Supreme Court Clarifies Service of Documents in COFEPOSA Detentions: Union of India vs. Dimple Happy Dhakad (2019)

Date of the Judgment: 18 July 2019
Citation: (2019) INSC 713
Judges: R. Banumathi, J., A.S. Bopanna, J.
Can the government detain a person to prevent future crimes, even if that person is already in jail? The Supreme Court of India recently addressed this question, focusing on the procedural requirements for preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The core issue revolved around whether the detaining authority must serve all documents supporting the detention order at the same time as the order itself. This judgment clarifies the timeline for serving these documents and the extent to which the detaining authority must demonstrate the likelihood of the detainee’s release and continued illegal activity. The judgment was delivered by a two-judge bench of R. Banumathi, J., and A.S. Bopanna, J., with the opinion authored by R. Banumathi, J.

Case Background

The case originated from an investigation by the Directorate of Revenue Intelligence into a gold smuggling operation from the UAE to India. On March 28, 2019, authorities intercepted two vehicles, discovering 75 kgs of gold. Subsequent searches of related offices and residences led to the recovery of an additional 110 kgs of gold and Rs. 1.81 crores in currency. Statements from individuals involved indicated that the smuggled gold was received from Nisar Pallathukadavil Aliyar, who is alleged to be the mastermind of the smuggling operation. It was also alleged that Happy Arvindkumar Dhakad, a jeweller, abetted Nisar Aliyar by receiving and selling the smuggled gold through his jewellery outlets.

Nisar Aliyar was arrested on March 31, 2019, and Happy Dhakad on March 29, 2019, under Section 135 of the Customs Act, 1962. The Detaining Authority, the Joint Secretary (COFEPOSA), issued detention orders on May 17, 2019, under Section 3 of COFEPOSA, to prevent them from further smuggling activities. The detention orders and grounds were served on May 18, 2019. However, the copies of the relied upon documents were served on May 21 and 22, 2019. The detenues challenged the detention orders in the High Court of Judicature at Bombay.

Timeline:

Course of Proceedings

The detenues challenged the detention orders by filing writ petitions before the High Court of Judicature at Bombay. The High Court, through an interim order, directed the government to consider the petitions as representations from the detenues. The Joint Secretary (COFEPOSA) rejected the representations, upholding the detention orders. Subsequently, the High Court quashed the detention orders, citing a lack of application of mind by the Detaining Authority, particularly regarding the possibility of the detenues being released on bail, and the non-simultaneous service of relied upon documents. The High Court stayed its order for one week to allow the Union of India to appeal to the Supreme Court. Both the Union of India and the detenues appealed to the Supreme Court.

Legal Framework

The case primarily concerns the interpretation of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), and Article 22(5) of the Constitution of India. Section 3 of COFEPOSA empowers the government to detain individuals to prevent them from engaging in smuggling activities. Section 3(3) of the COFEPOSA Act specifies that:

“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.”

Article 22(5) of the Constitution of India guarantees the right of a detained person to be informed of the grounds for detention and to be given the earliest opportunity to make a representation against the order.

Arguments

Appellants (Union of India):

• Argued that the detention orders and grounds were served on May 18, 2019, and the copies of the voluminous documents (2364 pages) were served on May 21 and 22, 2019, which is within the stipulated time under Section 3(3) of the COFEPOSA Act.
• Contended that the High Court erred in quashing the detention orders because the relied upon documents were not served simultaneously with the detention orders.
• Stated that the “Hand Book on Compilation of Instructions on COFEPOSA matters” is only a guideline and does not have the force of law.
• Submitted that the Detaining Authority was satisfied with the likelihood of the detenues being released on bail, and the High Court should not interfere with the subjective satisfaction of the Detaining Authority.
• Asserted that the case involves a large-scale gold smuggling operation and the detenues have a high propensity to continue such activities.

Respondents (Detenues):

• Argued that the grounds of detention and relied upon documents must be served simultaneously to allow the detenues to make an effective representation.
• Contended that the Detaining Authority did not demonstrate satisfaction regarding the likelihood of the detenues being released on bail.
• Claimed that the Detaining Authority did not apply its mind, as it was not possible to pass fifteen detention orders in one day after perusing 2364 pages of documents.
• Relied on previous judgments to argue that procedural requirements in preventive detention cases must be strictly followed, and any non-compliance would invalidate the detention orders.
• Submitted that the High Court rightly quashed the detention orders due to violations of Article 22(5) of the Constitution and the guidelines in the “Hand Book on compilation of instructions on COFEPOSA matters”.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. 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?
2. 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?

Treatment of the Issue by the Court:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• Kamarunnisa v. Union of India [CITATION]: The principles laid down in this case were applied to determine the validity of the detention order against persons in custody.
• Virendra Singh v. State of Maharashtra [CITATION]: Distinguished on facts, as that case involved a long gap between the detention order and the supply of documents.
• Ana Carelina D’souza (Smt.) v. Union of India [CITATION]: Distinguished on facts, as the facts of that case were unclear, and it did not clarify the statutory time limit of five days.
• Kamleshkumar Ishwardas Patel v. Union of India [CITATION]: The principle regarding procedural safeguards was acknowledged, but the court found that the safeguards were met in this case.
• Sophia Gulam Mohd. Bham v. State of Maharashtra [CITATION]: The interpretation of “as soon as may be” was used to define the time limit for serving grounds of detention.
• Icchu Devi Choraria v. Union of India [CITATION]: The time limit for communicating grounds of detention was clarified.
• Jasbir Singh v. Lt. Governor, Delhi [CITATION]: The method for computing the five-day period was clarified, excluding the date of the detention order.
• Mehdi Mohamed Joudi v. State of Maharashtra [CITATION]: The principle of pari passu supply was interpreted in the context of Section 3(3) of the COFEPOSA Act.
• Vijay Kumar v. Union of India [CITATION]: This case was relied upon to support the view that the subjective satisfaction of the detaining authority should not be interfered with by the court.
• Union of India v. Paul Manickam [CITATION]: The principles for detaining a person already in jail were reiterated.
• Huidrom Konungjao Singh v. State of Manipur [CITATION]: This case was used to reiterate the principle that a person in custody can be detained if their release may lead to prejudicial activities.
• Veeramani v. State of T.N. [CITATION]: The conditions for valid detention orders for persons in custody were reiterated.
• Senthamilselvi v. State of T.N. [CITATION]: The principle that the satisfaction of the detaining authority is subjective and not to be interfered with lightly was upheld.
• Naresh Kumar Goyal v. Union of India [CITATION]: The preventive nature of detention was emphasized.
• State of Maharashtra v. Bhaurao Punjabrao Gawande [CITATION]: The balance between individual liberty and the security of the state was discussed.

What weighed in the mind of the Court?

The Supreme Court emphasized the need to balance individual liberty with the security and economic interests of the nation. The Court noted that the detenues were involved in large-scale gold smuggling, which has a significant impact on the economy. The Court also highlighted that the detaining authority had considered the detenues’ propensity to continue such activities. The Court held that the subjective satisfaction of the detaining authority, based on the materials available, should not be lightly interfered with by the court. The procedural safeguards were followed by the detaining authority. The court also considered the statutory time limit of five days under Section 3(3) of the COFEPOSA Act, and the fact that the documents were served within that time.

Logical Reasoning:

The Court considered alternative interpretations of the law, particularly regarding the simultaneous service of documents. However, it rejected this interpretation, emphasizing the statutory time limit of five days provided in Section 3(3) of the COFEPOSA Act. The Court also considered the argument that the detaining authority did not apply its mind because it did not explicitly record its satisfaction regarding the possibility of the detenues’ release on bail. However, the Court rejected this, noting that the detaining authority had recorded its awareness of the detenues’ custody and their propensity to engage in smuggling activities.

The final decision was reached by considering the statutory provisions, the facts of the case, and the need to balance individual liberty with the security and economic interests of the nation. The Court found that the procedural safeguards had been met and that the subjective satisfaction of the detaining authority was valid.

The Court’s decision is summarized as follows:

• The detention orders were not vitiated by the non-simultaneous service of documents, as they were served within the five-day statutory period.
• The High Court erred in quashing the detention orders based on the lack of explicit satisfaction regarding the possibility of the detenues’ release on bail.
• The subjective satisfaction of the detaining authority was valid and should not be lightly interfered with.

“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.”

“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.”

“When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society.”

Key Takeaways

• The Supreme Court clarified that the relied upon documents need not be served simultaneously with the detention order and grounds of detention, as long as they are served within the five-day statutory period stipulated in Section 3(3) of the COFEPOSA Act.
• The subjective satisfaction of the detaining authority, based on the materials available, should not be lightly interfered with by the courts.
• The Court emphasized the need to balance individual liberty with the security and economic interests of the nation.
• The guidelines in the “Hand Book on Compilation of Instructions on COFEPOSA matters” are not statutory and do not have the force of law.

Directions

The Supreme Court set aside the judgment of the High Court and allowed the appeals of the Union of India, thereby upholding the detention orders. The appeals of the detenues were dismissed.

Development of Law

The ratio decidendi of this case is that the relied upon documents need not be served simultaneously with the detention order and grounds of detention, as long as they are served within the five-day statutory period as per Section 3(3) of the COFEPOSA Act. This clarifies the procedural requirements for preventive detention under COFEPOSA and provides guidance for detaining authorities. This judgment also reiterates the importance of balancing individual liberty with the security and economic interests of the nation, as well as the subjective satisfaction of the detaining authority.

Conclusion

In conclusion, the Supreme Court’s judgment in Union of India vs. Dimple Happy Dhakad clarifies the procedural requirements for preventive detention under the COFEPOSA Act. The Court held that the detaining authority is not obligated to serve the relied upon documents simultaneously with the detention order and grounds of detention, as long as they are served within the five-day statutory period. The Court also emphasized the importance of the subjective satisfaction of the detaining authority and the need to balance individual liberty with the security and economic interests of the nation. The judgment sets aside the High Court’s decision and upholds the detention orders.