Preventive detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The appellant, the wife of the detenu, challenged the detention order against her husband, who was accused of being a kingpin in an organized gold smuggling syndicate. The court examined three main arguments from the appellant: non-application of mind by the detaining authority, the lack of a “live link” to a previous narcotics case referenced in the order, and the detaining authority’s failure to consider the pending bail cancellation application against the detenu. While rejecting most of the appellant’s contentions, the Supreme Court ultimately set aside the detention order because the detaining authority failed to assess whether the conditions of bail previously granted by a Magistrate were sufficient to prevent the detenu from continuing his alleged smuggling activities.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Section 3(1) – Preventive Detention – Quashed – It has been clearly substantiated that the detenu was at the helm of affairs of the smuggling of gold, a continuing activity, wherein he had engaged carriers to carry out the act of smuggling, from whom the smuggled goods were received either by him or his wife, alone or together and then transmitted to the agents who would sell them in the market on a cash basis without invoices or bills; the proceeds of which minus the commission is received by the detenu.
There is a complete chain of activity revealed which commences with the detenu and ends with him, bringing in the ingredients of all the four provisions – The detaining authority not only has detailed the various aspects of smuggling carried out by the detenu but has also brought out the ingredients of each of clauses (i) to (iv) of Section 3(1) for the purpose of ordering preventive detention, validated further by the huge seizures made from different locations – Cannot be disputed that there is no live link with the arrest in the narcotics case, in which, by the year 2013, he had spent nine years of the sentence awarded.
The subject matter of a narcotics case cannot also be a ground for preventive detention under Section 3(1) of the COFEPOSA Act – Do not find either of these points, vitiating the impugned order, since, neither is the subject matter of offence under the NDPS Act referred to in the detaining order nor is the involvement in the said crime a ground taken for detention under the COFEPOSA Act – Non-supply of the application for cancellation of bail would not be a compelling circumstance to find the order itself to be vitiated – Find absolutely no reason to interfere with the preventive detention order on the grounds stated herein above – However, as the sentinel on the qui vive cannot, but, notice a compelling ground, which was not argued – Criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling activities, through a network set up, revealed on successive raids carried on at various locations, on specific information received, leading to recovery of huge cache of contraband –
When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered.
The detention order being silent on that aspect, the detention order liable to be interfered only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations in which also have led to the preventive detention, assailed herein, to enter a satisfaction as to whether those conditions are sufficient or not to restrain the detenu from indulging in further like activities of smuggling – Order of detention liable to be set aside – The detenu shall be released forthwith, if still in custody.
(Para 8 to 13, 21 and 22)
Joyi Kitty Joseph V. Union Of India
Supreme Court: 2025 INSC 327: (DoJ 06-03-2025)
