 and the detaining authority after considering that
the detenues have propensity to indulge in the offence passed the
detention orders and such subjective satisfaction of the detaining authority
cannot be lightly interfered with by the Court.
10. Mr. Mukul Rohatgi, learned senior counsel appearing for the
detenues relied upon number of judgments and contended that the grounds
of detention and relied upon documents are to be served on the detenues
pari passu and in the instant case, serving of the relied upon documents
and grounds of detention piecemeal deprives the detenues from making
effective representation. Taking us through the grounds of detention, the
learned senior counsel submitted that the detaining authority has recorded
its awareness only as to the custody of the detenues and the dismissal of
the bail application and the satisfaction of the detaining authority as to
the likelihood of the detenues being released on bail is significantly absent
and the absence of such satisfaction vitiates the detention orders. Reliance
was placed upon Kamarunnisa and other judgments. The learned senior
counsel further submitted that it was not possible for the detaining authority
to pass all fifteen detention orders in one day after perusal of 2364 pages
of documents describing role of each individual which clearly shows
non-application of mind by the detaining authority. Placing reliance upon
Rekha v. State of Tamil Nadu through Secretary to Government and
Another (2011) 5 SCC 244, it was submitted that in cases of preventive
detention orders, procedural requirements are the safeguards and noncompliance of the procedural requirements vitiates the detention orders.
It was submitted that upon consideration, the High Court has rightly
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quashed the detention orders that the detention order is an infraction of
Article 22(5) of the Constitution of India and non-compliance of the
Guidelines of "Hand Book on compilation of instructions on
COFEPOSA matters" and the impugned order warrants no interference.
11. We have carefully considered the rival submissions and perused
the impugned order and other materials on record. We have also carefully
gone through the various judgments relied upon by both sides. The
following points arise for consideration in these appeals:-
(i) Whether the orders of detention were vitiated on the ground
that relied upon documents were not served along with
the orders of detention and grounds of detention? Whether
there was sufficient compliance of the provisions of Article
22(5) of the Constitution of India and Section 3(3) of the
COFEPOSA Act?
(ii) Whether the High Court was right in quashing the detention
orders merely on the ground that the detaining authority
has not expressly satisfied itself about the imminent
possibility of the detenues being released on bail?
12. The present case relates to alleged smuggling of huge volume
of gold of more than 3300 kgs of gold camouflaging it with brass metal
scrap. Detenue Nisar Aliyar is stated to be the mastermind and kingpin
of the syndicate who along with others smuggled gold from UAE to
India. Detenu Happy Dhakad abetted smuggling by receiving smuggled
gold from Nisar Aliyar and his group and disposing them off through
jewellery outlets run by him and his relatives. The respondents were
arrested for the offence punishable under Section 135 of the Customs
Act on 29.03.2019 and their statements were recorded under Section
108 of the Customs Act. The orders of detention were issued on
17.05.2019. The detention orders along with grounds of detention were
served on the detenues on 18.05.2019. Since the documents were running
into 2364 pages and there were fifteen detention orders passed against
various detenues, the compilation of documents was served on detenues
on 21.05.2019 and 22.05.2019 respectively. Section 3(3) of COFEPOSA
Act states that "the detenue should be communicated with the order
of detention and the grounds as soon as may be after detaining him
but ordinarily not later than five days......" According to the appellants,
in the present case, the orders of detention and the grounds were served
on the detenues on 18.05.2019. However, since the documents were
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voluminous running about 2364 pages, the same was served on the
detenues on 21.05.2019 and 22.05.2019 respectively which, of course,
was within the time period stipulated under Section 3(3) of the Act.
13. In the detention orders dated 17.05.2019, though it was
expressly mentioned that the documents mentioned in the list relied upon
by the detaining authority are served upon the detenues along with the
detention orders, the relied upon documents were served upon the
detenues between 20.05.2019 and 22.05.2019. The High Court quashed
the detention orders dated 17.05.2019 on the ground that on 18.05.2019,
the detention orders and the grounds of detention were served on the
detenues; but the relied upon documents and other material particulars
were not served upon the detenues together with the grounds of detention.
After extracting the relevant portion of the detention orders, the High
Court held that though it was stated that the relied upon documents
were served upon the detenues along with the detention orders, actually
they were not served on the detenues together with the detention orders
and the grounds of detention and while so, the appellants cannot have
recourse to Section 3(3) of the COFEPOSA Act, 1974. The relevant
portion of the detention orders where the detaining authority has stated
that the relied upon documents are being served upon the detenues along
with the grounds of detention reads as under:-
"9. While passing the Detention Order under the provisions of
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, I have relied upon the documents
mentioned in the enclosed list, which are also being served to you
along with the Grounds of Detention.
10. You i.e. Shri Happy Arvindkumar Dhakad have the right to
represent against your detention to the Detaining Authority, to the
Central Government as well as to the Advisory Board. If you
wish to avail this right, you should send your representation through
the Jail Authorities where you are detained, in the manner indicated
below..." [underlining added]
14. Guideline No.21 of Do's of "Do's and Don'ts in handling
COFEPOSA matters", stipulates that the grounds of detention and relied
upon documents must be invariably served together on the detenu
(including the copies translated into the language known to and understood
by the detenu, wherever necessary) and these should be served as quickly
as possible but within the statutory time limit of five days from the date
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of his detention. In Part-B dealing with Don'ts of "Do's and Don'ts in
handling COFEPOSA matters", Guideline No.9 lays down that the
grounds of detention and relied upon documents should not be given on
different dates. For quashing it on the ground of non-serving of the
grounds of detention and relied upon documents along with the detention
orders, the High Court held that there was violation of Guideline No.21
in Part-A dealing with Do's of "Do's and Don'ts in handling
COFEPOSA matters", and Guideline No.9 in Part-B dealing with the
Don'ts of "Do's and Don'ts in handling COFEPOSA matters".
Guideline No.21 and Guideline No.9 dealing with "Do's and Don'ts in
handling COFEPOSA matters", read as under:-
"Do's and Don'ts in handling COFEPOSA matters
A.
Do's
.........
21. The Grounds of detention and the relied upon documents
be invariably served together to the detenu (including the
copies translated into the language known to and understood
by the detenu, wherever necessary) and these should be
served as quickly as possible but within the statutory time
limit of five days from the date of his detention.
B.
Don'ts
......
9. Grounds of detention and relied upon documents should
not be given on different dates."
15. Contention of the learned senior counsel for the respondents
is that though the detention orders served upon the detenues states that
the relied upon documents mentioned in the list are also being served
upon the detenues along with the grounds of detention, the relied upon
documents were not actually served upon the detenues and such nonapplication of mind of the detaining authority vitiates the detention orders
apart from depriving the detenu from making effective representation.
The learned senior counsel further submitted that there is clear breach
of the guidelines containing Do's and Don'ts and the respondents were
deprived of his right of personal liberty without following the procedure
established by law. The learned senior counsel submitted that the High
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Court relied upon its own judgments of co-ordinate Benches in Criminal
Writ Petition Nos.2/1996, 4/1996, 824/1995 and 690/1996 and rightly
held that the relied upon documents were not served together with the
orders of detention and grounds of detention on 18.05.2019 and hence,
there is no question of the appellants taking recourse to Section 3(3) of
the COFEPOSA Act.
16. In support of his contention that the detention orders are liable
to be quashed on the ground that the documents and materials forming
basis of the detention orders had not been supplied, the learned senior
counsel for the respondents placed reliance upon Virendra Singh v.
State of Maharashtra (1981) 4 SCC 562 and Ana Carelina D'souza
(Smt.) v. Union of India and others AIR 1981 SC 1620 and number
of other judgments. It was submitted that the High Court rightly relied
upon Kamleshkumar Ishwardas Patel v. Union of India and others
(1995) 4 SCC 51 wherein the Supreme Court had observed that while
discharging the constitutional obligation to enforce the fundamental rights
of the people, more particularly, the right to personal liberty, the gravity
of the allegations cannot influence the process and that to enforce the
fundamental rights of the people, more particularly, the right to personal
liberty, certain minimum procedural safeguards are required to be
"zealously watched and enforced by the court".
17. In Virendra Singh, the order of detention was passed on
09.10.1980 and the grounds of detention and other documents and
materials were supplied to the detenu on 01.11.1980 when he was
arrested; but without the documents and the materials which were later
served on 05.11.1980. The Supreme Court quashed the detention order
and held as under:-
"1. .....Admittedly, the order of detention was passed on October
9, 1980 and the grounds were supplied to the detenu on November
1, 1980 when he was arrested but without the documents and
materials which were supplied on November 5, 1980. The detenu
made a representation on November 13, 1980 which was disposed
of on December 13, 1980. In this case as the documents and the
materials forming the basis of the order of detention had not been
supplied to the detenu along with the order of detention when the
same was served on him, the order is rendered void as held by
this Court in Icchu Devi Choraria v. Union of India (1980) 4
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SCC 531 and in Shalini Soni v. Union of India (1980) 4 SCC
544. Moreover, the order of detention suffers from another
infirmity, namely, that the representation made by the detenu was
disposed of by the detaining authority more than a month after the
representation was sent to it. No reasonable explanation for this
delay has been given which violates the constitutional safeguards
enshrined under Article 22(5) and makes the continued detention
of the detenu void. For these reasons, therefore, we allow this
petition and direct the detenu to be released forthwith."
By a reading of the above that as there was a long gap between
the order of detention and the arrest and also inordinate delay in
considering and disposal of the representation, the Supreme Court
quashed the detention order.
18. In yet another decision relied upon by the learned counsel for
the respondents i.e. Ana Carelina D'souza, facts are not clear. The
detention order was quashed mainly on the ground of non-supply of the
relied upon documents along with the grounds of detention. It is not
known whether the statutory time limit of five days was complied with
or not. It has been held by the Supreme Court in several cases that
mere service of the grounds of detention is not in compliance of the
mandatory provision of Article 22(5) of the Constitution of India unless
the grounds are accompanied with the documents which are referred to
are relied on the grounds of detention. In the decisions relied upon by
the learned senior counsel for the respondents, the detention order was
quashed in the facts and circumstances of those cases viz. (i) that the
relied upon documents were served beyond the statutory mandate of
five days; and (ii) that there was inordinate delay in disposal of the
representation. The decisions relied upon by the learned senior counsel
for the respondents being in the factual context of respective cases are
not applicable to the present case.
19. Section 3(3) of the Conservation of Foreign Exchange &
Prevention of Smuggling Activities Act, 1974 (COFEPOSA) states that
the detenu should be communicated with the order of detention and the
grounds 'as soon as may be' after detaining him 'but ordinarily not later
than five days and in exceptional cases and for reasons to be recorded
in writing not later than fifteen days from the date of detention. Subsection (3) of Section 3 of the COFEPOSA Act, 1974 reads as under:-
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"3. Power to make orders detaining certain persons.
......
(1) + (2)........
(3) For the purposes of clause (5) of Article 22 of the Constitution,
the communication to a person detained in pursuance of a detention
order of the grounds on which the order has been made shall be
made as soon as may be after the detention, but ordinarily not
later than five days, and in exceptional circumstances and for
reasons to be recorded in writing, not later than fifteen days, from
the date of detention." [underlining added]
Section 3(3) of the COFEPOSA Act stipulates the statutory period
of five days to serve the grounds of detention and in exceptional
circumstances and for reasons to be recorded not later than fifteen days
from the date of detention. Section 3(3) of the COFEPOSA Act thus
allows a leeway of five days at least for the grounds of detention and the
documents relied upon in the grounds to be served on the detenues. By
the term "as soon as may be.....", the statute considers five days as a
reasonable time in normal circumstances to convey the grounds of
detention to the detenues. There is no statutory obligation on the part of
the detaining authority to serve the relied upon documents on the very
same day of the service of the order of detention. In view of the time
stipulated in Section 3(3) of COFEPOSA Act and the language used in
Article 22(5) of the Constitution of India "....earliest opportunity......",
non-serving of copies of documents together with detention order cannot
be a ground to quash the detention order.
20. In the case of Sophia Gulam Mohd. Bham v. State of
Maharashtra and Others (1999) 6 SCC 593 , the Supreme Court
has held that "the use of the words "as soon as may be....." indicate a
positive action on the part of the detaining authority in supplying the
grounds of detention and that there should not be any delay in supplying
the grounds on which the order of detention was based".