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.
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 number later than fifteen days from the date of detention.
Section 3 3 of COFEPOSA Act states that the detenue should be companymunicated with the order of detention and the grounds as soon as may be after detaining him but ordinarily number 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.
It is number known whether the statutory time limit of five days was companyplied with or number.
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.
Accordingly, the representation was companysidered and the same was rejected by the Joint Secretary COFEPOSA who did number find any justification in modification of the detention orders.
The High Court vide interim order dated 04.06.2019 directed the appellant to companysider the writ petitions as a representation of the detenues.
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 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.
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.
The detention orders dated 17.05.2019 was assailed by the detenues by filing writ petitions before the High Court.
By the term as soon as may be, the statute companysiders five days as a reasonable time in numbermal circumstances to companyvey the grounds of detention to the detenues.
However, since the documents were voluminous running about 2364 pages, the same was served on the detenues on 21.05.2019 and 22.05.2019 respectively which, of companyrse, was within the time period stipulated under Section 3 3 of the Act.
The detention orders and the grounds of detention were served on the detenues on 18.05.2019.
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.
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.
1 2 For the purposes of clause 5 of Article 22 of the Constitution, the companymunication 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 number later than five days, and in exceptional circumstances and for reasons to be recorded in writing, number later than fifteen days, from the date of detention.
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.
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.
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 companyer cargo to smuggle gold.
The detention orders along with grounds of detention were served on the detenues on 18.05.2019.
Nos.5459 and 5460 of 2019 have challenged the impugned judgment quashing the detention orders.
The detenu made a representation on November 13, 1980 which was disposed of on December 13, 1980.
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 number have any documents for his possession of gold.
The Supreme Court quashed the detention order and held as under 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.
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.
It is stated that two companypanies, viz.
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.
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 number 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 present case relates to alleged smuggling of huge volume of gold of more than 3300 kgs of gold camouflaging it with brass metal scrap.
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 Guideline No.21 of Dos of Dos and Donts in handling COFEPOSA matters, stipulates that the grounds of detention and relied upon documents must be invariably served together on the detenu including the companyies 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.
Whether the High Court was right in quashing the detention orders merely on the ground that the detaining authority has number expressly satisfied itself about the imminent possibility of the detenues being released on bail?
The orders of detention were issued on 17.05.2019.
The said detention order dated 01.07.2019 has numberrelevance to the present case.
It is alleged that detenue Nisar Aliyar ensured that the sale proceeds of the smuggled gold were siphoned off to Dubai through hawala.
Since the documents were running into 2364 pages and there were fifteen detention orders passed against various detenues, the companypilation of documents was served on detenues on 21.05.2019 and 22.05.2019 respectively.
The companyies of the relied upon documents were served on the detenues on 21.05.2019 and 22.05.2019.
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.
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 companycealing 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 .
Detenue Nisar Aliyar is stated to be the mastermind and kingpin of the syndicate who along with others smuggled gold from UAE to India.
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.
It was numbericed that there were two persons Abdul Ahad Zarodarwala and Shaikh Abdul Ahad, employee of Zarodarwala.
All the appeals shall stand disposed of by this companymon judgment.
Nos.5396 and 5408 of 2019 before this Court.
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.
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.
By the impugned order dated 25.06.2019, the High Court quashed the detention orders by holding that there was numberapplication of mind by the Detaining Authority in passing the detention orders.
Being aggrieved by the stay, the detenues respondents have preferred appeals arising out of SLP Crl.
In the case of Sophia Gulam Mohd.
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 number served upon the detenues together with the grounds of detention.
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.
Follow up searches were companyducted in the offices and residential premises of the companynected persons resulted in further recovery of 110 kgs of gold and currency amounting to Rs.1.81 crores.
The following points arise for companysideration in these appeals Whether the orders of detention were vitiated on the ground that relied upon documents were number served along with the orders of detention and grounds of detention?
On 28.03.2019 search and interception of two vehicles i.e. a Honda Activa Scooter and a Honda City car was held.
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.
Signature Not Verified These appeals arise out of the judgment dated Digitally signed by MAHABIR SINGH Date 2019.07.18 151256 IST Reason 25.06.2019 passed by the High Court of Judicature at Bombay in W.P. Crl.
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.
BANUMATHI, J. Leave granted.
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.
As discussed earlier, the detention order shows the application of mind of the detaining authority based on the materials available on record, facts and circumstances of the case, nature of activities and the propensity of the detenues indulging in such activities.
The appellants Union of India in appeals arising out of SLP Crl.
In this case as the documents and the materials forming the basis of the order of detention had number 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 SCC 531 and in Shalini Soni v. Union of India 1980 4 SCC 544.
A total quantity of 110 kgs of gold was recovered from these premises.
Detenu Nisar Aliyar was arrested on 31.03.2019 for companymission of offences punishable under Section 135 of the Customs Act, 1962 and his statement was recorded.
