Full Judgment Text
2025 INSC 327
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO._______________ OF 2025
(@Special Leave Petition (Crl.) No.16893 of 2024)
JOYI KITTY JOSEPH …Appellant
VERSUS
UNION OF INDIA & ORS. …Respondents
J U D G M E N T
Leave granted.
2. The wife of the detenu; detained under
the provisions of the Conservation of Foreign
Exchange and Prevention of Smuggling
Signature Not Verified
Digitally signed by
Nirmala Negi
Date: 2025.03.06
15:24:45 IST
Reason:
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1
Activities Act, 1974 , is before us challenging
the order of detention. There is no challenge to
the procedural aspects which have been
scrupulously complied with. The High Court,
before whom the detention order and its
subsequent confirmation have been assailed
rejected the contentions; which decision is
impugned in the above appeal. The detention
order, impugned before the High Court, is
produced as Annexure P-1.
3. We have heard Mr. Farook M.
Razack, learned Senior Counsel for appellant
and Mr. Vikramjit Banerjee, learned Additional
Solicitor General for India for the respondents.
4. Essentially, three grounds are raised
before us to secure the release of the detenu
1
“the COFEPOSA Act”
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who is behind bars for almost a year, the arrest
being on 05.03.2024. That there is clear non-
application of mind since the allegations are
raised under clauses (i) to (iv) of Section 3(1) of
the COFEPOSA Act, in an omnibus manner,
clearly revealing the bias of the detaining officer.
The attempt was to somehow obtain preventive
detention of the person who was arrested on the
basis of the offences alleged; in which crime he
was granted bail by the jurisdictional Court,
imposing very stringent conditions. Then, the
Department had moved an application for
cancellation of bail which was never pursued
and importantly, the said application was not
placed before the detaining authority. The
detaining authority, thus, did not have the
opportunity to consider the grounds raised for
cancellation of bail and to consider as to why
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preventive detention should be made when such
an application for cancellation of bail was
pending before the competent Court. A
cancellation would have resulted in the detenu
being taken back in custody, in which event
there was no cause for shackling the appellant
on a preventive basis. When a judicious
consideration was possible, as to whether the
appellant should be taken back in custody, an
order for preventive detention ought to have
been avoided, which would also be in violation
of the salutary provisions under Article 14, 19
and 21 of the Constitution of India, 1951. The
last ground urged is that the impugned order
refers to a conviction in a case involving
narcotics which conviction is challenged before
the Hon’ble Supreme Court by way of an appeal
in which the detenu is also released on bail. The
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crime itself was registered way back and the
incident has no live link with the order of
detention. It is also urged that the proviso to
Section 3(1) of the COFEPOSA Act specifically
prohibited a detention under that provision if an
order of detention can be made under Section 3
of the Narcotic Drugs and Psychotropic
2
Substances Act, 1985 .
5. To press home the contention of
complete non-application of mind, the learned
Senior Counsel for the appellant relied on a
number of decisions. Clauses (i) to (iv) of Section
3(1) in seriatim refers to, smuggling goods (i),
abetting the smuggling of goods (ii), engaging in
transporting or concealing or keeping smuggled
goods (iii) and dealing in smuggled goods
2
“NDPS Act”
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otherwise than by engaging in transporting or
concealing or keeping smuggled goods (iv). To
consider whether the allegations against the
detenu falls within all these, necessarily, we
have to go through the detention order detailing
the allegations raised against the detenu.
6. There was intelligence gathered that
the detenu along with his wife (appellant-herein)
were operating a syndicate involved in
smuggling foreign original gold into India and
selling it in the market. There was also specific
intelligence regarding the transmission of 10 kg.
of smuggled gold through named persons for
selling in the local Mumbai market at a specified
location; a shop room, wherein a raid was
conducted on 05.03.2024. Huge cache of gold
bars, coins and cut pieces along with a huge
quantity of Indian currency was recovered from
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the premises. On enquiry with the persons
present in the shop, it was disclosed that the
contraband was brought in by Mohammad
Rafique Noor Mohammad Razvi @ Aarif and
Mahendra Jain and kept therein for sale in the
local market on a cash basis without any invoice
or bill. Mohammad Rafique Noor Mohammad
Razvi @ Aarif and Mahendra Jain on being
questioned admitted to the gold having been
brought and kept at the shop on instructions
from the detenu and they were stated to be
acting as agents to sell the gold in the market
on a commission basis. There were no
documents produced pertaining to the cash and
gold, to substantiate the legal sourcing of such
goods and the same was seized by the officers of
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3
the Directorate of Revenue Intelligence who
had conducted the raid.
7. The DRI officers then, based on the
statements under Section 108 of the Customs
4
Act, 1962 , raided the residential premises of
the detenu. The attempt made by the inmates to
prevent entry was thwarted by the officers and
the premises were found to be in complete
disarray clearly indicating attempts to conceal
contraband and other evidence regarding the
smuggling activities carried on by the residents
therein. The mobile phones and contraband,
thrown away, were recovered from the office
bearers of the Society of the residential complex
and further contraband was also recovered from
the residential premises of the detenu. The
3
“DRI”
4
“Customs Act”
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statements under Section 108 of the Customs
Act reveal that continued smuggling activities
involving gold bars and cut pieces of foreign
origin was carried on by a syndicate headed by
the detenu, in which Mohammad Rafique Noor
Mohammad Razvi @ Aarif and Mahendra Jain
acted as commission agents, the actual sale
having been carried out through Ummed Singh
and Mahipal Vyas, employees of the agents. All
of them confirmed their involvement in the
smuggling activities carried on by the detenu,
who was the kingpin of the operation.
Mohammad Rafique Noor Mohammad Razvi @
Aarif confessed to his involvement of smuggling
gold bars acting as an agent for the detenu at a
commission of Rs. 2000/- per kilogram.
According to him, the detenu used to send 2 to
3 kilograms of smuggled gold, with foreign
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markings, every day for sale, upon which, the
agent used to contact Mahendra Jain at his
shop; which was the subject matter of the raid
from which premises, the sale was effected. On
the basis of the statement recorded of the
aforesaid persons which was confirmed by the
statement of the detenu under Section 108 of
the Customs Act, the modus operandi of
smuggling gold from Dubai to India through
carriers, receipt of the same at Mumbai Airport
at a pre-determined location by the detenu and
his wife, the subsequent delivery to Mohammad
Rafique Noor Mohammad Razvi @ Aarif and
sale through him on a commission basis has
been detailed in the order of detention. We are
convinced that the above facts reveal that the
detenu has not only been involved in smuggling
of goods, but also has abetted such smuggling
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of goods through carriers, engaged in receiving
the same, dispatching it to middle-men for
keeping it concealed in their premises and
effecting sale through them; who were paid a
commission. This definitely brings in the
ingredients of each of the clauses under (i) to (iv)
1
of Section 3(1) .
8. Narendra Purshotam Umrao v. B.B.
5
Gujral , held that the different grounds
mentioned in Section 3(1) are all regarding
smuggling of goods and the word smuggling
includes abetting smuggling activities. Therein
also, the contention of non-application of mind
was held to be not sustainable since there is
always, on facts, overlapping of smuggling and
its abetting. As was noticed above, in the
5
(1979) 2 SCC 637
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present case 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.
9. We, further, notice from the
detention order, which has been extracted in the
judgment of the High Court, from paragraph 3
to 9 where the satisfaction has been entered by
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the detaining authority. The detenu was found
to be a habitual offender and a key person of the
well-organized syndicate involved in smuggling
and disposal of foreign gold brought illegally
into India, which activity was habitually carried
out through his associates without declaration
before the customs authorities and without
payment of applicable duties. The smuggling of
gold was for the purpose of illegal profiteering
putting the national economy into danger which
activity was sought to be curbed by the
detention order. The detenu was found to have
indulged in the activities amounting to
smuggling under both the Customs Act and the
COFEPOSA Act. The detenu was also found to
have an innate propensity to devise ways and
means to smuggle foreign gold into India which
was done through a well-organized smuggling
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network and an established mechanism
operated through trusted associates. The
habitual indulgence in such fraudulent
activities by way of smuggling goods, abetting of
smuggling of goods, engaging in transporting
and concealing or keeping the smuggled goods
and dealing in such smuggled goods at the cost
of government revenue and national security
was found to be with a clear motive of illegal
enrichment with no concern to the general
economy and national security interests. The
detenu was found to have played a vital role in
smuggling foreign original gold through the
organized network and executing disposal of
such smuggled goods with meticulous planning
and deliberate design, regardless of the
consequences to the society at large. The
detaining authority not only has detailed the
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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.
10. The further contention taken by the
appellant is of there being no live link insofar as
the reference to the case under the NDPS Act;
the subject matter of which cannot also be
proceeded with under the COFEPOSA Act, due
to the prohibition in the proviso to Section 3(1).
True, there is a reference to the crime under the
NDPS Act as one in which the appellant was
involved. However, the same was only in relation
to the specific ground taken by the detaining
authority that after release of the detenu from
jail in Baroda, in October, 2013; pursuant to the
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bail granted by this Court, the detenu had
officially changed his name from 'Afzal Haroon
Batatawala' to 'Sameer Haroon Marchant', in
which name he was arrested in a case of gold
smuggling in the year 2017. We do not find any
reference made to the allegations in the
narcotics case in the operative portion of the
detention order. It 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. Be that as it may, we
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
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in the said crime a ground taken for detention
under the COFEPOSA Act. As is noticed above,
reference to the NDPS case is only to emphasise
the propensity of the detenu to involve in such
illegal activities by even changing the name
officially, to supress his real identity. We do not
find any reason to hold the detention to be
illegal on the ground of a mere reference to the
NDPS case; which we reiterate is only to
emphasise the change in name resorted to by
the detenu after being released on bail.
11. The decision in Khaja Bilal Ahmed v.
6
State of Telangana deprecated the order of the
detaining authority which merely referred to a
pending criminal case, without any clear
indication and casual connection to hold it as
6
(2020) 13 SCC 632
Page 17 of 30
the basis of an order of detention. We have
already found that, here, the involvement in a
case under the NDPS Act, was not raised as a
ground, anywhere in the detention order. The
incidents which led to the impugned detention
order commenced on a raid in the premises of
the detenu’s associates followed up with
successive raids at the residence of the detenu
and other associates, from all of which locations
there was recovery of huge cache of contraband;
commending us to uphold the subjective
satisfaction entered into by the detaining
authority.
12. The last contention raised is with
respect to the application for cancellation of bail
having not been placed before the detaining
authority. The impugned judgment has
specifically considered the said ground and
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finds that the application for cancellation of bail
was filed on 06.05.2024 and the detention order
was passed on 09.05.2024. There was no
possibility of placing the said document before
the detaining authority and the same would not
amount to non-supply of a vital document,
since the cancellation of bail cannot be
considered as an alternative to a detention
order. We would, rather, emphasise on the
undisputed fact that both the parties are in
agreement that the cancellation of bail has not
been pursued by the department. The grounds
for cancellation of bail could not have swayed
the detaining authority this way or that way;
since it was not competent on the authority to
speculate as to whether the jurisdictional Court
would permit such cancellation. In fact, if the
application for cancellation of bail was allowed
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then probably the situation would have been
different. We are also of the opinion that the
non-supply of the application for cancellation of
bail would not be a compelling circumstance to
find the order itself to be vitiated. We find
absolutely no reason to interfere with the
preventive detention order on the grounds
stated herein above.
13. However, as the sentinel on the qui
vive we cannot, but, notice a compelling ground,
which was not argued before us. Admittedly,
after the successive raids and the arrest of the
accused, including the detenu, the accused
were remanded to judicial custody. The original
confessional statements were retracted when
they were produced before the Additional Chief
th
Metropolitan Magistrate at the 19 Court,
Esplanade, Mumbai. The detenu was initially
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placed in judicial custody till 19.03.2024 and an
extension was subsequently granted till
01.04.2024 by the jurisdictional Magistrate who
further extended the judicial custody till
15.04.2024. The bail application dated
01.04.2024 before the jurisdictional Magistrate
was replied to by the DRI, Mumbai on
15.04.2024.
14. The jurisdictional Magistrate
released the detenu on bail vide order dated
16.04.2024 on certain conditions. The order of
the Magistrate is extracted in the impugned
judgment. The contentions raised by the DRI
regarding the all-pervasive role of the detenu
and his propensity to indulge in such smuggling
activities, detrimental to the interest of the
nation was considered in juxtaposition with the
contention raised by the accused; on the basis
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of the investigation carried out thus far. The
specific ground raised by the prosecution of
apprehension of involvement in similar type of
smuggling activity was reckoned by the
jurisdictional Magistrate while granting bail and
imposing conditions to prevent the detenu from
engaging in such smuggling activities. The
various conditions are revealed from the order
extracted and have been referred to in
paragraph-(xxii) of the detention order.
However, nothing is stated by the detaining
authority as to why the conditions are not
sufficient to prevent the detenu from engaging
in further activities of smuggling; which was the
specific ground on which the conditions were
imposed while granting bail.
15. We are not examining the conditions
imposed by the Magistrate since it was for the
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detaining authority to look into it and enter into
a subjective satisfaction as to whether the same
was sufficient to avoid a preventive detention or
otherwise, insufficient to restrain him from
further involvement in similar smuggling
activities. As has been held in Rameshwar Lal
7
Patwari v. State of Bihar :
“The formation of the opinion
about detention rests with the
Government or the officer authorised.
Their satisfaction is all that the law
speaks of and the courts are not
constituted an Appellate Authority.
Thus the sufficiency of the grounds
cannot be agitated before the court.
However, the detention of a person
without a trial, merely on the
subjective satisfaction of an authority
however high, is a serious matter. It
must require the closest scrutiny of the
material on which the decision is
formed, leaving no room for errors or
at least avoidable errors. The very
reason that the courts do not consider
the reasonableness of the opinion
formed or the sufficiency of the
7
AIR 1968 SC 1303
Page 23 of 30
material on which it is based,
indicates the need for the greatest
circumspection on the part of those
who wield this power over others.’
[underlining by us for emphasis]
16. If there is a consideration, then the
reasonableness of the consideration could not
have been scrutinised by us in judicial review,
since we are not sitting in appeal and the
provision for preventive detention provide for
such a subjective satisfaction to be left
untouched by the Courts. However, when there
is no such consideration then we have to
interfere.
17. Ameena Begum v. State of Telangana
8
and others held that the observations in Rekha
9
v. State of T.N. ; that preventive detention is
impermissible when the ordinary law of the land
8
(2023) 9 SCC 587
9
(2011) 5 SCC 244
Page 24 of 30
is sufficient to deal with the situation was per
incuriam to the Constitution Bench decision in
10
Haradhan Saha v. State of W.B. , in the limited
judicial review available to constitutional courts
in preventive detention matters. The Courts
would be incapable of interference by
substituting their own reasoning to upset the
subjective satisfaction arrived at by the
detaining authority, especially since preventive
detention law is not punitive but preventive and
precautionary.
8
18. In Ameena Begum , this Court was
concerned with the true distinction between a
threat to “law and order” and acts “prejudicial
to public order”, which was not to be determined
merely by the nature or quality of the act
10
(1975) 3 SCC 198
Page 25 of 30
complained of, but was held to lie, in the proper
degree and extent of its impact on the society. It
was held that there could be instances where
“disturbance of public order” would not be
attracted but still, would fall within the scope of
maintenance of “law and order”. It was held that
:- “preventive detention laws—an exceptional
measure reserved for tackling emergent
situations—ought not to have been invoked in
this case as a tool for enforcement of “law and
order” (sic para 47), especially when the existing
legal framework to maintain law and order is
sufficient to address the offences under
consideration.
19. Likewise, in the present case, we are
not concerned as to whether the conditions
imposed by the Magistrate would have taken
care of the apprehension expressed by the
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detaining authority; of the detenu indulging in
further smuggling activities. We are more
concerned with the aspect that the detaining
authority did not consider the efficacy of the
conditions and enter any satisfaction, however
subjective it is, as to the conditions not being
sufficient to restrain the detenu from indulging
in such activities.
8
20. Ameena Begum , noticed with
11
approval Vijay Narain Singh v. State of Bihar
and extracted paragraph 32 from the same:
“ It is well settled that the law of
preventive detention is a hard law and
therefore it should be strictly
construed. Care should be taken that
the liberty of a person is not
jeopardised unless his case falls
squarely within not be used merely to
clip the wings of an accused who is
involved in a criminal prosecution. It is
not intended for the purpose of
keeping a man under detention when
11
(1984) 3 SCC 14
Page 27 of 30
under ordinary criminal law it may not
be possible to resist the issue of orders
of bail, unless the material available is
such as would satisfy the
requirements of the legal provisions
authorising such detention. When a
person is enlarged on bail by a
competent criminal court, great
caution should be exercised in
scrutinising the validity of an order of
preventive detention which is based
on the very same charge which is to be
tried by the criminal court.”
[ underlining by us for emphasis ]
21. The 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
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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, we interfere
with the detention order only on the ground of
the detaining authority having not looked into
the conditions imposed by the Magistrate while
granting bail for the very same offence; the
allegations 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.
22. We, hence, allow the appeal and set
aside the order of detention. The detenu shall be
released forthwith, if still in custody.
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23. Pending application(s), if any, shall
stand disposed of.
……………………..……………, J.
[SUDHANSHU DHULIA]
……………………..……………, J.
[K. VINOD CHANDRAN]
NEW DELHI;
March 06, 2025.
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