Delhi High Court
Joyi Kitty Joseph vs Union Of India & Ors. on 29 October, 2024
Author: Amit Sharma
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 8th October, 2024
Date of Decision: 29th October, 2024
+ W.P.(CRL) 1901/2024
JOYI KITTY JOSEPH .....Petitioner
Through: Mr. Priyadarshi Manish with Mrs.
Anjali Jha Manish, Dr. Sujay
Kantawala, Ms. Vanshika Rana and
Ms. Shambhavi Singh, Advocates
(M-7719691844).
versus
UNION OF INDIA & ORS. .....Respondents
Through: Dr. B Ramaswamy, CGSC
for R-1 & 2 (M-9999605344).
Mr. Aditya Singla, Sr. Standing
Counsel for DRI with Mr. Ritwik
Saha, Mr. Sahil Parashar, Mr. Sarthak
Mittal, Mr. Umang Krishna Mishra,
Mr. Vaibhav Chechi, Advocates for
R-3 (M-9958846148).
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition filed by the Petitioner – Joyi Kitty Jospeh under
Article 226 of the Constitution of India read with Section 482 of the Code of
Criminal Procedure, 1973 (in short ‘Cr.P.C.’) seeks the following prayers:-
“(a) Issue a writ, order or direction especially in the nature of
habeas corpus directing the forthwith release of the Detenue from
custody as his detention is illegal;
(b) Issue a writ, order or direction in the nature of certiorari to
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 1 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
quash the detention order bearing F.No. PD-12001/13/2024-
COFEPOSA dated 09.05.2024 passed under Section 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (COFEPOSA Act, 1974), by the Respondent
No. 2; and
(c) Pass such other order or further order or orders as this
Hon’ble Court may deem fit and proper under the circumstances
of the case.”
2. The present petition seeks quashing of the preventive Detention Order
bearing F.No. PD-12001/13/2024- COFEPOSA dated 09th May, 2024 passed
under Section 3(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (in short ‘COFEPOSA Act’), by the Joint
Secretary (COFEPOSA) i.e., Respondent No.2, thereby ordering the detention
of Mr. Sameer Haroon Marchant alias Afzal Haroon Batatawala (in short
‘Detenu’) who is the husband of the Petitioner.
3. The impugned Detention Order for the sake of completeness is being
reproduced as under:-
“To,
(i) Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala
S/o Shri Haroon Batatawala,
Rio Flat No. 1401, B wing, Hollywood Kanakia,
Yari Road, Versova Mumbai-400061.
(ii) Rio A-612 Juhu Taj CHS, lOth Road NSJVPD Juhu Scheme,
Near HSBC Bank, Vile Parle, Mumbai, Juhu-400049.
Subject: Grounds on which Detention Order No. PD-
12001113/2024 COFEPOSA dated the 9th May, 2024 has been
issued against Shri Sameer Haroon Marchant alias Afzal Haroon
Batatawala i.e., you, S/o Shri Haroon Batatawala, under the
provisions of the COFEPOSA Act, 1974.
i) Specific inteligence was gathered that a syndicate led by Shri
Sameer Haroon Marchant alias Afzal Haroon Batatawala ie you,
Signature Not Verified
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By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
along with your wife Ms Joyi Kitty Joseph alias Kitty is involved
in smuggling foreign origin gold into India and selling it in the
grey market. Further, the intelligence indicated that on
05.03.2024, Shri Sameer Haroon Marchant alias Afzal Haroon
Batatawala ie you, would be sending 10 kg of smuggled gold
through Shri Mohammad Rafique Noor Mohammad Razvi alias
Aarif and Shri Mahendra Jain for sale in the local Mumbai market
at Shop No. 19, 1st floor, building no. 51/53, Vitthal Wadi Lane,
Kalbadevi, Mumbai-400002. Additionally, it was learnt that Shri
Sameer Haroon Marchant i.e you, made arrangements for the sale
proceeds from the smuggled gold to be delivered to you or sent to
third parties as per your instructions via hawala channels.
Therefore, a search was conducted at the said premises on
05.03.2024.
ii)During the search at the premises mentioned above, Shri
Ummed Singh and Shri Mahipal Vyas, both caretakers of the shop
mentioned above, along with other employees and Shri
Mohammad Rafique Noor Mohammad Razvi alias Aarif and Shri
Mahendra Jain were found present in the shop. During the search
proceedings, gold in various forms viz. Gold Bars, Coins, cut
pieces, etc. was found and recovered from the counter table,
whereas from the cupboard placed on the side wall, a huge
quantity of Indian Currency notes bundles of various
denominations viz. 500, 200, 100 and 50 were found. Cash
amounting to Rs. 1,80,15,600/-was found at the premises
mentioned above. Thereafter, the officers enquired with Shri
Ummed Singh and Shri Mahipal Vyas about the source of the gold
bars/coins/cut pieces and the source of Indian currency. On being
enquired, they informed that 05 gold bars with foreign markings
(weighing 4999.97 grams) and 15 cut pieces of gold bars with
foreign markings (weighing 2711.41 grams) totally weighing
7711.38 grams had been brought to the shop premises for sale by
Shri Mohammad Rafique Razvi alias Arif and Shri Mahendra Jain
on 05.03.2024, and one gold bar with foreign marking weighing
1000 grams was brought for sale by Shri Shailesh of M/s Pravin
Jewellers on 05.03.2024. It was further informed that the rest of
the gold (6 gold bars weighing 409.97 grams with Indian
markings, 757.540 grams gold which includes 3 crude gold kadas
and assorted cut pieces of gold bars without markings, 5 gold bars
with foreign markings weighing 500.07 grams and one gold coin
and 05 gold bars of different sizes with foreign markings weighing
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 3 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
327.69 grams) weighing 1995.270 grams belong to their employer
i.e. Mahi Bhai and Brijesh alias Birju and were meant for trading
purposes. Further, in respect of the cash amount of Rs.
1,80,15,600/-, it was informed by Shri Ummed Singh and Shri
Mahipal Vyas that the said cash is the sale proceeds of the
smuggled gold already sold by them in the local market on a cash
basis without any invoices/bills.
iii) Thereafter, at the request of DRI officers, the government
approved gold assayer assayed all the gold recovered from the
said premises and issued 03 valuation certificates dated
05.03.2024, certifying the gold as 24 Karat gold; (1) total
weighing 9539.14 Kgs valued at Rs. 6,36,26,064/-, (2) total weight
409.970 gms valued at 27,34,500/-, (3) total weighing 757.54
grams value at 50,52,792/-. Thereafter, the said gold weighing
10706.65 grams valued at 7,14,13,356/- along with cash
amounting to Rs. 1,80,15,600/- was recovered vide panchanama
proceedings dated 05.03.2024. On being asked about the source
of gold, Shri Mohammad Rafique Razvi alias Aarif and Shri
Mahendra Jain during the panchanama dated 05.03.2024, stated
that the said gold was smuggled gold, brought by them to sell at
Shop No. 19, Ist floor, building no. 51/53, Vitthal Wadi Lane,
Kalbadevi, Mumbai-400002 at the behest of Shri Sameer Haroon
Marchant alias Afzal Haroon Batatawala i.e you residing at Flat
No. 1401-B Kanakia Hollywood, Yaari Road Versova. Shri
Mahendra Jain stated that he was working as an agent who helped
them (i.e., Mohammad Rafique Razvi alias Arif and Shri Sameer
Haroon Marchant alias Afzal Haroon Batatawala i.e you,) to sell
the smuggled gold in the local market on a commission basis. The
officers asked Shri Ummed Singh, Shri Mahipal Vyas, Shri
Mohammad Rafique Razvi alias Aarif, Shri Mahendra Jain and
Shri Shailesh whether they had any documents pertaining to the
said cash and gold to which all of them replied in the negative. In
the absence of any valid documents proving the legitimate
ownership of the said gold and cash, the DRI officers recovered
the said gold and cash from the premises vide panchnama dated
05.03.2024, which was subsequently seized under Seizure Memo
dated 06.03.2024 under the provisions of the Customs Act, 1962.
Taking into account the facts stated by Shri Mahendra Jain in
respect of gold smuggling by Shri Mohammad Rafique Razvi alias
Arif and his financier Sameer Haroon Marchant alias Afzal
Haroon Batatawala i.e you, two separate teams were dispatched
Signature Not Verified
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By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
by DRI, Mumbai to the residential premises of Shri Mohammad
Rafique Razvi alias Arif and Shri Sameer Haroon Marchant alias
Afzal Haroon Batatawala i.e you to carry out the search
proceedings therein as it was suspected that some more smuggled
gold could have been concealed at their residential premises.
iv) Upon reaching of the DRI officers’ team at the residential
premises located at 1401-B Kanakia Hollywood, Yaari Road
Versova, Shri Sameer Haroon Marchant alias Afzal Haroon
Batatawala i.e you, slightly opened the door and on seeing the
DRI officers immediately shut the door and prevented the DRI
officers from entering the premises. After some time, the officers
of DRI managed to enter the premises and observed that the house
was in complete disarray. It appeared that the cupboards had
been emptied and various items were lying in the rooms. It,
therefore, became apparent that Shri Sameer Haroon Marchant
alias Afzal Haroon Batatawala i.e you, had tried to destroy the
evidence. An amount of Rs. 60,40,000/- and 4,600 UK Pounds
were recovered under panchnama dated 05.03.2024 and
subsequently seized vide seizure memo dated 06.03.2024 as sale
proceeds of smuggled gold.
v) The other team of DRI officers was sent to the residential
premises of Shri Mohammad Rafique Razvi alias Aarif located at
149, Haroon Manzil, B Block, 4th floor, Room No.10,
Immamwada Road, Mumbai- 400003. During the search of the
residential premises of Shri Aarif, 3772.38 grams of smuggled
gold was recovered under panchnama dated 05.03.2024, the
government approved gold assayer assayed all the gold recovered
from the said premises and issued valuation certificate dated
05.03.2024, certifying the above said recovered goods are 24KT
gold total weighing 3772.38 grams valued at Rs. 2,51,61,775/-
and the said recovered gold was seized vide seizure memo dated
06.03.2024 under the provisions of Customs Act, 1962.
vi) Statements of Shri Mahipal Vyas and Shri Ummed Singh were
recorded on 05.03.2024 under Section 108 of the Customs Act,
1962, wherein they, inter alia, confirmed that they are involved in
the trading of smuggled gold. They also informed that Shri
Mohammad Rafique Razvi alias Aarif and Shri Mahendra Jain
brought foreign origin smuggled bars and cut pieces total
weighing 7711.38 grams on 05.03.2024 to sell and collect the sale
proceeds of the smuggled gold. They stated that they look after the
day-to-day operations of the said premises on the directions of
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 5 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
their employer i.e. Mahi Bhai. Furthermore, they handle various
tasks, including managing smuggled gold deliveries, collecting
cash from clients, and overseeing accounting responsibilities.
vii) Further, Shri Mohammad Rafique Razvi alias Aarif in his
voluntary statement recorded on 05.03.2024 and 07.03.2024
under Section 108 of the Customs Act, 1962, inter alia, stated that
he came in contact with Shri Sameer Haroon Marchant i.e. you in
December 2023, you gave him the task of sale of smuggled gold
bars and, in return, had offered a commission of Rs. 2000 per kg
which was accepted by him; that accordingly, Shri Sameer
Haroon Marchant i.e. you started sending smuggled gold to him
regularly, which included foreign-marked gold bars, cut pieces of
foreign-marked gold bars, melted gold bars etc; that Shri Sameer
Haroon Marchant alias i.e. you used to send 2-3 Kg of smuggled
gold every 2-3 days, for the sale of which he used to get in touch
with Mr. Mahendra Jain alias Jetha; that with regard to the
seizure of 7711.38 grams of smuggled gold from the premises
located at Shop No. 19, Ist Floor, Building No. 51/53, Vithalwadi
Lane, Kalbadevi, Mumbai on 05.03.2024, he along with Shri
Mahendra Jain alias Jetha had gone there to sell the smuggled
gold. He further stated that while the exchange was underway,
they were intercepted by the officers of DRI, Mumbai and 7711.38
grams of smuggled gold was recovered; that he acknowledges
receiving approximately 8.5-9 kilograms of foreign-marked
smuggled gold from Shri Sameer Haroon Marchant i.e you on
04.03.2024; that on 04.03.2024 itself, he had sold approximately
04 kg worth of smuggled gold to Shri Mahi Bhai and Shri Brijesh
alias Birju; that he obtained an additional 6.5 kilograms of
foreign-marked smuggled gold from Shri Sameer Haroon
Marchant i.e. you increasing the total quantity of smuggled gold
with him to approximately 11-11.5 kg; that out of this total, he
sold 7711.38 grams to Shri Mahi Bhai and Shri Brijesh alias
Birju, and the remaining gold was stored at his residence.
Further, on being asked about the sale proceeds of 04 Kg of
smuggled gold, he stated that the same was transferred by Mahi
Bhai through hawala; that he received a total of 11-11.5 kgs of
smuggled gold from Shri Sameer Haroon Marchant i.e you for
selling the same in the local market; that he had gone to sell
approximately 7.7 kg of smuggled gold to Shri Mahi Bhai and Shri
Brijesh alias Birju at his shop; that 3772 38 grams of smuggled
gold recovered from his residence which constitutes the remaining
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 6 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
portion of the 11-11.5 kg that he received from Shri Sameer
Haroon Marchant alias Afzal Haroon Batatawala i.e you, that he
received a call from Afzal i.e. you at around 1:00 pm on
04.03.2024, informing him that you have instructed someone to
deliver approximately 8.5-9 Kg of smuggled gold to his residence;
that the delivery was made around 2:30 pm by that person; that
subsequently, he contacted Shri Mahendra Jain to facilitate the
sale of the aforementioned quantity of smuggled gold; that he also
received token number from the same person who delivered the
smuggled gold to him at his residence having contact number
(8828961282), saved in his mobile by name of MF; that he
subsequently transferred the token number to Shri Mahendra Jain
for transferring the sale proceeds to Dubai; that Similarly, on the
following day i.e. on 05.03.2024, he received another call from
Shri Sameer Haroon Marchant alias Afzal i.e you at around 1-
1:30 pm, instructing the same person to deliver an additional 6.5
Kg of smuggled gold to his home. Further, Shri Aarif
acknowledged that both Afzal i.e. you and Kitty were apprehended
by the DRI, Mumbai Zonal Unit in 2017, due to your involvement
in smuggling of gold and that both of you have been engaged in
the smuggling of gold for an extended period.
viii) Statement of Shri Mahendra Jain was recorded on
05.03.2024 under Section 108 of the Customs Act, 1962, wherein
he, inter-alia, stated that Mr. Mohammad Rafique Razvi alias
Aarif proposed a task involving the sale of smuggled gold bars on
his behalf, offering him a commission of Rs. 1000-2000 per
kilogram for each sale: that he agreed to Aarif’s proposition and
assisted him in selling of 7711.38 grams smuggled gold at Shop
No. 19, Ist Floor, Building No. 51/53, Vithal wadi Lane,
Kalbadevi, Mumbai-400002; that he was aware that Mahi Bhai
and Brijesh alias Birju were dealing with smuggled gold at the
said premises and whenever Aarif brought the smuggled gold for
sale, he accompanied him to the said location to sell the smuggled
gold; that he assisted Mr. Aarif when he sold 04 kilograms of
smuggled gold to Mahi Bhai and Brijesh alias Birju on
04.03.2024, earning a commission of Rs. 4000 from Aarif for his
assistance.
ix) Statement of Shri Sameer Haroon Marchant/Afzal Haroon
Batatawala alias Afzal ie. you was recorded on 05.03.2024 under
Section 108 of the Customs Act, 1962, wherein you, inter alia,
admitted to assigning Mr. Mohammad Rafique Razvi alias Aarif
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 7 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
the task of selling smuggled gold bars on your behalf and offered
him a commission of Rs. 2,000 per Kg for each sale; that you
started sending smuggled gold to Aarif on a regular basis which
included foreign-marked gold bars, cut pieces of foreign-marked
gold bars, melted gold bars etc. and used to send 2-3 Kg of
smuggled gold to Shri Mohammad Rafique Razvi alias Aarif at a
gap of every 2-3 days; that with regards to the modus operandi,
you informed that a person named Amzad, residing in Dubai, is
responsible for sending the smuggled gold from Dubai to India
through carriers mainly in the form of bars and sticks; that upon
their arrival at Mumbai International Airport, Amzad provides
you with the details of the carrier through WhatsApp; that
accordingly, based on this information, you would arrange a
meeting at a pre-determined secure location; that subsequently,
you and your wife Ms. Joyi Kitty Joseph would handle the disposal
of the smuggled gold in the local market through Aarif; that
occasionally, as per your or your wife’s instructions, the smuggled
gold was also directly delivered to Aarif; that you received and
delivered 8.5 kilograms of smuggled gold to Shri Aarif on
04.03.2024, and an additional 6.5 kilograms on 05.03.2024; that
the cash and the foreign currency amounting to Rs. 60.40 Lakh
and 4600/- UK Pounds respectively, recovered from your
residence at 1401-B Kanakia Hollywood, Yaari Road Versova are
the sale proceeds of smuggled gold.
x) During the search at your residential premises at Versova,
disorderly state of the room suggested a recent flurry of activity
or perhaps an attempt to conceal or hastily tidy up before the
officers’ arrival. It was also noticed by the officers that a car key
was thrown outside the window and was lying on the outer
platform of the window. The chaos of the room added another
layer of intrigue to the situation, prompting the officers to further
investigate the circumstances surrounding its presence. It was
noticed that you might have tried to conceal or destroy the
evidence by throwing them out of your house. Accordingly, a team
of DRI officers was then sent to the Sai Nagar Cooperative
Housing Society, Plot-66, Yari Road, Andheri (West), Versova-
400061, adjacent to your residential society. On enquiry Shri
Shakeel Ahmed Khan, Society manager informed that on
05.03.2024 some mobile phones and gold bars were found in the
society premises in the evening which were in the possession of
Ms. Ayesha and Ms. Anisha Zainab Rizvi. Accordingly, 02 kg
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 8 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
foreign origin gold bars valued at Rs. 1,33,40,000/- and 03 mobile
phones were recovered by the DRI officers under panchnama
dated 06.03.2024, valuation certificate for the said 02 gold bars
dated 06.03.2024 was issued by the govt. approved valuer. Said
02 gold bars were seized vide Seizure Memo dated 19.03.2024.
The mobile phones were found to be in extremely damaged
condition and were sent to a forensic laboratory for possible data
extraction.
xi) The statement of Shri Sharfaraz Samiullah Patel (who was
present along with Shri Sameer Haroon Marchant i.e. you during
search of your residential at Versova) was recorded on
06.03.2024 under Section 108 of the Customs Act, 1962 wherein
he, inter alia, stated that at around 6:30 PM on 05.03.2024,
someone rang the doorbell of the flat and Mr. Sameer Haroon
Marchant ie you cautiously opened the door slightly, and upon
seeing some individuals outside, immediately shut it; that you then
appeared to be in a state of panic, moving around the rooms and
hall; that then you proceeded to your bedroom, grabbed your
mobile phones, and threw them along with two yellow-colored
metal bars out of the window of the bedroom facing Sai Nagar,
CHS; that you also threw your car keys from the window of
another bedroom; that regarding the number of mobile phones
thrown away, he was uncertain, but he observed two or three
mobile phones; that the individuals at the door continued to ring
the doorbell, and it took Mr. Sameer Haroon Marchant i.e you 5-
7 minutes to open the door; that it was only upon opening of the
door that he realized the individuals outside were officers of the
DRI.
xii) Further statement of Shri Sameer Haroon Marchant/Afzal
Haroon Batatawala alias Afzal i.e. you was recorded on
07.03.2024 under Section 108 of the Customs Act, 1962, wherein
you, inter alia, admitted all three mobile phones viz. blue-
coloured Samsung phone, grey-coloured Samsung phone and
Samsung Fold phone recovered under panchanama dated
06.03.2024, belong to you; that you use the blue-coloured
Samsung phone to communicate with Amjad, your counterpart in
Dubai, who sends gold through his carriers for smuggling the
same into India; that the grey-coloured Samsung phone is used to
communicate with Mr. Mohammad Rafique Razvi @ Aarif and
Samsung Fold phone to communicate with your relatives and
family members; that the 02 foreign-marked gold bars recovered
Signature Not Verified
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By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
during the aforesaid panchnama also belong to you and the said
gold bars are smuggled and you do not have any legitimate
documents to prove their ownership; that you have saved Amzad
contact details in your blue-coloured Samsung phone as Amj and
his phone no. 8828961282 and that you have shared his contact
no. with Mohammad Rafique Razvi alias Aarif; that on the
evening of 05.03.2024, at around 6-6:30 pm, DRI officers arrived
at your house, when they rang the doorbell, you opened the door
slightly and on realizing that they were officers from the DRI, you
immediately panicked and shut the door; that you dealt with
smuggled gold and any evidence found in your house could be
used against you, so you decided to dispose of the smuggled gold
and any incriminating evidence that the DRI authorities may
recover from your house; that at that time, Shri Sharfaraz
Saimullah Patel was also present in your house; that you swiftly
gathered the 02 gold bars and all your phones from your bedroom
and began searching for places to hide them and you wrapped the
gold bars with brown adhesive tape, and you went to your
bedroom and threw them out of the window facing Sai Nagar
CHS; that following this, you opened the door and the DRI officers
entered and began searching your premises; that these gold bars
were smuggled into India via airport through various carriers
employed by Amjad without paying customs duties; that you were
arrested by NCB, Ahmedabad under the NDPS Act and were
released from Baroda jail in Oct 2013. After your release, you
officially changed your name from Afzal Batatawala to Sameer
Haroon Marchant; that in 2017 also DRI Mumbai has arrested
you in a case of gold smuggling.
xiii) Statement of Smt. Ayesha Kapadia was recorded on
07.03.2024 under Section 108 of the Customs Act, 1962, wherein
she, inter alia, stated that on 05.03.2024, at around 6:25PM-
6:30PM, she was standing in the premise near her apartment
wing, where a blue color phone dropped near her feet; that she
picked up the phone and went towards the crowd to find out the
matter; that she found two more phones were also found in the
premise; that at that time a watchman came to her with an
unclaimed gold bar, being the committee member of the society
and treasurer of the society, she took the gold bar from him to
keep it in the safe custody in the society. Thereafter, she took the
phones and 01 gold bar found in the society with other committee
members to keep it in safe custody.
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 10 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
xiv) Statement of Ms. Anisah Zainab Rizvi was recorded on
07.03.2024 under Section 108 of the Customs Act, 1962, wherein
she, inter alia, at around 6 pm, when she was taking round in the
building, she saw crowd and the treasurer (Ayesha), who found
three phones in the society premise; that at around 6-6:30 pm,
while taking round in the society she found 01 gold bar and kept
it in her bag and took it to her home; that she called the treasurer
at around 9-9:30 pm, to hand it over to her but it could not be
done; that in the morning, when she again tried the treasurer
phone at 11-11:30 am, to hand it over, it was found that the
treasurer has gone to the hospital, then at around 2-2:30 pm she
went to her friend Mrs. Reshma Saheer Kasmani’s place, who lives
in a nearby society called John Rose and asked her to keep the
gold bar so that they can hand it over to the treasurer, when the
treasurer returns as she has no male person living in her house.
xv) Statement of Ms. Reshma Zaheer Kashmi was recorded on
07.03.2024 under Section 108 of the Customs Act, 1962, wherein
she, inter alia on 06.03.2024, her friend Anisah came to her house
at around 03 pm with a gold bar to keep it in the safe custody as
she has no male member in her house, till the time it is handed
over to the Committee members in the society. Anisah found it
unclaimed in the premise of the society names Sai Nagar and as
Anisah was unable to contact the treasury member of the
committee of the society, so it was given to her to keep it in safe
custody.
xvi) DRI officers received another specific intelligence on
06.03.2024 that the wife of Shri Sameer Haroon Marchant i.e.
you, Ms. Joyi Kitty Joseph, was trying to evade DRI and, hence, a
team was dispatched to search the premises located at Plot No.
149, opp. Kusum Farms, Dharvali Village, Madh Marve Road,
Malad (West), Mumbai-400061 where Ms. Joyi Kitty Joseph was
found and who admitted that she had instructed the caretakers and
the workers of the said premises to move the two metal almirahs
containing cash and silver to the residence of one Shri Surendra
Harish Davdekar alias Bhuriya at Ambe Wadi, Dharval: Village,
Madh Marve Road, Malad (West), Mumbai-400061. The DRI
officers reached the said premises and recovered Indian Currency
amounting to Rs. 25,66,500/- and 6 pieces of 01 Kg silver bars
valued at Rs. 4,51,800/- under panchnama dated 06.03.2024 and
valuation certificate for the same was issued by the govt. approved
valuer on 11.03.2024. The said cash and silver bars were seized
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 11 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
under Seizure Memo dated 19.03.2024.
xvii) The statement of Shri Ramesh Kumar, driver-cum-caretaker
of the premises Plot No. 149, opp. Kusum Farms, Dharvali
Village, Madh Marve Road, Malad (West), Mumbai-40006 was
recorded on 07.03.2024 under Section 108 of the Customs Act,
1962 wherein he, inter alia, stated that on the morning of
06.03.2024, he was instructed by one of the caretakers to drive a
tempo to shift the 2 almirahs from the premises to the residence of
Mr. Surendra Harish Davdekar, as per the directions of Ms. Joyi
Kitty Joseph; that he was unaware of the reason behind the
sudden need to shift the almirahs and he was not aware of the
contents of the almirah.
xvii) The statement of Shri Surendra Harish Davdekar alias
Bhuriya, currently overseeing the construction work at the
farmhouse of Ms. Joyi Kitty Joseph, was recorded on 07.03.2024
under Section 108 of the Customs Act, 1962 wherein he, inter alia,
admitted that he was asked by Ms. Joyi Kitty Joseph to keep the
two almirahs at his place due to certain urgency.
xix) The statement of Ms. Joyi Kitty Joseph was recorded on
06.03.2024 under Section 108 of the Customs Act, 1962 wherein
she, inter alia, stated that three months back Shri Mohammad
Rafique Razvi alias Aarif approached her for a potential job; that
she asked Sameer Haroon Marchant i.e. you to help him and then
you offered him (Aarif) to take up the task involving the sale of
smuggled gold bars for a commission of Rs. 2000 per kilogram;
that the commission is paid by her or you to Aarif in cash only so
that no money trail is left behind; that on being asked about
Amzad, she stated that Sameer Haroon Marchant i.e. you deal
with Amzad; that cash recovered from your residence are the sale
proceeds of the smuggled gold, as you are actively engaged in
gold smuggling and all the cash brought to home by you is related
to the sale proceeds of gold smuggling activity: that on being
questioned about shifting of almirahs from her farm house, she
stated that after the search was conducted at her residence in
Versova, she anticipated the possibility of a similar search at her
farmhouse; that as she knew that the almirahs containing 6 Kg
silver and approximately Rs. 25 lakhs cash which were the sale
proceeds of the recently smuggled gold, as a precautionary
measure she directed the caretakers to move the two almirahs to
Shri Surendra Harish Davdekar alias Bhuriya’s premises.
Further, Ms. Joyi Kitty Joseph stated that she has secreted
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 12 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
approximately Rs. 70 lakhs in cash at her sister’s residence (Ms.
Crecy Maria Creado) located at Flat No. 1813, Ruby Isle CHS,
Royal Palms, Aarey Colony, Goregaon (East), Mumbai; that on
the moming of 06.03.2024, she transferred Rs. 20 lakhs from the
aforementioned Rs. 70 lakhs to her friend’s residence (Shri
Liyaqat Taji) in Sultanabad, Jogeshwari; that the remaining Rs.
50 lakhs in cash were retained at her sister’s residence.
xx) A team of officers was sent to search the premises of Shri
Mohd. Liyaqat Taji at Flat No. 304, Building no. 2, Sultanabad
Darshan CHS Ltd, Behram Baug Road Jogeshwari West-400102,
where Indian Currency of Rs. 20,60,350 – and 202 USD was found
in a bag handed over by Ms. Joyi Kitty Joseph to Mohd. Liyaqat
Taji for safe keeping which was recovered under Panchnama
dated 08.03.2024 and seized under Seizure Memo dated
19.03.2024. The statement of Mohd Liyaqat Taji was recorded on
08.03.2024 under Section 108 of the Customs Act, 1962 wherein
he, inter-alia, stated that he is a friend of Ms. Joyi Kitty Joseph
since 20 years; that on the morning of 06.03.2024, he got a call
from Ms. Joyi Kitty Joseph for his assistance who then handed
over the bag to him without mentioning the contents of the bag for
safe custody. Being her old friend, he kept the bag inside his house
as she appeared to be in some trouble.
xxi) Thereafter, a team of officers was sent to search the premises
of her sister’s home located at Flat No. 1813, Ruby Isle CHS Royal
Palms, Aarey Colony, Goregaon (E), Mumbai along with Shri
Pathan Aiyubkhan Hamidkhan who is a driver-cum-caretaker of
Ms. Joyi Kitty Joseph. Shri Pathan, in his statement dated
07.03.2024 stated that Ms. Joyi Kitty Joseph handed over the keys
of the said premises in a brown colour handbag for safekeeping
to him as he was her trusted person; that the said premises contain
a huge amount of cash and silver bars. Accordingly, Shri Pathan
opened the door of the said premises, and a search was confucted
which led to further recovery of Indian Currency of Rs.
1,01,87,100/-, foreign currency of 3800 UK Pounds, 940 US
Dollars and 10 silver bars/bullion weighing 9528.9 grams valued
at Rs. 7,17,526/-. The said items were recovered under
panchnama dated 08.03.2024. Valuation certificate for the same
was issued by the govt. approved valuer on 11.03.2024. The said
cash and silver bars were seized under seizure memo dated
19.03.2024.
xxii) Shri Sameer Haroon Marchant i.e. you along with five other
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 13 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
members of the syndicate were arrested under the provisions of
Section 104(1) of the Customs Act, 1962 on 06.03.2024 for
various offences punishable under Section 135 of the Customs Act,
1962, vide arrest memo dated 06.03.2024. Shri Sameer Haroon
Marchant i.e. you, Smt. Joyi Kitty Joseph and Shri Mohammad
Rafique Noor Mohammad Razvi alisa Arif were given one day
DRI custody till 07.03.2024 Thereafter, on 07.03.2024, they were
produced before the Hon’ble Additional Chief Metropolitan
Magistrate (ACMM), 19th Court, Esplanade, Mumbai during
which they have retracted their statements. Subsequently, a
rebuttal was filed by the Sponsoring Authority promptly before the
Hon’ble Court on 11.03.2024 stating that their retraction is an
afterthought and there was no duress or coercion involved at the
time of recording their statements. Shri Sameer Haroon Marchant
i.e. you were initially placed under judicial custody till 19.03.2024
and an extension was subsequently granted till 01.04.2024 by the
order dated 19.03.2024 of the Hon’ble ACMM. Vide order dated
01.04.2024, the Hon’ble ACMM, extended his Judicial Custody till
15.042024. You have filed the bail application dated 01.04.2024
before the Hon’ble ACMM. DRI Mumbai has filed a reply on
15.04.2024 before Hon’ble ACMM for cancellation of your bail
application. Shri Sameer Haroon Marchant i.e you were released
on bail vide order dated 16.04.2024 of Hon’ble ACMM on certain
conditions viz. furnishing cash bail of Rs. 100000 with one or
more sureties in like amount, be provisionally released on his
furnishing cash ball of Rs. 100000 in lieu of surety for 2 months,
not influence and tamper with prosecution witnesses, cooperate
with further investigation of the case, be present before DRI
officers for further 15 working days from date of release from 11
AM to 2 PM, thereafter on every 1st and 15th of Month, if holiday
is not there and if holiday falls on 1st and 15th on next working
day in between 11 AM to 2 PM and also as and when called by
respondent (DRI, MZU) in connection with investigation of the
offense under written intimation, till further investigation is
completed or till further orders, surrender his passport, take prior
permission to travel abroad, furnish residential address and
mobile no./email, furnish address and mobile number of his two
nearest relatives with their consent and address proof for
contacting them if he fails to appear during further investigation.
xxiii) Three mobile phones which were recovered under
panchanama on 06.03.2024, were found to be in extremely
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 14 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
damaged condition and were sent to a forensic laboratory for
possible data extraction. However, since two of the mobile phones
are in a severely damaged condition, recovery of any data from
them, if any, is bound to take time. Phone number used on these
mobiles are 7045771998, 9076367869 and 9820221356. Data
from only one phone have been retrieved and on analysis of the
forensic data retrieved, the following facts emerged:
a) SIM was having phone no. 9076367869.
b) Phone is Samsung Galaxy Z Fold, Model No. SM-P936B,
IMEI-350383130192012, IMEI2- 353800710192010.
c) From 01.01.2024 to 05.03.2024, 19 calls have been exchanged
between you and Mohammad Rafique Razvi alias Aarif
(9967869264) and on 05.03.2024 at 12:19 pm you contacted
Aarif.
d) You were browsing the flight booking websites and the flights
tracking website regularly.
In this regard, a Certificate dated 07.03.2024 from Cyber
Forensic Laboratory, Mumbai under Section 65 B(4)(C) of the
Evidence Act 1872 has been obtained.
xxiv) The subscriber detail report (SDR) of the SIM used in one of
the mobile phones having no. 9076367869 shows that it is
registered in the name of Shri Sameer Haroon Marchant i.e. you
and you have accepted the same in your statement dated
19.04.2024. Call Detail Report (CDR) of the other two phones
having phone nos. 9820221356 and 7045771998 reveals that both
the mobile phones were used in the vicinity of the residential
addresses of Sameer Haroon Marchant ie you, and thus it appears
that the devices belong to you. All the three number 9820221356,
7045771998 and 9076367869 were showing the same location
most of the times as per their Call Details Records provided by
their SIM card providers.
Sr. Date Location shown in CDR
No.
1 03.02.2024 Near Versova Village
Bus stop Andheri West
2 04.02.2024 Near Versova Village
Bus stop Andheri West
3 05.02.2024 Near Atharva tech Park,
Dharvali Village, Madh
Mumbai
4 06.02.2024 Near Versova Village
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 15 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
Bus stop Andheri West
5 07.02.2024 Near Versova Village
Bus stop Andheri West
6 08.02.2024 Near Atharva tech Park,
Dharvali Village, Madh
Mumbai
7 15.02.2024 Thote lane nea nityanand
hotel madh jetty Mumbai
61
8 29.02.2024 Yari road Ganesh
Mandir Andheri W
9 04.03.2024 Near Versova Vi!lage
Bus stop Andheri West
xxv) Further statements of Shri Sameer Haroon Marchant ie you
were recorded on 19.04.2024 and 26.04.2024 wherein you have
chosen to remain silent and not share any comments on the
obvious question asked. It shows your non-cooperation.
xxvi) Further statement of Shri Mohammad Rafique Razvi alias
Aarif was recorded on 26.04.2024 after he was released on bail
on 16.04.2024 wherein he, inter alia, stated that retraction
application dated 07.03.2024 was filed on the advice of his lawyer
and he was not aware of the contents of the said retraction
application; that once again reiterate that the contents of his
earlier statements dated 05.03.2024 and 07.03.2024 are
absolutely correct and true; that phone no. 7045771998 was used
by Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala
le. you to contact him; that you used to calls/ messages and
WhatsApp calls/messages through this number to discuss the
delivery and disposal of smuggled gold; that on 04.03.2024 and
05.03.2024, there were six WhatsApp calls on each day; that
mobile phone Samsung Galaxy F04 SM-8045F having phone
number 9004388755 was provided by you to him and he has saved
your number by the name TP. Total 25 calls were exchanged
between you and Aarif from 01.01.2024 to 05.03.2024 as per
CDR.
xxvii) Shri Sameer Haroon Marchant ie you, in your statement
dated 05.03.2024 and 07.03.2024 have admitted that you were
involved in multiple cases of smuggling in the past. From the
records available, the case details wherein your involvement have
been established are as under:
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 16 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
S.No. File Issue Role/Status
No.
1 NCB/ Smuggling Afzal Batatawala
AZU/ of i.e you were
CR- Methaqualo financing the
05/200 ne powder at Methaqualone
3 Narsanda. production and
dealing in
Mandrax tablets.
Arrested vide
Arrest Memo
dated 13.05.2004.
The
supplementary
complaint was
filed in addition to
the actual
complaint dated
29.03.2004.
The changes were
confirmed by the
NDPS Fast Track
Court vide
judgment dated
28.09.2007 and
the appeal filed by
you have been
rejected by the
Gujarat HC vide
order dated
17.08.2012. An
appeal was filed
by you in the
Supreme Court,
and you were
granted bail in
September 2013
after spending
over 9 years in
jail.
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 17 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
2 DRI/M Smuggling Shri Sameer
ZUIIR of foreign Haroon Marchant
U/INT NT-62/2017 alias Afzal
- marked gold Haroon
62/201 bars Batatawala i.e
weighing you hatched a
7
3995 grams conspiracy to
valued at smuggle gold into
1,06,09,741/ India. He was the
- kingpin of the
at CSI syndicate.
Airport, An SCN vide F.
Mumbai on No.
12.05.2017. DRI/MZU/IRU/IN
T-62/2017 was
issued on
01.11.2017 which
was confirmed by
OIO ADC/AK/
ADJN/52412018-
19 dated
31.03.2019.
xxviii) Smt. Joyi Kitty Joseph in her statement dated 06.03.2024,
stated that Shri Sameer Tandel is like her son since long, but he
was not legally adopted. Shri Sameer Tandel on behalf of Shri
Sameer Haroon Marchant i.e. you and your wife vide letter dated
27.03.2024 requested DRI, Mumbai not to dispose of the seized
cash and silver as the same is claimed by the notices.
2. From the facts mentioned herein above, it is evident that you
i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala
are a key player in arranging and handling the smuggling of
foreign origin gold into India in a planned and systematic manner,
as also its disposal within India. The material placed also
indicates that apart from the present instance involving 13.484
Kgs of smuggled gold and connected sale proceeds, you are
habitually active in indulging in the prejudicial activities
including gold smuggling. Your engagement is of the nature that
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 18 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
brings out your tendency and propensity to indulge yourself in
arrangements related to smuggling in the future also. Your
attempt to smuggle and disposal of foreign gold into India, was
foiled by the officers of DRI, Mumbai when they intercepted you
and your accomplices.
3. In view of the facts, circumstances, findings, corroborative
statements, and your role in this whole operation, I am satisfied
that you i.e. Shri Sameer Haroon Marchant alias Afzal Haroon
Batatawala are a habitual offender and a key person of this well-
organized syndicate involved in the smuggling and disposal of
foreign origin gold into India. You i.e. Shri Sameer Haroon
Marchant alias Afzal Haroon Batatawala along with your
associates, are in the habit of regularly smuggling gold into India
from abroad, without declaring the same to Customs Authorities
and without paying the applicable duty, which amounts to
smuggling in terms of Section 2 of Customs Act, 1962. The
underlying common threat is your propensity to smuggle goods
for making illicit profit and thereby putting the national economy
into danger, which needs to be curbed; and you are to be
prevented from indulging in such activities further.
4. I am, satisfied that you i.e. Shri Sameer Haroon Marchant alias
Afzal Haroon Batatawala have indulged in the activities
amounting to “smuggling” in terms of Section 2(39) of the
Customs Act, 1962 and Section 2(e) of the COFEPOSA Act, 1974;
and your acts of deliberate commissions and omissions have
rendered the goods involved liable for confiscation under the
provisions of Customs Act, 1962.
5. It is evident that you i.e. Shri Sameer Haroon Marchant alias
Afzal Haroon Batatawala have innate propensity to devise ways
and means to smuggle foreign origin gold into India and to
defraud the Government of its revenue. You i.e. Shri Sameer
Haroon Marchant alias Afzal Haroon Batatawala with the aid of
your trusted associates are running a well-organized smuggling
network & have established efficient mechanism in smuggling,
concealing, possessing, transporting, carrying and/or dealing in
the substantial quantities of foreign origin gold. You i.e. Shri
Sameer Haroon Marchant alias Afzal Haroon Batatawala
habitually and actively indulged yourself in the prejudicial
activities, and your engagement is of the nature that brings out
your propensity to indulge in gold smuggling in future also.
6. I am satisfied that, as evidenced and discussed in the foregoing
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 19 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
paras, Shri Sameer Haroon Marchant alias Afzal Haroon
Batatawala i.e. you have shown a general habit and propensity to
indulge in fraudulent activities by way of smuggling goods,
abetting the smuggling of goods, engaging in transporting or
concealing or keeping smuggled goods, and dealing in smuggled
goods, at the cost of government revenue and national security,
and with clear motive of enriching yourself with no concern to the
general economy and the national security interests.
7. In view of the facts and circumstances explained above, I have
no hesitation in concluding that you i.e. Shri Sameer Haroon
Marchant alias Afzal Haroon Batatawala have played a vital role
in the smuggling of foreign origin gold from Dubai. You i.e. Shri
Sameer Haroon Marchant alias Afzal Haroon Batatawala along
with your accomplices have executed the plan in an organized and
repeated manner for the acts of smuggling. Investigation done by
the officers of DRI, Mumbai clearly establishes your continued
propensity and inclination to indulge in the acts of smuggling in a
planned manner and that unless prevented, you i.e. Shri Sameer
Haroon Marchant alias Afzal Haroon Batatawala will continue to
do so. Further considering the nature and gravity of offence, and
the organized way you i.e. Shri Sameer Haroon Marchant alias
Afzal Haroon Batatawala have engaged yourself in such
prejudicial activities, your role therein, and your high potentiality
& propensity to indulge in such prejudicial activities in future, I
am satisfied that there is an immediate need to prevent you from
smuggling goods. Hence, you i.e. Shri Sameer Haroon Marchant
alias Afzal Haroon Batatawala ought to be detained under the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 with a view to preventing you from smuggling
goods, abetting smuggling of goods, engaging in transporting or
concealing or keeping smuggled goods, and dealing in smuggled
goods, in terms of Section 3(1) of the COFEPOSA Act, 1974.
8. Prevention of perpetration of such despicable activities is
indispensable for the greater cause of the nation. The smuggling
syndicate has committed the offence with meticulous planning &
deliberate designs having the sole intention of personal profit
regardless of the consequences of the society at large, and there
is every likelihood that you i.e. Shri Sameer Haroon Marchant
alias Afzal Haroon Batatawala as a key member of the syndicate
will engage yourself in such smuggling activities again in view of
your propensity to do so.
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 20 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
9. I am aware that prosecution under Section 135 of the Customs
Act, 1962 may be launched against you i.e. Shri Sameer Haroon
Marchant alias Afzal Haroon Batatawala and adjudication
proceedings are also likely to be initiated soon, which are
however punitive in nature and independent of the preventive
detention provided under the COFEPOSA Act, 1974. However,
considering your i.e. Shri Sameer Haroon Marchant alias Afzal
Haroon Batatawala’s high propensity to indulge in the prejudicial
activities, I am satisfied that in the meantime you should be
immobilized by detention under COFEPOSA Act, 1974 with a
view to prevent you from smuggling goods, abetting the smuggling
of goods, engaging in transporting or concealing or keeping
smuggled goods, and dealing in smuggled goods, in future.
10. Having regard to the chronological sequence of events in this
case, the time required to scan the proposal along with the
voluminous relied upon documents (RUDs), the time required to
procure additional information, the time required to apply my
mind to arrive at the subjective satisfaction and to formulate the
Grounds of Detention, I am satisfied that the nexus between the
dates of incident and the passing of this Detention Order as well
as object of your detention has been well maintained.
11. I consider it to be against the public interest to disclose the
source of information at the relevant paragraphs of the Grounds
above.
12. While passing the Detention Order under the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 197 4, I have referred to and relied upon all the
documents mentioned in the enclosed list, which are also being
served to you along with the Grounds of Detention.
13. You i.e. Shri Sameer Haroon Marchant alias Afzal Haroon
Batatawala have the right to represent against your detention to
the Detaining Authority, to the Central Government as well as to
the State 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:
a. Representation meant for the Detaining Authority should be
addressed to the Joint Secretary (COFEPOSA), Government of
lndia, Ministry of Finance, Department of Revenue, Central
Economic Intelligence Bureau (CEIB), 6th Floor, ‘B’ Wing
Janpath Bhawan, Janpath, New Delhi- 110001.
b. Representation meant for the Central Government should be
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 21 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
addressed to the Director General, Central Economic Intelligence
Bureau, Govt. of lndia, Ministry of Finance, Department of
Revenue, 6th Floor, B-Wing Janpath Bhawan, Janpath, New
Delhi- 110001.
c. Representation meant for the Advisory Board should be
addressed to the Chairman, State Advisory Board, Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act
(COFEPOSA), Bombay High Court, Mumbai, Maharashtra-
400032.
14. You are further informed that you shall be heard by the State
Advisory Board in due course, if the Board considers it essential
to do so or if you so desire.
15. The above grounds are communicated to you for the purpose
of Clause (5) of Article 22 of the Constitution of India and as
required under Section 3(3) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974.”
SUBMISSIONS ON BEHALF OF THE PETITIONER
4. The submissions made by ld. Counsel for the Petitioner is that firstly,
the ordinary law is sufficient to take care of the apprehensions of the
Sponsoring Authority/Respondent No.3 and the impugned Detention Order is
totally uncalled for. Further, various vital documents including the application
for cancellation of bail bearing Misc. Appl. No. 949 of 2024 in RA
No.191/2024 filed by the Sponsoring Authority/Respondent No.3 before the
ld. Sessions Court challenging the bail granted to Detenu on 16th April, 2024,
was not placed before the Detaining Authority, despite the same being filed
on 3rd May 2024 prior to the passing of the impugned Detention Order.
Further, other important documents such as papers pertaining to the earlier
complaint of 2004, judicial orders dated 28.09.2007, 17.08.2012 and/or order
passed by the Hon’ble Supreme Court etc. have not been placed on record.
5. It is argued that the apprehensions which are expressed in the impugned
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 22 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
Detention Order are in fact on the same grounds on which the bail granted to
the Detenu was opposed by the Sponsoring Authority/Respondent Authority
before the ld. ACMM. It is submitted that, in fact, the bail order dated 16th
April, 2024 considers the various grounds raised by the Sponsoring
Authority/Respondent No.3 for not granting of bail to the Detenu and the ld.
Trial Court having considered the same has imposed various conditions in the
bail order itself. Reference is made to paragraph 3 of the order granting bail
as also paragraph 6, which are reproduced as under:
“3. The investigation is under process. All out efforts are
being made to locate other members of the syndicate. He has
played significant role but not revealed details regarding the
supply chain of smuggling of gold into India. There is likelihood
that he will active the supply chain and engage in the smuggling
of gold again. The syndicate members are still at large. If he
enlarged on the bail the investigation may hamper, he may tamper
with or destroy the evidence and, influence the witnesses. He is
mastermind of the smuggling racket. His continuous judicial
custody is extremely crucial so that, his smuggling network can be
busted and the smuggling activities can be prevented He involved
in very serious economic offence which adversely affects the
economy of the country. The case is having international
ramifications. Therefore they submitted for rejecting the
application.
xxx xxx xxx
6. Ld. Advocate submitted that, he is in custody for more than 41
days. No purpose would be served by keeping him behind the bar.
During his custody his further statement is not recorded nor any
inquiry is conducted with him. It is also submitted that, he is ready
to co- operate for investigation and abide any terms and
conditions. On the other hand Id. Special PP vehemently
submitted that, he tried to destroy the goods. It is also submitted
that, as per information gathered he was earlier involved in
similar type of activities in Gujarat State and now changed his
name. Therefore there is possibility that, there may be moreSignature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 23 of 55
By:SHIWANI NEGI
Signing Date:29.10.2024
19:12:39
recovery and more involvement of the persons who are yet to be
arrested. But it is required to note that as per their statement they
themselves were not bringing gold from the Dubai but the part of
smuggling. It is not disputed that there is huge recovery of Indian
and foreign currency with gold and silver bars. But thereafter no
further progress in the investigation is shown. Moreover, no
further statement of the accused is recorded on the basis of further
investigation. Already there was sufficient time with the
respondent to investigate about his further involvement in the
alleged smuggling. The prosecution is suspecting that he may
again involved himself in similarvtype of activity. But care can be
taken by imposing certain conditions to prevent him from
engaging in smuggling activity. Therefore considering all these
circumstances and already the seized currency and other goods
were with the respondent it is just and proper to· enlarge him bail
on certain conditions. Therefore I pass following order:-
ORDER
1. Application is allowed.
2. Accused be released on bail on his executing PR. Bond
Rs.1,00,000/- (Rs One lakh only) with one or more sureties in
amount.
3. He be provisionally released on his furnishing cash bail
Rs.1,00,000/- (Rs. One Lakh only) in lieu of surety for 02 (two)
months.
4. He shall not influence and tamper with the prosecution
witnesses and evidence. He shall co-operate for further
investigation of the case.
5. He is directed to remain present before the respondent for
further 15 working days from the date of release from the jail in
between 11:00 am to 02:00 pm, thereafter on every 1st and 15th
Month if Holiday is not there and if Holiday falls on 1 and 15 on
next workign day in between 11:00 am to 02:00 pm and also as
and when called by respondent in connection with investigation of
this offence under written intimation, till further investigation is
completed or till further order.
6. He shall surrender his passport to the respondent for the period
of six months from the date of his arrest. The department to return
passport to him after said period with due acknowledgment
without any reference to the court.
7. He shall take prior permission of the court for travelling
Signature Not Verified
Digitally Signed W.P.(CRL) 1901/2024 Page 24 of 55
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abroad.
8. He shall furnish his residential address and telephone/mobile
number with E-mail address to the Court and department. He
shall not a change his residential address, telephone/mobile
number without prior intimation in writing to the Court and
concern Department
9. He shall furnish address and mobile number of his two nearest
relatives to the court and department with their consent alongwith
their address proof for contacting them if he fails to appear during
further Investigation before respondent and during trial of the
case”
6. It is submitted by the ld. counsel for Petitioner that the crux of the
aforesaid order granting bail to the Detenu is that despite the apprehensions
expressed by the Sponsoring Authority/Respondent No.3, the ld. ACMM has
held that after the search and the recording of the statements of all persons
involved, no further investigation was conducted and there was sufficient time
for the Sponsoring Authority/Respondent No.3 for further investigation. The
ld. ACMM has also held that the apprehension of the Petitioner getting
involved in similar type of activity i.e., smuggling of gold, is fully addressed
by imposing stringent conditions on the Petitioner, such as to appear before
the Sponsoring Authority/Respondent No.3 on a periodic basis as mentioned
in the order dated 16th April, 2024.
7. It is further submitted that in the application for cancellation of bail
filed by the Sponsoring Authority/Respondent No.3 on 3rd May, 2024, one of
the grounds for challenge is the possibility of the Detenu indulging in similar
activity of smuggling of gold and this was a vital document which could not
have been held back from the Detaining Authority. It is also submitted that
there is no live link between the incident and the impugned Detention Order.
Moreover, it is argued that the investigation has yet not been completed by
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the Sponsoring Authority/Respondent No.3 and, thus, the impugned
Detention Order deserves to be quashed.
8. In addition, it is argued that in the earlier prejudicial activity which has
been considered in the impugned Detention Order i.e., Case No.
NCB/AZU/CR-05/2013, the Detenu was convicted under the Narcotic Drugs
and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) on 28
September 2007, and has served 9 years of sentence and the appeal being
Crl.A. No. 000344/ 2013 is pending before the Hon’ble Supreme Court. The
same would not constitute material for passing the impugned Detention Order
as the same was immaterial. It is also argued that the arrest of the Detenu in
2017 in File No. DRI/MZU/IRU/INT-62/2017 under the Customs Act, 1962
also would not constitute relevant material as no prosecution had commenced
under the said Act after the arrest. On these grounds, the counsel for the
Petitioner submits that the Detenu deserves to be released.
9. Ld. Counsel for the Petitioner also submitted that the impugned
Detention Order is vague and there is no clarity as to under which sub-clause
of Section 3 of the COFEPOSA Act, the impugned Detention Order was
passed. It was also argued that in the impugned Detention Order all the
possibilities as mentioned in the COFEPOSA Act, 1974 have been mentioned
under the various sub-clauses of Section 3, without exactly referring as to
which particular provision was violated by the Detenu due to which the
impugned Detention Order was passed.
10. It is also argued that no allegation has been made against the Detenu
for absconding and violating the order dated 16th April, 2024. Also, it is
important to note the fact that the Detenu does not have a passport for the past
20 years and, therefore, cannot be a flight risk.
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11. Reliance has been placed on the following judgments by the ld. Counsel
for the Petitioner: –
i. Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415.
ii. Rekha v. State of T.N., (2011) 5 SCC 244.
iii. Frank Vitus v. Narcotic Control Bureau & Ors., 2024 SCC OnLine SC
1657.
iv. T.A. Abdul Rahman v. State of Kerala & Ors., (1989) 4 SCC 741.
v. Sama Aruna v. State of Telangana., (2018) 12 SCC 150.
vi. Mallada K Sri Ram v. State of Telangana & Ors., 2022 SCC OnLine SC
424
vii. Surinder Kumar Khanna v. Directorate of Revenue Intelligence., (2018)
8 SCC 271
viii. Union of India v. Manoharlal Narang., (1987) 2 SCC 241
ix. Ashadevi v. K. Shivraj., (1979) 1 SCC 222
x. Mehrunissa v. State of Maharashtra., (1981) 2 SCC 709
xi. Union of India v. Ranu Bhandari., (2008) 17 SCC 348
xii. Rajesh Gulati v. Govt. of NCT of Delhi., (2002) 7 SCC 129
xiii. Gimik Piotr v. State of T.N., (2010) 1 SCC 609
xiv. Yumman Ongbi Lembi Leima v. State of Manipur., (2012) 2 SCC 176
xv. Munagala Yadamma v. State of A.P., (2012) 2 SCC 386
xvi. Boris Sobotic Mikolic v. Union of India, 2018 SCC OnLine Del 9363.
xvii. Jagannath Misra v. State of Orissa, AIR 1966 SC 1140
xviii. Ananta Mukhi @ Ananta Hari v. State of West Bengal, (1972) 1 SCC
580
xix. V.C. Mohan v. Union of India., (2002) 3 SCC 451
xx. Pooja Batra v. Union of India., (2009) 5 SCC 296
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xxi. Tsering Dolkar v. Administrator, Union Territory of Delhi & Ors.,
(1987) 2 SCC 69
xxii. Hem Lall Bhandari v. State of Sikkim & Ors., (1987) 2 SCC 9
xxiii. Ram Manohar Lohiya v. State of Bihar & Anr., 1965 SCC OnLine SC
9.
xxiv. State of Punjab v. Sukhpal Singh., (1990) 1 SCC 35
xxv. D.K. Basu v. State of West Bengal., (1997) 1 SCC 416
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1 AND 2
12. Dr. B. Ramaswamy, ld. CGSC for Respondent No.1 and Respondent
No.2, i.e., Union of India and Joint Secretary (COFEPOSA), respectively,
submitted that firstly, the Petitioner’s husband, i.e., Detenu in the present case
is a habitual offender and he is a smuggler having local and international links.
Reference is made to the Impugned Detention Order to argue that for the past
20 years he has been continuously involved in smuggling activities and illegal
circulation of large quantum of black money in the economy. He further
submitted that a plain reading of the impugned Detention Order would show
the modus operandi adopted by the Detenu whereby large quantities of gold
and cash were recovered from the places which were raided by the Sponsoring
Authority on 5th March, 2024.
13. It is submitted that pursuant to the raid being conducted, statement of
persons found at the said places had been recorded which reflect that there is
a clear link to the Detenu. It is also submitted that the Detenu is involved in
overseas smuggling and even if the Detenu is released for a short period he
would be able to re-activate his entire network involved in the smuggling
activities. The impact of such a release would be quite significant for the
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country’s economy. It is further submitted that the allegation regarding the
recording of the statement of the Detenu under force and coercion is false and
baseless. Reliance has been placed on the judgment of Surjeet Singh
Chhabra v. Union of India and Ors., (1997) 1 SCC 508 wherein the Court
concluded that Custom Officials are not Police officers and the confession
retracted, is an admission and binds the Detenu.
14. Ld. Counsel for Respondents No. 1 and 2 also submitted that an Arrest
Memo was served to the Detenu at the time of his arrest and acknowledgement
for receiving the copy was taken while serving the said memo to him and the
same is mentioned in his Arrest Memo. There was a technical error while
generating Document Identification Number (for short ‘DIN’) on 06th March,
2024. As per circular No. 37/2019 dated 05th November, 2019 of Central
Board of Indirect Taxes and Customs (for short ‘CBIC’), post facto approval
was taken from the senior and the same has been taken on record and
thereafter the DIN was generated.
15. In respondence to the Petitioner’s allegations that the investigation is
incomplete, it is submitted by the ld. Counsel that while the investigation is
ongoing it does not mean that the Detenu is not involved in smuggling
activities. Further, it is submitted that lack of prosecution at this stage does
not necessarily indicate weakness in the evidence, but rather the complexity
and thoroughness of the investigation and the impugned Detention Order is
necessary even if the investigation is incomplete. Ld. Counsel also submits
that as per Section 124 read with Section 110(2) of the Customs Act, 1962 a
notice for the seizure of goods can be issued within six months of the seizure
which is extendable by 6 more months for reasons to be recorded in writing
by the Pr. Commissioner/Commissioner of Customs.
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16. It is further submitted that the Sponsoring Authority/Respondent No.3
approaching the ld. Sessions Court for cancellation of bail and the Detaining
Authority ‘s exercise of powers under COFEPOSA Act are two separate and
distinct proceedings with different objectives. The former seeks to revoke the
Detenu’s bail, while the latter aims to prevent the Detenu from engaging in
smuggling activities. The parallel proceedings do not render the Detention
Order impermissible, as the Detaining Authority’s powers are discretionary
and intended to address emergent situations.
17. Reference is made to the recent decision of the Supreme Court in
Ameena Begum v. State of Telangana & Ors., 2023 SCC OnLine SC 1106;
2023 INSC 788, [Ref. Para 15] where the Court holds clearly that detention
orders could be passed in anticipation or suspicion. Under such
circumstances, it is ld. Counsel’s submission that in the present case, the
anticipation is that the Detenu would engage in smuggling and he would also
indulge in illegal activities through the Petitioner and other third parties, who
are connected to him.
18. It is submitted that there is a direct link between the Detenu’s activities
and the impugned Detention Order, and the said link is still not broken. Lastly,
it is submitted that the Detenu and his wife i.e., the Petitioner did not
cooperate in the investigation.
19. Reference is also placed on the decision of the Kerala High Court in
Jamseena v. Union of India & Ors., 2021 SCC OnLine Ker 3572 [Ref. Pg.
20, Para 20) to argue that the proceedings for preventive detention under
COFEPOSA Act cannot be equated with those in a Court of law. The relevant
para is extracted hereunder:
“20. […] There cannot be a parallel between prosecution in a Court
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of law and a detention order under the COFEPOSA Act. One is a
punitive action whereas the other is a preventive act. In one case a
person is punished on proof of his guilt on a standard of proof beyond
reasonable doubt whereas in preventive detention a man is prevented
from doing something which is necessary for reasons mentioned in
Section 3 of the COFEPOSA Act to prevent. Applying the principles
of the Evidence Act is foreign to the jurisdiction exercised under the
COFEPOSA Act to make an order of preventive detention. In short,
none of the normal rules of criminal jurisprudence or the provisions
of the Evidence Act are attracted while invoking the provisions of the
COFEPOSA Act. No embargo can be placed on the material which a
detaining authority may consider and no artificial restriction can be
placed on the so-called analogy of the sections of the Evidence Act to
restrict the material which the administrative authority exercising
statutory powers of detention may consider. […]”
20. It is further submitted that the Petitioner has been involved over the
years in multiple illegal activities including drug trafficking. One cause of
concern which has been mentioned by the ld. Counsel is the fact that the
Detenu keeps changing his name. Further, it is stated that in 1997 the Detenu
was a suspect in another case under the COFEPOSA Act, and in the relevant
judgment of the High Court of Bombay passed in the said case titled Ms.
Annie Kitty Creado v. The State of Maharashtra 1997 ALL MR (Cri) 1322.
which was handed across in the Court, the name of the Detenu is mentioned
as Rahim Haroon Manoria @ Afzal Haroon Batatawala. It is argued that this
name was later changed by the Detenu as is evident from the show cause
notice dated 30th August, 2024, wherein, he is identified as Sameer Haroon
Merchant @ Afzal. The fact that the Detenu has changed his name over the
years has also not been disputed by the Petitioner.
21. Ld. Counsel has argued that the fact that the Detenu keeps changing his
names would also go to show that he is trying to hide his identity in some way
or the other. It is further submitted that the Detenu is involved in a completeSignature Not Verified
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supply chain of smuggled goods as also drugs and gold smuggling. The supply
chain is not merely national but also has international elements involved.
Detenu is stated to have a consistent criminal record. It is argued that the
investigation which has been completed in respect of a particular seizure may
not have any relevance as the impugned Detention Order is preventive in
nature.
22. Ld. Counsel submits that the question that is relevant for the Court in
such a case is whether the Detenu is likely to indulge in crime once again or
not. The facts stated in the show cause notice would clearly establish that the
network allegedly established by the Detenu for smuggling activity is vast, it
is argued that thus there is a clear propensity of the Detenu being involved
again in illegal and unlawful activities upon his release. Finally, it is submitted
that the Maharashtra State Board has already confirmed the detention of the
Detenu.
23. Further, reliance is placed by the ld. Counsel for Respondents No.1 and
2 upon the following decisions:
i) State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande, (2008) 3
SCC 613
ii) Ashok Kumar v. Delhi Administration & Ors., (1982) 2 SCC 403
iii) Union of India & Anr. v. Dimple Happy Dhakad, (2019) 20 SCC 609
iv) Union of India & Ors. v. Arvind Shergill & Anr., (2000) 7 SCC 601
v) Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409
vi) Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198
vii) Rutugna Arvindkumar Trivedi v. Union of India, 2020 SCC OnLine Guj
1030
viii) Prakash Chandra Mehta v. Commissioner and Secretary., Government
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of Kerala, AIR 1986 SC 687
ix) Madan Lal Anand v. Union of India, (1990) 1 SCC 81
x) State of Maharashtra vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC
613
xi) Naresh Kumar Goyal v. Union of India and Ors., (2005) 8 SCC 276
xi) State of Gujarat vs. Sunil Fulchand Shah, (1988) 1 SCC 600
xii) Surinder Kumar Khanna vs. DRI., (2018) 8 SCC 271
xiii) Rajendra Kumar Natvarlal Shah v. State of Gujarat & Ors., (I988) 3
SCC 153
xiv) Poolpandi & Ors. vs. Superintendent Central Excise & Ors., AIR 1992
SC 1795
xv) A.K. Roy vs. Union of India., (1982) 1 SCC 271
xvi) Kamleshkumar Ishwardas Patel vs. Union of India, (1995) 4 SCC 51
xvii) Union of India vs. Paul Manickam, (2003) 8 SCC 342
xviii) K.I. Pavunny v. Assistant Collector, (1997) 3 SCC 721SUBMISSIONS ON BEHALF OF RESPONDENT NO.3
24. Ld. Counsel appearing for the Sponsoring Authority/Respondent No.3
has submitted that pursuant to the seizure of gold, silver bars and currency
notes the Detenu and the other related person involved were informed
regarding disposal of the said goods as per the provisions of the Customs Act,
1962. Further, vide letters dated 27th March, 2024 and 28th March, 2024, one
Mr. Sameer Tandel (claimed to be adopted son of the Petitioner but he was
not legally adopted) had requested not to dispose of the seized silver bars and
the currency notes. Vide various summons dated 26th April, 2024, and 14th
May, 2024, the Detenu was asked to produce legal documents for the seizedSignature Not Verified
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goods but he has not submitted any legal documents till date.
25. Ld. Counsel also argued that the ld. Trial Court while allowing the bail
application of the Detenu, vide order dated 16.04.2024, failed to take into
account that the offence under Section 135(1)(a) of the Customs Act, 1962, is
a cognizable and non-bailable offence as per Section 104 of the said Act.
26. It is further submitted that Detaining Authority’s consideration of past
cases does not solely rely on time scale, but rather their relevance and bearing
on the Detenu’s likelihood of engaging in similar activities in the future.
27. It is further argued that the Detenu, despite not having a passport for 20
years, has been the mastermind of a gold smuggling syndicate and a key
member of a syndicate involved in drug trafficking. The conditions of the bail
such as surrender of passport (which he does not even possess) are not
sufficient to prevent the Detenu from engaging in prejudicial activities.
Further, despite getting a bail in the NDPS case in the year 2013 and the gold
smuggling case in the year 2017, the Detenu still managed to indulge in
smuggling activities. Evidently, his claim that bail conditions are sufficient to
hold him back from engaging in smuggling activities cannot be given any
weightage due to the aforesaid reasons. Further, all evidence suggests that the
Detenu had wilfully thrown away his mobile phones and 2 gold bars when the
DRI officers went for a search operation at his residence on 05th March, 2024.
Therefore, it can be said that the Detenu has a tendency of tampering with the
evidence and trying to mislead the investigation.
28. Ld. Counsel appearing for the Sponsoring Authority/Respondent No.3
had filed an additional affidavit dated 6th September, 2024 in terms of the
order dated 2nd September, 2024. As per the said additional affidavit, the
initial proposal for detention of the Detenu under COFEPOSA Act, was sent
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by the Sponsoring Authority on 12th April, 2024, while the Detenu was still
in judicial custody. The Detenu was released on bail by the ld. Trial Court
vide order dated 16th April, 2024 in R.A. 191 of 2024 pursuant to which an
updated proposal mentioning the release of the Detenu and the intention of
Sponsoring Authority to apply for cancellation of bail was submitted to the
Detaining Authority vide email dated 30th April, 2024. Further, he has handed
over a copy of the updated proposal which was presented on 1st May, 2024 to
the Screening Committee wherein at paragraph 29 there is a clear mention of
the fact that an appeal is being filed against the aforesaid bail order. After the
meeting on 1st May, 2024, the application for cancellation of bail was filed on
6th May, 2024 and the impugned Detention Order was passed on 9th May,
2024. Thus, it is argued that there was clear disclosure to the Detaining
Authority regarding the bail granted to the Detenu and the fact that
cancellation of the bail would be sought by the Sponsoring Authority.
29. Finally, he also updates the Court on the fact that the Maharashtra State
Advisory Board held its meeting on 5th July, 2024 and the report was sent to
the Central Government on 18th July, 2024. The Central Government
confirmed the detention order on 26th July, 2024 and finally the order was
issued on 30th July, 2024. It is thus his submission that there has been no
withholding of the relevant facts or documents from the Detaining Authority.
30. Reliance is placed by the ld. Counsel for Respondent No.3 on the
following judgments:
i) Poolpandi & Others v. Superintendent Central Excise & Others, AIR
1992 SC 1795
ii) Odut Ali Miah v. State of West Bengal, (1974) 4 SCC 129
iii) Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875
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iv) Ankit Ashok Jalan v. Union of India, (2020) 16 SCC 127
REJOINDER ON BEHALF OF THE PETITIONER
31. Ld. Counsel for the Petitioner, in rejoinder firstly submits that insofar
as the name of the Detenu is concerned, he is aware that after the Detenu was
released on bail in 2013 in Case No. NCB/AZU/CR-05/2003, he had changed
his name to Sameer Haroon Merchant. However, insofar as the other names
which are mentioned in the judgment of the Bombay High Court, namely,
Rahim Haroon Manoria is concerned, the Detenu had not changed his name,
however, the Detenu tried to travel on a ticket of Rahim Haroon Manoria
which had been supplied by some travel agent only for taking the benefit of
free tickets of airlines.
32. Ld. Counsel for the Petitioner highlights the fact that even in the bail
application filed on behalf of Detenu in R.A. 191 of 2024 before the ld.
ACMM, the proper three names of the Detenu have been disclosed and there
has been no intention to suppress any particular fact.
33. The core submission of ld. Counsel for the Petitioner is that if the
alternative law of the land is sufficient to address the grievance of the
Detaining Authority, preventive detention ought not to be invoked. He further
submitted that the provisions of the Customs Act, 1964 have also been
amended and there are sufficient measures under the said law that can be taken
even in respect of smuggling or evasion of duty which is the basis of the show
cause notice dated 30th August, 2024. It is submitted that preventive detention
is an exceptional provision which has to be used rarely and the same cannot
be used for every offense under the Customs Act or under other statutes.
Further, it is argued that the show cause notice was not itself placed before
the Detaining Authority. The fact that the filing of the appeal against the order
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granting bail to the Detenu has also not been placed before Detaining
Authority but only before the Screening Committee would itself show that
there is an infraction in the procedure. It is also submitted that only stale
material is referred to and relied upon by the Detaining Authority which
shows that there is no live link between the material and the detention order
which has been passed.
34. Reliance is placed upon the recent decision of the Hon’ble Supreme
Court in Jaseela Shaji v. Union of India & Ors., 2024 SCC OnLine SC 2496
where the Supreme Court has categorically held that the documents which are
relied upon by the Sponsoring Authority must be mandatorily supplied to the
Detenu, which in this case, it is argued has not happened. Finally, reliance is
placed upon the decision of Khaja Bilal Ahmed v. State of Telengana & Ors.,
(2020) 13 SCC 632 to argue that the reliance on stale material in fact shows
that there was no live material to support the order of detention.
ANALYSIS AND FINDINGS
35. Heard learned counsel for the parties and perused the record.
36. At the outset, it was submitted that the ordinary law of the land was
sufficient to deal with the Detenu. It was pointed out that the Detenu was
arrested on 06th March, 2024, after the alleged recoveries, and was granted
bail by the ld. ACMM on 16th April, 2024. Attention of this Court was drawn
to the order granting bail to the Detenu wherein the opposition of the
Respondent No.3/Sponsoring Authority have been recorded. It was submitted
that the opposition by the Sponsoring Authority/Respondent No. 3 were
similar to the grounds mentioned in the impugned Detention Order by
Respondent No.2 with regard to the apprehension of Detenu engaging in
prejudicial activity if released on bail. It was submitted that the ld. ACMM
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after recording the opposition of the Sponsoring Authority/Respondent No.3
passed the aforesaid order granting bail while observing that the apprehension
expressed on behalf of Respondent No.3 can be suitably addressed by
imposing conditions. Accordingly, it is submitted, that conditions had been
imposed on the Detenu by ld. ACMM which is sufficient to ensure that the
Detenu would not engage in any other further illegal activities and therefore,
the impugned Detention Order ought not to have been passed.
37. It was also the submission on behalf of ld. counsel for the Petitioner
that the Sponsoring Authority/Respondent No.3 had moved an application for
cancellation of bail before the ld. Sessions Court on 3rd May, 2024, which was
not placed before the Detaining Authority and therefore, the impugned
Detention Order also suffers from the vice of non-supply of vital documents.
It was further submitted that the said documents ought to have been placed
before the Detaining Authority before it passed the impugned Detention Order
dated 9th May, 2024 as the same would have effected the decision of the
Detaining Authority in one way or the other.
38. The impugned Detention Order is further challenged on the ground that
there is no live-link between the impugned Detention Order and the alleged
pre-judicial activity of the Detenu. It was submitted that the Detaining
Authority has referred to past cases of the Detenu. One of the cases referred
to is Case No. NCB/AZU/CR-05/2013. It is pointed out that in the said case
the Detenu was convicted and his conviction is now under challenge before
the Hon’ble Supreme Court in Crl.A. No. 000344/ 2013. It is further submitted
that the Detenu was in jail for 9 years and was released on bail by the Hon’ble
Supreme Court in September 2013. The second case referred to by the
Detaining Authority is with respect to the year 2017 in Case No.
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DRI/MZU/IRU/INT-62/2017 in which prosecution has not been initiated. In
view of the same it was urged that reliance could not have been placed on the
aforesaid two cases by the Detaining Authority. So far as the present case of
seizure is concerned the Detenu has already been granted bail while imposing
conditions as pointed out hereinabove. It was submitted by relying on the
aforesaid two old cases and ignoring the order granting bail to the Detenu, the
impugned Detention Order suffers from non-application of mind and ought to
be set aside.
39. Before adverting to the legal issues raised in the present petition the
following facts are duly noted:-
A) During the relevant period from 5th March, 2024 to 8th March, 2024, the
officers of the Sponsoring Authority/Respondent No.3, on a specific
intelligence being gathered and thereafter in furtherance of their
investigation recovered a 13.484 kg of smuggled gold along with
connected alleged sale proceeds and the same has been recorded in the
impugned Detention Order. Statements of various persons from whom
the said recovery was affected had been recorded under Section 108 of
the Customs Act, 1964 and the involvement of the Detenu has been
brought on record as a key player in arranging and handling the
smuggling of the foreign origin gold in India in a planned and
systematic manner.
B) The nature of recovery as reflected in the impugned detention Order is
not at one isolated place but at various locations reflecting the extent of
the alleged operation which was unearthed by the officers of the
Sponsoring Authority/Respondent No.3.
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C) Apart from his conviction under the NDPS Act, for which the Detenu
has served 9 years in jail and was released on bail by the Hon’ble
Supreme Court in September 2013, he was involved in smuggling of
foreign marked gold bars weighing 3995 gms valued at
Rs.1,06,09,741/- at CSI Airport, Mumbai on 12th May, 2017.
D) After being released on bail by the Hon’ble Supreme Court in
September, 2013, the Detenu officially changed his name from Afzal
Haroon Batatawala to Sameer Haroon Merchant. The Detenu was
arrested on 06th March, 2024 and was released on bail by the ld. ACMM
on 26th April, 2024. The impugned Detention Order was passed on 09th
May, 2024 and served on the Detenu on 14th May, 2024.
40. There is no dispute with regard to the legal principle, as argued by
learned counsel for the Petitioner, that if the ordinary law of the land is
sufficient then recourse to preventive detention should not ordinarily be
resorted to. However, it is also a settled principle of law that the order of
preventive detention can be passed even where the Detenu is facing
prosecution under the ordinary law of land. Each case would depend on its
own facts and circumstances and upon the subjective satisfaction of the
Detaining Authority. In the present case it has been strenuously argued that
the Detenu was arrested on 06th March, 2024 and was granted bail by the ld.
ACMM on 26th April, 2024 and the fact that the order granting bail had
imposed conditions on the Detenu, keeping in mind the apprehensions of the
Authority with respect to his future involvement in illegal activities was
sufficient and therefore there was no requirement of any order under the
COFEPOSA Act. The Hon’ble Supreme Court in Union of India v. Chaya
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Ghoshal, (2005) 10 SCC 97, while dealing with a similar situation under the
COFEPOSA Act, wherein the Detenu was released on bail on 11th September,
2002 and the detention order was passed in November 2002, the Hon’ble
Supreme Court while dealing with the aforesaid issue observed and held as
under:-
“8. Before dealing with rival submissions, it would be
appropriate to deal with the purpose and intent of preventive
detention. Preventive detention is an anticipatory measure
and does not relate to an offence, while the criminal
proceedings are to punish a person for an offence
committed by him. They are not parallel proceedings. The
object of the law of preventive detention is not punitive but
only preventive. It is resorted to when the executive is
convinced that such detention is necessary in order to
prevent the person detained from acting in a manner
prejudicial to certain objects which are specified by the law
concerned. The action of the executive in detaining a person
being only precautionary, normally the matter has
necessarily to be left to the discretion of the executive
authority. It is not practicable to lay down objective rules of
conduct in an exhaustive manner, the failure to conform to
which should lead to detention. The satisfaction of the
detaining authority, therefore, is considered to be of
primary importance, with great latitude in the exercise of its
discretion. The detaining authority may act on any material
and on any information that it may have before it. Such
material and information may merely afford basis for a
sufficiently strong suspicion to take action, but may not
satisfy the tests of legal proof on which alone a conviction
for offence will be tenable. The compulsions of the
primordial need to maintain order in society without which
the enjoyment of all rights, including the right to personal
liberty of citizens would lose all their meanings, provide the
justification for the laws of preventive detention. Laws that
provide for preventive detention posit that an individual’sSignature Not Verified
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conduct prejudicial to the maintenance of public order or to
the security of State or corroding financial base provides
grounds for satisfaction for a reasonable prognostication of
possible future manifestations of similar propensities on the
part of the offender. This jurisdiction has at times been even
called a jurisdiction of suspicion. The compulsions of the very
preservation of the values of freedom of democratic society
and of social order might compel a curtailment of individual
liberty. “To lose our country by a scrupulous adherence to
the written law”, said Thomas Jefferson “would be to lose
the law itself, with life, liberty and all those who are enjoying
with us, thus absurdly sacrificing the end to the needs.” This,
no doubt, is the theoretical jurisdictional justification for the
law enabling preventive detention. But the actual manner of
administration of the law of preventive detention is of utmost
importance. The law has to be justified by striking the right
balance between individual liberty on the one hand and the
needs of an orderly society on the other.
*** *** ***
15. In case of preventive detention no offence is proved, nor
any charge is formulated and the justification of such
detention is suspicion or reasonability and there is no
criminal conviction which can only be warranted by legal
evidence. Preventive justice requires an action to be taken to
prevent apprehended objectionable activities. (See R. v.
Halliday [1917 AC 260 : (1916-17) All ER Rep Ext 1284 :
169 ER 1252] and Kubic Darusz v. Union of India [(1990) 1
SCC 568 : 1990 SCC (Cri) 227 : AIR 1990 SC 605] .) But at
the same time, a person’s greatest of human freedoms i.e.
personal liberty is deprived, and, therefore, the laws of
preventive detention are strictly construed, and a meticulous
compliance with the procedural safeguard, however
technical, is mandatory. The compulsions of the primordial
need to maintain order in society, without which enjoyment
of all rights, including the right of personal liberty, would
lose all their meanings, are the true justifications for the laws
of preventive detention. This jurisdiction has been describedSignature Not Verified
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as a “jurisdiction of suspicion”, and the compulsions to
preserve the values of freedom of a democratic society and
social order sometimes merit the curtailment of individual
liberty. (See Ayya v. State of U.P. [(1989) 1 SCC 374 : 1989
SCC (Cri) 153 : AIR 1989 SC 364] ) To lose our country by
a scrupulous adherence to the written law, said Thomas
Jefferson, would be to lose the law, absurdly sacrificing the
end to the means. No law is an end itself and the curtailment
of liberty for reasons of State’s security and national
economic discipline as a necessary evil has to be
administered under strict constitutional restrictions. No carte
blanche is given to any organ of the State to be the sole
arbiter in such matters.
*** *** ***
23. So far as the finding of the High Court that there was
only one incident is really a conclusion based on erroneous
premises. It is not the number of acts which determine the
question as to whether detention is warranted. It is the
impact of the act, the factual position as highlighted goes to
show that the financial consequences were enormous and
ran into crores of rupees, as alleged by the detaining
authority. The High Court seems to have been swayed away
that there was only one incident and none after release on
bail. The approach was not certainly correct and the
judgment on that score also is vulnerable. At the cost of
repetition it may be said that it is not the number of acts
which is material, it is the impact and effect of the act which
is determinative. The High Court’s conclusions in this
regard are therefore not sustainable.”
(emphasis supplied)
41. Similarly, in G. Reddeiah v. Govt. of A. P., (2012) 2 SCC 389, Hon’ble
Supreme Court held as under:-
“11. The essential concept of preventive detention is that the
detention of a person is not to punish him for something he
has done but to prevent him from doing it. Even, as early asSignature Not Verified
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in 1975, a Constitution Bench of this Court considered the
procedures to be followed in view of Articles 19 and 21 of the
Constitution. In Haradhan Saha v. State of W.B. [(1975) 3
SCC 198 : 1974 SCC (Cri) 816] a Constitution Bench of this
Court, on going through the order of preventive detention
under the Maintenance of Internal Security Act, 1971 laid
down various principles which are as follows : (SCC p. 209,
para 34)
“34. … First, merely because a detenu is liable to be
tried in a criminal court for the commission of a
criminal offence or to be proceeded against for
preventing him from committing offences dealt with in
Chapter VIII of the Code of Criminal Procedure would
not by itself debar the Government from taking action
for his detention under the Act. Second, the fact that
the police arrests a person and later on enlarges him
on bail and initiates steps to prosecute him under the
Code of Criminal Procedure and even lodges a first
information report may be no bar against the District
Magistrate issuing an order under the preventive
detention. Third, where the person concerned is
actually in jail custody at the time when an order of
detention is passed against him and is not likely to be
released for a fair length of time, it may be possible to
contend that there could be no satisfaction on the part
of the detaining authority as to the likelihood of such a
person indulging in activities which would jeopardise
the security of the State or the public order. Fourth, the
mere circumstance that a detention order is passed
during the pendency of the prosecution will not violate
[sic] the order. Fifth, the order of detention is a
precautionary measure. It is based on a reasonable
prognosis of the future behaviour of a person based on
his past conduct in the light of the surrounding
circumstances.”
*** *** ***
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16. The incident relating to the procedure to be adopted in
case the detenu is already in custody has been dealt with in
several cases. In Union of India v. Paul Manickam [(2003) 8
SCC 342: 2004 SCC (Cri) 239] this Court has held as under:
(SCC pp. 352-53, para 14)
“14…. Where detention orders are passed in relation
to persons who are already in jail under some other
laws, the detaining authorities should apply their mind
and show their awareness in this regard in the grounds
of detention, the chances of release of such persons on
bail. The necessity of keeping such persons in detention
under the preventive detention laws has to be clearly
indicated. Subsisting custody of the detenu by itself
does not invalidate an order of his preventive
detention, and the decision in this regard must depend
on the facts of the particular case. Preventive detention
being necessary to prevent the detenu from acting in
any manner prejudicial to the security of the State or
to the maintenance of public order or economic
stability, etc. ordinarily, it is not needed when the
detenu is already in custody. The detaining authority
must show its awareness to the fact of subsisting
custody of the detenu and take that factor into account
while making the order. If the detaining authority is
reasonably satisfied with cogent materials that there is
likelihood of his release and in view of his antecedent
activities which are proximate in point of time, he must
be detained in order to prevent him from indulging in
such prejudicial activities, the detention order can be
validly made. Where the detention order in respect of
a person already in custody does not indicate that the
detenu was likely to be released on bail, the order
would be vitiated…. The point was gone into detail in
Kamarunnissa v. Union of India [(1991) 1 SCC 128:
1991 SCC (Cri) 88]. The principles were set out as
follows: even in the case of a person in custody, a
detention order can be validly passed: (1) if the
authority passing the order is aware of the fact that heSignature Not Verified
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is actually in custody: (2) if he has a reason to believe
on the basis of reliable material placed before him (a)
that there is a real possibility of his release on bail, and
(b) that on being released, he would in all probability
indulge in prejudicial activities; and (3) if it is felt
essential to detain him to prevent him from so doing. If
an order is passed after recording satisfaction in that
regard, the order would be valid. In the case at hand
the order of detention and grounds of detention show
an awareness of custody and/or a possibility of release
on bail.”
*** *** ***
22. In a matter of detention, the law is clear that as far as
subjective satisfaction is concerned, it should either be
reflected in the detention order or in the affidavit justifying
the detention order. Once the detaining authority is
subjectively satisfied about the various offences labelled
against the detenu, habituality in continuing the same,
difficult to control him under the normal circumstances, he is
free to pass an appropriate order under Section 3 of the 1986
Act by fulfilling the conditions stated therein. We have
already concluded that there is no infirmity either in the
reasonings of the detaining authority or the procedure
followed by it. We are also satisfied that the detenu was
afforded adequate opportunity at every stage and there is no
violation of any of the safeguards. In these circumstances, we
reject the contention raised by the learned Senior Counsel for
the appellant.”
42. In the facts and circumstances of the present case, applying the law laid
down by the Hon’ble Supreme Court in the aforesaid judgments as discussed
hereinabove, it is seen that the Detaining Authority has clearly noted that the
Detenu was released on bail on 16th April, 2024 on certain conditions. The
Detaining Authority was satisfied that on being released on bail there is every
likelihood that the Detenu would engage himself in the alleged prejudicial
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activities in view of his propensity to do so and therefore the need to
immobilize him by way of the present Detention Order. A perusal of the
impugned Detention Order further reflects the fact that the said satisfaction
was based on the Detenu running a well-organized smuggling network with
aid of his associates and having well-established mechanism in dealing with
foreign origin gold.
43. It is further pertinent to note that the Detenu was arrested on 06th March,
2024 and as per the record he moved a bail application on 1st April, 2024 and
the proposal for detention was moved on 12th April, 2024 which is proximate
in time. By way of additional affidavit filed by Respondent No. 3 it has come
on record that after the proposal for the Detenu’s detention was moved by the
Sponsoring Authority on 12th April, 2024, the Detenu was granted bail vide
order dated 16th April, 2024 passed by the ld. ACMM, the Sponsoring
Authority/Respondent No.3 sent an updated proposal on 30th April, 2024 to
the Detaining Authority placing the said bail order on record as well as its
intention to move for cancellation of bail. The aforesaid sequence of dates and
events clearly show that the Sponsoring Authority/Respondent No.3 sent a
proposal for detention soon after the Detenu having preferred an application
for bail. Looking at the facts of the present case and the voluminous record
relied by the Detaining Authority, the nexus between the date of the incident
and the passing of the impugned Detention Order cannot said to be delayed
or having no live-link.
44. Presuming, purely for the sake of argument, that previous two cases
being in 2013 and 2017 should not have been relied upon, even then it is a
settled legal proposition that a person can be detained on a single incident,
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The Hon’ble Supreme Court in Kirti Kumar Nirula v. State of Maharashtra,
(2005) 9 SCC 65, observed an held as under:-
“9. While considering the first argument of the learned
counsel, we must notice at the outset that there is no statutory
provision against detaining a person based on a single
incident provided the detaining authority had material before
it to come to a reasonable opinion that from the surrounding
circumstances coupled with the incident in question a
satisfaction as to the future illegal activities of the detenu
could be inferred. This is clear from the very judgment sought
to be relied upon by the learned counsel in the case
of Chowdarapu Raghunandan v. State of T.N. [(2002) 3 SCC
754 : 2002 SCC (Cri) 714 : JT (2002) 3 SC 110] wherein at
para 13 of the said judgment this Court held that in an
appropriate case, an inference could legitimately be drawn
even from a single incident of smuggling that the person may
indulge in smuggling activity but for that purpose
antecedents and nature of the activities carried out by a
person are required to be taken into consideration for
reaching justifiable satisfaction that the person was engaged
in smuggling and that with a view to prevent further
smuggling, it was necessary to detain him.
10. We will now consider the facts of this case to find out
whether a single incident in this case would be sufficient to
detain the appellant, keeping in mind the principle of law
enunciated by this Court in the above-referred case.
11. The fact that the detenu was arrested at the airport while
he was handing over foreign currency totalling US $ 70,000
with four mobile phones to the co-detenu Tilak Raj Sharma is
not denied. The explanation of the detenu is that he had
brought the same when he came into India from abroad and
had declared the same to the Customs Authorities as required
in law, hence, there is no illegality in his taking back this
money with him when he is going out of India. This
explanation cannot be accepted because of the fact that if he
had brought the money and he wanted to take the money outSignature Not Verified
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of India then there was no need for him to hand over this
money to Tilak Raj Sharma at the airport lounge. Therefore,
we will have to proceed on the basis that the detenu was
arrested when he handed over the foreign currency to Tilak
Raj Sharma at the airport. Now this incident being a single
incident, we will have to see whether there was any other
material before the detaining authority to come to a
legitimate satisfaction that the detenu in this case would
indulge in similar activities of smuggling currency in future
also. In this regard, it is seen from the material placed on
record that the detenu had a work permit to work in UAE but
on enquiry it was found that he was neither working in UAE
nor was a regular resident of UAE. From the material placed
before the detaining authority, it is noticed that this detenu
had travelled abroad a number of times and also he had made
it a practice to travel between Delhi-Bombay-Ahmedabad in
a particular manner, that is, he would take a domestic flight
of Indian Airlines from Delhi to Bombay and in Bombay he
would change over to an international flight which touches
Ahmedabad on the way. It is also seen from the records that
in almost all these flights the co-detenu Tilak Raj Sharma
used to be a co-passenger. This detenu had taken 16 such
flights during a short period of time and it is during one such
flight he was arrested, as stated above. Thus on the facts and
circumstances of this case, we are in agreement with the
finding of the High Court that the material placed before the
detaining authority coupled with the fact of arrest and seizure
of the foreign currency which is handed over by the detenu to
Tilak Raj Sharma are sufficient to form a reasonable
conclusion that the detenu is likely to indulge in similar
activities in future also. Therefore, we find no merit in this
argument.”
45. So far as the ground taken by the ld. counsel for the Petitioner that the
application seeking cancellation of bail was not placed before the Detaining
Authority is concerned, it is noted in the additional affidavit on behalf of
Sponsoring Authority/Respondent No. 3, that in the updated proposal sent to
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the Detaining Authority on 30th April, 2024, the intention to challenge the
order granting bail was mentioned; however, the actual application for
cancellation of bail was filed only on 06th May, 2024 and since the impugned
Detention Order was passed on 09th May, 2024, in the considered opinion of
this Court, the same would not amount to non-supply of a vital document
inasmuch as the same was not before the Detaining Authority. Further, filing
for cancellation of bail would not vitiate the impugned Detention Order as
same cannot be considered as an alternate to a Detention Order. The fact that
the Sponsoring Authority can move for cancellation of bail cannot be a ground
to quash the order of preventive detention as held by the hon’ble Supreme
Court in Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1,
The relevant paragraph is as under:-
“12. … (1) A detention order can validly be passed even in
the case of a person who is already in custody. In such a case,
it must appear from the grounds that the authority was aware
that the detenu was already in custody.
(2) When such awareness is there then it should further
appear from the grounds that there was enough material
necessitating the detention of the person in custody. This
aspect depends upon various considerations and facts and
circumstances of each case. If there is a possibility of his
being released and on being so released he is likely to indulge
in prejudicial activity then that would be one such compelling
necessity to pass the detention order. The order cannot be
quashed on the ground that the proper course for the
authority was to oppose the bail and that if bail is granted
notwithstanding such opposition the same can be
questioned before a higher court.
(3) If the detenu has moved for bail then the application and
the order thereon refusing bail even if not placed before the
detaining authority it does not amount to suppression ofSignature Not Verified
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relevant material. The question of non-application of mind
and satisfaction being impaired does not arise as long as the
detaining authority was aware of the fact that the detenu was
in actual custody.
(4) Accordingly the non-supply of the copies of bail
application or the order refusing bail to the detenu cannot
affect the detenu’s right of being afforded a reasonable
opportunity guaranteed under Article 22(5) when it is clear
that the authority has not relied or referred to the same.
(5) When the detaining authority has merely referred to them
in the narration of events and has not relied upon them,
failure to supply bail application and order refusing bail will
not cause any prejudice to the detenu in making an effective
representation. Only when the detaining authority has not
only referred to but also relied upon them in arriving at the
necessary satisfaction then failure to supply these documents,
may, in certain cases depending upon the facts and
circumstances amount to violation of Article 22(5) of the
Constitution of India. Whether in a given case the detaining
authority has casually or passingly referred to these
documents or also relied upon them depends upon the facts
and the grounds, which aspect can be examined by the court.
(6) In a case where detenu is released on bail and is at liberty
at the time of passing the order of detention, then the
detaining authority has to necessarily rely upon them as that
would be a vital ground for ordering detention. In such a case
the bail application and the order granting bail should
necessarily be placed before the authority and the copies
should also be supplied to the detenu.”
(emphasis supplied)
46. In Jaseela Shaji (supra) relied upon by the Ld. Counsel for the
Petitioner, Hon’ble Supreme Court noted that a document which was
extensively relied upon by the Detaining Authority was not supplied to the
Detenu which is not the case here.
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47. The impugned Detention Order was also challenged on the ground that
the same is vague as there is no clarity as to under which sub-clause of Section
3(1) of the COFEPOSA Act the said order was passed. It was contended that
in the impugned Detention Order all the possibilities mentioned in the said
provision have been referred to without exactly referring as to which
particular sub-clause was the case of the Detenu covered under. Reliance for
the same was placed on a judgment of the Hon’ble Supreme Court in
Jagannath Mishra (supra).
47.1 The relevant sub-clauses under Section 3(1) of the COFEPOSA Act are
as under:-
“(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping
smuggled goods, or
(iv) dealing in smuggled goods otherwise than by engaging
in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in
abetting the smuggling of goods,”
47.2 The relevant portion of the grounds of detention dealing with the
aforesaid activities is being reproduced at the sake of repetition hereinbelow:-
“7. In view of the facts and circumstances explained above, I have
no hesitation in concluding that you i.e. Shri Sameer Haroon
Marchant alias Afzal Haroon Batatawala have played a vital role
in the smuggling of foreign origin gold from Dubai. You i.e.
Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala
along with your accomplices have executed the plan in an
organized and repeated manner for the acts of smuggling.
Investigation done by the officers of DRI, Mumbai clearly
establishes your continued propensity and inclination to indulge
in the acts of smuggling in a planned manner and that unlessSignature Not Verified
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prevented, you i.e. Shri Sameer Haroon Marchant alias Afzal
Haroon Batatawala will continue to do so. Further considering
the nature and gravity of offence, and the organized way you i.e.
Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala
have engaged yourself in such prejudicial activities, your role
therein, and your high potentiality & propensity to indulge in
such prejudicial activities in future, I am satisfied that there is an
immediate need to prevent you from smuggling goods. Hence, you
i.e. Shri Sameer Haroon Marchant alias Afzal Haroon
Batatawala ought to be detained under the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974 with a view to preventing you from smuggling goods,
abetting smuggling of goods, engaging in transporting or
concealing or keeping smuggled goods, and dealing in
smuggled goods, in terms of Section 3(1) of the COFEPOSA
Act, 1974.
(emphasis supplied)
47.3 A perusal of the aforesaid would reflect that the order of detention has
referred only to sub-clauses (i), (ii), (iii) and (iv) of the Section 3(1) of the Act
and not to sub-clause (v). It is further noted that the Detaining Authority has
nowhere used “or” between the sub-clauses but it has only used “or” within
sub-clause (iii).
47.4 In the judgment relied upon by learned counsel appearing on behalf of
the Detenu, i.e., Jagannath Mishra (supra) Hon’ble Supreme Court was
dealing with the situation where the order of detention contains 6 grounds,
however, in the affidavit placed on record only two grounds were mentioned.
It was further noted by the Hon’ble Supreme Court that in the detention order
the Detaining Authority had used “or” between the grounds mentioned
therein, thus showing that the same was a copy of the relevant provisions of
the Act under which the detention order was made. In the present case as it
has already been pointed out hereinabove, the Detaining Authority had not
used “or” amongst the grounds mentioned in the said order and has clearlySignature Not Verified
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spelt out the facts and circumstances which bring the case of the Detenu under
the aforesaid sub-clauses of Section 3(1) of the COFEPOSA Act.
48. During the course of the hearing, ld. counsel for Respondent no. 1 and 2
has placed on record a judgment of the High Court of Bombay titled Ms.
Annie Kitty Creado v. The State of Maharashtra, 1997 ALL MR (Cri)
1322, and the attention of the Court was drawn to para 3 therein, the same is
as under:-
“3. This petition has been filed by the friend of the detenu,
the detenu ——–Rahim Haroon Manoria @ Atzal Haroon
Batatawala——– The order of detention was issued by the
respondent No. 2 under the provisions of the COFEPOSA
Act on 31st March 1994 which was served on the detenu on
4th March 1997. The order of detention is annexed as
Annexure ‘A’ to the petition while the grounds of detention
have been annexed as Annexure ‘B’ to the petition.”
49. The said order was shown to demonstrate that the Detenu had earlier
been detained under COFEPOSA Act which was set aside by High Court of
Bombay vide the aforesaid judgement dated 10th July, 1997. It was further
pointed out that in the said judgment the name of the Detenu was shown as
Rahim Haroon Manoria @ Afzal Haroon Batatawala and the name of the
Petitioner herein has been shown as Ms. Annie Kitty Creado. Thus, showing
that both the Petitioner and the Detenu are in the habit of changing their
names. In response to the same, an affidavit was filed by the Detenu in which
he had admitted the fact that he has used the name Rahim Haroon Manoria in
order to avail some benefit in air ticket. It was also admitted that the name of
the Petitioner earlier was Ms. Annie Kitty Creado. In the considered opinion
of this Court, the aforesaid circumstance was not before the Detaining
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Authority and, therefore, for the purpose of present petition the same cannot
be looked into.
CONCLUSION
50. In view of the aforesaid discussion and after going through the material
on record reflecting the activity of the Detenu and also the fact that the
procedure and statutory safeguards have been fully complied by the Detaining
Authority, in the considered view of this Court the impugned order of
detention dated 09th May, 2024 calls for no interference.
51. Accordingly, the present petition is dismissed and disposed of
accordingly.
52. Pending application(s), if any, also stands disposed of.
53. Judgment be uploaded on the website of this Court forthwith.
AMIT SHARMA, J.
PRATHIBA M. SINGH, J.
OCTOBER 29, 2024/sn
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