Quashed

Piyush Naulakha S/O Sh. Shri Chand Naulakha v. Union of India

Rajasthan HC1 May 2025HC/22/2025

Case brief

AI extract

What is this about?

In a habeas corpus petition challenging a preventive detention order under COFEPOSA, the High Court quashed the order due to an unexplained delay. The Court held that the appropriate government acted negligently by waiting for the detaining authority's decision before transmitting representations and comments to itself. Citing the constitutional mandate for prompt consideration under Article 22(5), the Court ruled that the detaining authority and the appropriate government operate independently and that any such delay renders the detention order unsustainable.

What did the court decide?

Habeas corpus petition allowed; detention order dated 08.10.2024 quashed and set aside; petitioner directed to be released forthwith, unless detention is warranted in another case.

Piyush Naulakha S/O Sh. Shri Chand Naulakha Vs… — Criminal Trial and Appeal | Rajasthan HC (2025)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Habeas Corpus Petition No. 22/2025

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Piyush Naulakha S/o Sh. Shri Chand Naulakha, Aged About 46 Years, R/o D-001, Jewel of India, Malviya Nagar, Jaipur, Rajasthan At Present Confined In Central Jail Jaipur Through His Wife Deepika Naulakha, W/o Sh. Piyush Naulakha, Age About 45 Years, R/o D-001, Jewel of India, Malviya Nagar, Jaipur, Rajasthan.

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----Petitioner

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Versus

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Union of India, Through Ministry of Finance, Department of Revenue Central Economic Intelligence Bureau, COFEPOSA Unit, 6th Floor, B Wing, Janpath Bhawan, Janpath. New Delhi

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----Respondent

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For Petitioner(s)	:	Mr. Vikram Chaudhri, Sr. Adv. with Mr. H.V. Nandwana Mr. Rishi Sehgal Mr. Keshavam Chaudhri Mr. Y.V. Nandwana Mr. Prem Chand Sharma Mr. G.V. Chauhan
For Respondent(s)	:	Mr. R.D. Rastogi, Addl. Solicitor General with Mr. C.S. Sinha, CGPC Ms. Priyansha Gupta Mr. Yathartha Asopa
		Mr. Kinshuk Jain, Senior Standing Counsel for Customs

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HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE ASHUTOSH KUMAR

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Judgment / Order

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ORDER RESERVED ON : : 22/04/2025 ORDER PRONOUNCED ON : : 01/05/2025

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PER HON’BLE MAHENDAR KUMAR GOYAL, J.

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Initially, arguments were heard and concluded on

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21.02.2025 and the judgement was reserved. However, during the course of dictation, it transpired that the copy of the letter dated 13.11.2024 issued by the Government of India through Ministry of Finance addressed to the Deputy Secretary, Home Department, Government of Rajasthan, submitted by the petitioner at the time of oral submissions, was not part of the pleadings/record and it could have some bearing on the issue. In view thereof, the matter was listed on 11.03.2025 under the category “to be mentioned”. On that day, the learned senior counsel for the petitioner prayed for time to file an additional affidavit incorporating the aforesaid letter. Thereafter, the additional affidavits and counter affidavits were filed by the respective parties. Learned counsels made their submissions on the letter dated 13.11.2024 as also on the aspect of delay in deciding the representations. The arguments were concluded on 22.04.2025 and the judgement was reserved.

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This habeas corpus petition under Article 226 of the Constitution of India is filed assailing the legality and validity of the order dated 08.10.2024 passed by the Joint Secretary to the Government of India through Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, COFEPOSA Wing (for brevity-detaining authority’) under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short-COFEPOSA Act’) whereby, the petitioner has been detained and kept in Central Jail, Jaipur.

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Shorn of unnecessary details, the relevant facts in brief are that on the basis of complaints dated 12.10.2021 and 09.11.2021

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submitted by UCO Bank Branch at Vishakhapatnam and the UCO Bank Branch at Johri Bazar, Jaipur respectively, a case no.CUS/ICFS/MISC/613/2021-Prev-O/o Commr-Cus-Prev-Jodhpur was registered by the Customs Preventive Commissionerate, Jodhpur Headquarters at Jaipur alleging fraudulent bank remittances from India to offshore firms based in Hongkong, Singapore and UAE against alleged import of digital services/IT services whereas, no services were actually imported rather, the remittances were used for funding smuggling of gold items and other precious stones. During the course of investigation, a Look Out Circular (LOC) dated 19.07.2024 was issued against the petitioner. On 22.07.2024, he was de-boarded from a flight at Jaipur Airport while travelling to Dubai and was arrested. A prosecution complaint for the offences under Section 132 and 135 of the Customs Act, 1962 (for short- `the Act of 1962’) was filed against the petitioner on 19.09.2024. On 08.10.2024, a preventive detention order was passed against him under Section 3(1) of the COFEPOSA Act. Vide letter even dated, the detaining authority communicated to the petitioner the grounds of detention. He was granted benefit of bail by this Court vide order dated 16.10.2024. The petitioner as also his wife Smt. Deepika Naulakha submitted their representations for revoking of detention order to the prescribed authorities which came to be rejected.

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During pendency of the writ petition, the Advisory Board constituted under Section 8 of the COFEPOSA Act forwarded its opinion to the Central Government whereupon, vide order dated 07.01.2025, it confirmed the detention order dated 08.10.2024

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directing detention of the petitioner for a period of one year from the date of his detention i.e. 09.10.2024.

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The order of detention is assailed on the grounds including that it is laced with mala fide to nullify the order extending benefit

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of bail to him by this Court; is based on non-existing/arbitrary/illegal grounds as also on his statement recorded under coercion which later on, was retracted by him. It is, therefore, prayed in the habeas corpus petition that the order dated 08.10.2024 be quashed and set aside and the respondent be directed to release the petitioner immediately from illegal detention.

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The respondent, in its reply, raised a preliminary objection as to the maintainability of the habeas corpus petition as premature having been filed without waiting for opinion of the Advisory Board.

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On merit, it is stated that the order dated 08.10.2024 has been passed in conformity with the provisions contained under the COFEPOSA Act and there has been infraction of neither any statutory provision nor, the constitutional provision. It is averred that from the facts, circumstances, findings and corroborative evidence gathered during the course of investigation, it was found that the petitioner has an innate propensity to devise ways and means for arranging, setting up, running of entities for receiving overseas remittances from India against contrived imports. Considering the frequency and quantum of illegal remittances in an organised manner in which the petitioner played a key role, the order of preventive detention is clamped upon him. It is, therefore, prayed that the habeas corpus petition be dismissed.

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The petitioner, through an additional affidavit dated 21.01.2025 filed through his wife, submitted that the detaining authority has relied upon the statement of co-accused Ashish Jain recorded under Section 108 of the Act of 1962 while passing the order impugned oblivious of the fact that later on, it was retracted by him vide letter dated 22.09.2024 which has vitiated the detention order. It is averred that the respondent did not appreciate that the petitioner has also retracted his statement(s) recorded under Section 108 albeit with delay on account of his illness. The detention order has further been assailed on the ground that since he was already in custody and ordinary law of the land was sufficient to take care of the situation, recourse to the preventive detention is not tenable.

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It is stated that there was inordinate delay in deciding the representations submitted by him and his wife. Validity of the detention order was also assailed on the ground of inordinate and unexplained delay of about three years in passing it from the time of his alleged involvement in the illegal activities. It is averred that the petitioner was not supplied with all the documents referred to and relied upon by the detaining authority while passing the impugned order dated 08.10.2024 and some of the documents supplied along with grounds of detention were illegible impairing his fundamental right to make effective representation. It is also stated that although, the panchnama relied upon by the detaining authority refers to as many as 186 documents but, none of the documents was supplied to him along with the grounds of detention jeopardizing his right of representation.

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The respondent, in its counter affidavit dated 30.01.2025, submitted that since, the order dated 07.01.2025 passed by the appropriate government under Section 10 of the COFEPOSA Act confirming the detention order is not challenged by the petitioner, the petition deserves to be dismissed on this count alone. It is stated that no retraction of the statement made by Ashish Jain was received by the sponsoring authority till the date of issuance of the subject detention order. Qua retraction of the statement(s) made by the petitioner, it is stated that it was done as an afterthought after four months from the date of making the voluntary statements under Section 108, which renders it of no consequence. It is also stated that all the documents relied upon by the detaining authority for passing the detention order were supplied to the petitioner. With regard to allegation of some of the documents being illegible, it is averred that this allegation is an afterthought inasmuch as no such plea was taken in any of the representations filed either by him or, by his wife against the detention order.

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Replying to the preliminary objections raised by the learned counsel for the respondent as to maintainability of the habeas corpus for want of challenge to the confirmation order dated 07.01.2025, learned senior counsel for the petitioner Shri Vikram Chaudhri submitted that when a preventive detention order is put to challenge, the strict rules of pleadings do not apply and it is for the respondent to justify the order in a court of law. He submits that since, opinion of Advisory Board is confidential in nature and is not open to the judicial review, the confirmation order passed by the Central Government based thereupon is not required to be

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assailed inasmuch as it does not take away the challenge to the detention order or the continuous detention. He, in this regard, relied on the judgement in the cases of Icchu Devi Choraria vs. Union of India & Ors.-(1980) 4 SCC 531, Kamlesh Kumar Ishwardas Patel vs. Union of India & Ors.-(1995) 4 SCC 51, Tsering Dolkar vs Admin. UT of Delhi-(1987) 2 SCC 69, Hem Lall Bhandari vs. State of Sikkim & Ors.-(1987) 2 SCC 9 and Ram Manohar Lohiyan vs. State of Bihar & Anr.-1966 Criminal Law Journal 608.

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Shri Chaudhri, inviting attention of this Court towards the contents of the letter dated 08.10.2024 conveying the grounds of detention, submits that investigation commenced with receipt of information from the UCO Bank Vishakhapatnam Branch and Jaipur Branch vide letters dated 12.10.2021 and 09.11.2021 respectively, showing involvement of M/s. D.P. Designs Ltd. as well, a company of the petitioner; but, the LOC was issued against him as late as in July, 2024 and the detention order under Section 3 was passed in October, 2024, i.e., with an unexplained and inordinate delay of about three years, which is fatal. He submits that such long delay has snapped the live link in between the alleged illegal activities and the need of preventive detention. Learned senior counsel submits that the respondent has miserably failed to explain the delay either in its reply, or in the counter affidavit. To buttress his submission, he relies upon the judgement in the cases of Rajinder Arora vs. Union of India-(2006) 4 SCC 796 and Mohd. Nashruddin vs. Union of India-2021 SCC OnLine Del 4017.

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The third limb of the submissions of learned senior counsel for the petitioner is that although, the confession of Ashish Jain was considered by the detaining authority while passing the impugned order; but, his retraction made before the court concerned was not placed before the detaining authority in absence whereof, the impugned order stands vitiated. Elaborating his submission and drawing attention of this Court towards the facts and circumstances referred to and relied upon by the detaining authority in the grounds of detention, Shri Chaudhri submits that the detaining authority has relied upon the confessional statement made by Ashish Jain qua him; but, the sponsoring authority failed to put before the detaining authority the retraction made by Ashish Jain before the concerned Court through an application dated 22.09.2024. Having invited attention of this Court towards the counter affidavit filed by the respondent, he submitted that therein, this omission has been defended stating that since, no retraction of statement by Ashish Jain was received by the sponsoring authority till the date of issuance of the subject detention order, there was no occasion to place the same before the detaining authority. He submitted that however, the law enjoins a duty upon the sponsoring authority to collect and place all the relevant material for consideration of the detaining authority which could influence its subjective satisfaction and an omission to do so, vitiates the detention order. In support of his submission, learned senior counsel relied upon the judgement in the cases of Smt. Elsy George vs. Union of India & Ors.-2002 Criminal Law Journal 540, Union of India & Ors. vs. Manoharlal Narang-(1987) 2 SCC 241, Ayya @ Ayub vs State of

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U.P.-(1989) 1 SCC 374, Ahmed Nisar vs. State of Tamil Nadu(1999) 8 SCC 473, Deepak Bajaj vs. State of Maharashtra-(2008) 16 SCC 14, Adishwar Jain vs. Union of India–(2006) 11 SCC 339, A. Sowkath Ali vs. Union of India-(2000) 7 SCC 148 and Union of India vs. Ranu Bhandari-(2008) 17 SCC 348.

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Shri Vikram Chaudhri urged that the subject detention order has been issued for a wrong purpose, i.e., it being punitive in nature and not preventive as the petitioner was already in custody when it was passed and observation of the detaining authority that there was likelihood of his release, was mere his ipse dixit. Advancing his submission, he contended that pursuant to LOC dated 09.02.2024, he was arrested on 22.07.2024 and was still in custody when the subject detention order was passed on 08.10.2024. Learned senior counsel submits that although, in the order dated 08.10.2024, it is observed that there is a possibility of his release from judicial custody; but, it is not based on any empirical data. He submits that it is a well settled legal principle that if a person is already in custody and there is no eminent possibility of his release, the power of preventive detention should not be resorted to and observation of the detaining authority as to such possibility of release, must be based on relevant consideration. He draws support from the precedential law in the cases of Binod Singh vs. District Magistrate, Dhanbad, Bihar & Ors.-(1986) 4 SCC 416 and A. Geetha vs. State of T.N.-(2006) 7 SCC 603.

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Learned senior counsel for the petitioner canvassed that the investigation was inconclusive and unconcluded when the subject detention order was passed which renders it bad in law. He, in this

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regard, relies upon a judgement of Hon’ble Supreme Court in the case of Pooja Batra vs. Union of India-(2009) 5 SCC 296.

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Next, Shri Vikram Chaudhri contended that the nonconsideration, delay in consideration and inconsistent stand of the respondent in deciding the representations filed by the petitioner as also by his wife has resulted into violation of his precious fundamental right guaranteed under Article 22(5) of the Constitution of India. He submitted that there was delay of more than 12 days in deciding the representation by the detaining authority and no reason is offered by the respondent to explain this inordinate delay. He further submits that similarly, the period of 16 days taken by the Central Government for deciding the representation has remained unexplained. Advancing his submissions, learned senior counsel submitted that on the one hand, the Government of India has conveyed to the Home Department, Government of Rajasthan, vide letter dated 13.11.2024, that his representation would be decided after receipt of the opinion of the Advisory Board in view of the judgement of Hon’ble Supreme Court of India in the case of Ankit Ashok Jalan vs. Union of India & Ors.-(2020) 16 SCC 127 whereas, as per the memorandum dated 04.11.2024 communicated to him by the Deputy Secretary to the Government of India, it was rejected. He submits that in any case, no order was passed on his representation while confirming the detention order vide order dated 07.01.2025 which flies in the face of the dictum laid down in the case of Ankit Ashok Jalan (supra). To buttress his submissions, the learned senior counsel relied upon the judgement in the cases of Pabitra N. Rana vs. Union of India & Ors.-(1980) 2 SCC 338,

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Saleh Mohammed vs. Union of India & Ors.-(1980) 4 SCC 428, Icchu Devi Choraria vs. Union of India & Ors.-(1980) 4 SCC 531, Sardar Kashmir Singh vs. Union of India & Ors.-(1981) Supp SCC 55, Vijay Kumar vs. State of Jammu & Kashmir & Ors.-(1982) 2 SCC 43, Raj Kishore Prasad vs. State of Bihar & Ors.-(1982) 3 SCC 10, Aslam Ahmed Zahire Ahmed Shaik vs Union of India & Ors.(1989) 3 SCC 277, Rashid Kapadia vs. Medha Gadgil-(2012) 11 SCC 745 and Mahesh Kumar Chauhan @ Banti vs. Union of India & Ors.-(1990) 3 SCC 148.

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Attacking the validity of the detention order, learned senior counsel for the petitioner submitted that there is variance in the purpose mentioned therein vis-a-vis the grounds relied upon in support thereof. He submits that while, the purpose of detention postulated in the order dated 08.10.2024 is to prevent the petitioner from acting in a manner prejudicial to the conservation of foreign exchange and from abetting the smuggling of goods in future whereas, in the grounds of detention, it is observed that he is indulged in smuggling of gold, diamond, precious stones and other goods, plays a key role and has been successful in smuggling to a large scale. He submits that it reflects that the purpose of clamping the order of detention is not supported by the grounds rendering the order illegal and void ab initio. In this regard, he relies upon the judgement in the cases of Vijay Kumar Dharna vs. Union of India-(1990) 1 SCC 606 and State of Punjab vs. Sukhpal Singh-(1990) 1 SCC 35.

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Next, Shri Chaudhri submitted that all the documents referred to and relied upon by the detaining authority in the detention order to arrive at his subjective satisfaction, have not

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been supplied to him. He, making special reference to the panchnama dated 22.07.2024 mentioned at S.Nos.9, 10 and 11 of the list of RUDs, would submit that none of the documents, part of the panchnama, were supplied. He also urged that various documents referred to and relied upon in the grounds of detention were also not supplied. Learned senior counsel further submitted that some of the documents supplied were not legible, adversely affecting his right of effective representation. He, in this regard, relies upon the judgement of the Hon'ble Supreme Court in the cases of Kirit Kumar Chaman Lal Kundaliya vs. Union of India(1981) 2 SCC 436, M. Ahamedkutty vs. Union of India-(1990) 2 SCC 1, Mehrunissa vs. State of Maharashtra-(1981) 2 SCC 709 and Union of India vs. Ranu Bhandari-(2008) 17 SCC 348.

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Inviting attention of this Court towards the letter dated 13.11.2024, learned senior counsel for the petitioner submitted that on the one hand, the Government of India has communicated to the Home Department, Government of Rajasthan that the representation dated nil of the detenue and the similar representation dated 16.12.2024 of Smt. Deepika Naulakha, his wife, have been dealt with as per judgement dated 04.03.2020 passed by the Hon’ble Supreme Court in the case of Ankit Ashok Jalan vs. Union of India & Ors.-(2020) 16 SCC 127 wherein, the Hon’ble Supreme Court has clarified and held that it would be proper for the appropriate government to wait till the report was received from the Advisory Board, while at the same time, especially empowered officer who had acted as the detaining authority would be obliged to consider the representation with utmost expedition; on the other hand, in the same breath, it is

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stated that the representation addressed to the Director General, CEIB was disposed of on behalf of the Central Government vide memo dated 04.11.2024 as per the judgement in the aforesaid case. He canvassed that while deciding to wait for report of the Advisory Board; but, acting against it, the Central Government dismissed the representations on 04.11.2024 itself, the day the matter was referred to the Advisory Board. Referring to and relying upon the judgement in the case of Ankit Ashok Jalan (supra), Shri Chaudhri submitted that acting contrary to the dictum laid down in the aforesaid case, the respondents have dismissed the representations without waiting for the opinion of the Advisory Board which is not permissible. He submits that the detention order deserves to be quashed and set aside on this ground alone.

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Learned senior counsel for the petitioner further submitted that law enjoins a duty upon the detaining authority as well as on the appropriate government to consider and decide the representation(s) filed against the detention order with promptitude and does not brook any delay. He submits that the representation submitted by the petitioner addressed inter alia to the detaining authority and the Central Government was received in the office of the respondents on 18.10.2024; but, the detaining authority decided the same as late as on 30.10.2024 and the appropriate government with more delay i.e. on 04.11.2024 without any plausible explanation offered by the respondents for this inordinate delay which alone is sufficient to warrant quashing of the detention order. Shri Chaudhri further submits that similarly, the representation submitted by the petitioner’s wife was

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received in the office of the respondents on 21.10.2024; but, again, there was delay of about 9 days and 13 days respectively in its disposal by the detaining authority and the appropriate government respectively which is fatal to the validity of the detention order. He, in support of his submissions, relies upon the judgements of Hon’ble Supreme Court in the cases of Pabitra N. Rana vs. Union of India & Ors.-(1980) 2 SCC 338, Shri Saleh Mohammad vs. Union of India & Ors.-(1980) 4 SCC 428, Sardar Kashmir Singh vs. Union of India & Ors.-1981 (Supp) SCC 55, Vijay Kumar vs. State of Jammu & Kashmir & Ors.-(1982) 2 SCC 43, Raj Kishore Prasad vs State of Bihar & Ors.-(1982) 3 SCC 10 and Jaseela Shaji vs. Union of India & Ors.-(2024) 9 SCC 53.

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Lastly, the learned senior counsel urged that the subject preventive detention order is liable to be quashed and set aside on the ground of discrimination. He submits that while, as per the prosecution complaint, there are total 10 accused persons including the petitioner with far more serious accusations against the principal accused namely Om Prakash Vanjani, Ravindra Kumar, CA and others; however, only he has been subjected to the order of preventive detention violating the well settled legal principle that the preventive detention power has to be exercised with due care and caution and cannot be used arbitrarily for motivated and vexatious considerations. He submits that the Hon’ble Supreme Court has, in the case of Pramod Singla vs. Union of India-(2023) 2 SCR 793, held that the principle of parity is squarely applicable in this case and since, another co-detenue in the identical circumstance has already been granted the relief

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quashing the detention order against him, the same relief should be extended to another similarly placed detenue.

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He, therefore, prays that the habeas corpus petition be allowed, the subject preventive detention order dated 08.10.2024 be quashed and immediate release of the petitioner be directed.

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Per contra, Shri R.D. Rastogi, learned Additional Solicitor General of India for the respondents, disputing and refuting the submissions made by the learned senior counsel for the petitioner and supporting the preventive detention order dated 08.10.2024, would submit that since the confirmation order dated 07.01.2025 passed by the appropriate government under Section 10 of the COFEPOSA Act is not assailed, this petition is not maintainable. On the strength of the precedential law as laid down in the cases of State of Punjab vs. Sukhpal Singh-(1990) 1 SCC 35, Union of India vs. Arvind Shergill-(2000) 7 SCC 601 and Vinod Lunia vs. State of Rajasthan-1994 (2) Crimes 704, learned counsel submits that scope of interference in the order of preventive detention is very narrow and this Court does not sit as an appellate authority over such order. He submits that this Court is required only to examine as to whether the procedure prescribed under the Constitution of India and the provisions of COFEPOSA Act has been followed or not and it cannot examine the sufficiency of the grounds of detention for recording the subjective satisfaction of the authority.

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Referring to the relevant provisions of Article 22 of the Constitution of India and scheme of the COFEPOSA Act, learned counsel submitted that there has been no infraction of either any

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constitutional or, the statutory provision before clamping the preventive detention order against the petitioner.

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Shri Rastogi further submits that it is apparent from the letter dated 08.10.2024 that all the documents relied upon by the detaining authority were supplied to the petitioner to enable him to exercise his right of making effective representation. He asserts that none of the documents not supplied to the detenue has been relied upon by the authority while passing the order dated 08.10.2024. With regard to the allegations of supply of illegible documents, learned counsel, inviting attention of this Court towards the representations filed by the petitioner and his wife, would submit that the same are bereft of any such averment meaning thereby; this plea has been raised as an afterthought and is without any substance. He submits that even otherwise, there is no material on record to substantiate this submission. To buttress his submissions, learned ASG relied upon the judgement in the cases of Vinod Lunia vs. State of Rajasthan (supra), Syed Farooq Mohammad vs. Union of India & Anr.–(1990) 3 SCC 537, Madan Lal Anand Etc. vs. Union of India & Ors.-(1990) 1 SCC 81 and Jaseela Shaji Ji vs. Union of India-(2024) 9 SCC 53.

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Learned ASG canvassed that even if the illegal activities of a person are subject to ordinary law of land, there is no bar in passing the order of preventive detention, if warranted. He submitted that while, object of the prosecution is to punish the person for an offence committed by him in past, the object of the preventive detention order is to curb the reasonable possibility/probability of committing any prejudicial activities by the detenue in future and such proceedings cannot be said to be

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parallel proceedings which cannot run concurrently. To buttress his submission, he relied upon the judgment of the Hon’ble Supreme Court in the cases of State of Punjab vs. Sukhpal Singh-(1990) 1 SCC 35 and Sasti Chowdhary vs. State of West Bengal-(1972) 3 SCC 826.

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Refuting the submission made by the learned senior counsel for the petitioner that the preventive detention order suffers from the vice of delay, Shri Rastogi submits that the sponsoring authority, from its sources and investigation, came to know that the petitioner has created different overseas firms/companies which used to get inward remittances of funds from various firms situated in India in the name of digital services/online services whereas, as a matter of fact, there was no corresponding import. He submitted that the transaction of the year 2021, as referred by Shri Chaudhri, was not the solitary transaction; rather, details of other numerous transactions, as unearthed during the course of investigation, revealed that the petitioner was more actively carrying out prejudicial activities in the years 2023 and 2024 causing loss to the conservation of foreign exchange and played a key role by creating a syndicate to facilitate remittance of funds and foreign currencies in a planned manner to the detriment of the economic security of the country. Since, such tendency and innate propensity of the petitioner increased considerably in the years 2023-2024 which reflected consistency of activities on regular interval, the sponsoring authority sent a proposal on 23.09.2024 for his preventive detention to the office of detaining authority which was received on 24.09.2024. Thereafter, the proposal was placed before a high level screening committee

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consisting of the Senior Officers of the Government of India which, in its meeting dated 03.10.2024, on meticulous examination of the material on record, was of the view that looking to the illegal activities of the petitioner in last recent period, action should be taken against him whereafter, vide its decision dated 08.10.2024, the detaining authority clamped the detention order. Shri Rastogi submitted that in view thereof, it cannot be said that there was no proximate and/or live nexus between the period of incident and the date of passing the detention order. He, in this regard, relied upon the judgement in the cases of Licil Antony vs. State of Kerala-(2014) 11 SCC 326, Pooja Batra vs. Union of India-(2009) 5 SCC 296, Vinod Lunia vs. State of Rajasthan-1994 (2) Crimes 704 and Kamarunnissa vs. Union of India-(1991) 1 SCC 128.

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Controverting the submission of learned senior counsel for the petitioner, learned ASG submitted that the detention order can very well be passed even if the detenue is already in judicial custody. He submitted that the order impugned reflects application of mind by the detaining authority on the fact that the petitioner was already in judicial custody when the detention order was passed recording his satisfaction that there is a possibility of his release on bail and on being so, he was likely to continue to indulge in the prejudicial activities. He, in this regard, relied upon the judgement in the cases of Union of India vs. Ankit Ashok Jalan-(2020) 16 SCC 185, Union of India vs. Dimple Happy Dhakad-(2019) 20 SCC 609, Kamarunnissa vs. Union of India(1991) 1 SCC 128, Vijay Kumar vs. Union of India-(1988) 2 SCC 57 and T.P. Moideen Koya vs. Govt. of Kereiaq-(2004) 8 SCC 106.

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With regard to submission of learned senior counsel for the petitioner qua non-consideration of the retraction of the statement

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by the co-accused Ashish Jain, learned ASG submitted that the sponsoring authority was unaware of it. He submits that even otherwise, its non-consideration does not adversely affect the subjective satisfaction of the detaining authority and the order of preventive detention cannot be said to be vitiated only on this ground as it is based on other grounds as well. He, in this regard, relied upon Section 5A of the COFEPOSA Act as also the judgement of the Hon’ble Supreme Court in the case of Union of India vs. Ankit Ashok Jhalan-(2020) 16 SCC 185.

¶101

Shri R.D. Rastogi, learned ASG submits that neither the petitioner has been subjected to hostile discrimination qua other co-accused nor, the subject detention order can be quashed on this count. He submits that the grounds of detention contained in the letter dated 04.10.2024 reveal that the petitioner was kingpin of the syndicate and being main facilitator for prejudicial activities to the detriment of the economic security of the country, he has rightly been meted with the order of preventive detention.

¶102

Learned Additional Solicitor General of India urged that the judgment of the Hon’ble Supreme Court of India in the case of Ankit Ashok Jalan (supra) did not mandate the appropriate government to wait till decision of the Advisory Board for deciding the representation submitted by the detenue/relative in all the eventualities. Shri Rastogi contends that the aforesaid judgement relies upon a Constitution Bench judgment in the case of K.M. Abdulla Kunhi & B.L. Abdul Khader vs. Union of India & Ors., State of Karnataka & Ors.-(1991) 1 SCC 476 wherein, it was held that if the representation is received by the appropriate government before the case is referred to the Advisory Board and there is time to decide the same before referring the case to the Advisory

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Board, the Government is under an obligation to act with promptitude and to decide the same. Inviting attention of this Court towards the contents of the additional affidavit dated 16.4.2025 filed by Shri Sunil Bareja, the Deputy Secretary to the Government of India, Central Economic Intelligence Bureau, Ministry of Finance, he would submit that since the appropriate government had sufficient time to decide the representation submitted by the petitioner as also by his wife, before the matter was referred to the Advisory Board under Section 8 of the Act of 1974, it was done so on 04.11.2024. Referring to the para nos.17 and 18 of the judgement in the case of Ankit Ashok Jalan, Shri Rastogi submits that it is provided therein that it would be proper for the appropriate government to wait till the report is received from the Advisory Board in two eventualities, i.e., first, if the representation is received just before the reference is made and there is no sufficient time to decide the same, and second, if the representation is received after the reference is made; but, before the matter is decided by the Advisory Board. He submits that none of the aforesaid situations obtained in the instant case and, therefore, it was competent for the appropriate government to have decided the representations without waiting for the report of the Advisory Board.

¶107

Shri Rastogi would further submit that there is no contradiction in the letter dated 13.11.2024 whereby, simply reiterating the law laid down in the case of Ankit Ashok Jalan (supra), the Government of Rajasthan was communicated that the representations filed by the petitioners as well as by his wife addressed to the detaining authority as also to the appropriate

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government were already decided before the matter was referred to the Advisory Board.

¶112

With regard to the allegation of delay in deciding the representations by the detaining authority as well as by the appropriate government, referring to and relying upon the additional affidavit dated 16.4.2025, learned ASG submits that the representation filed by the petitioner was received in the COFEPOSA Wing of CEIB on 18.10.2024 and was forwarded to the sponsoring authority on the very same day at about 5.30 pm through e-mail after obtaining necessary approvals. He submits that 19^th and 20^th October, 2024 were office holidays being Saturday and Sunday respectively and on the next available working day i.e. 21.10.2024, the representation was taken up for consideration which consisted of 40 different points and subpoints. Shri Rastogi submitted that the examination took considerable time to properly assess and examine the relevant files, documents and relied upon documents which alone consisted of 870 pages and it took four days to complete the exercise. He submits that in the meanwhile, on 21.10.2024, the representation of the petitioner’s wife was also received in the COFEPOSA Wing which was forwarded to the sponsoring authority on 22.10.2024 at about 2.58 pm through e-mail after obtaining necessary approvals. Learned ASG submitted that two separate representations were dealt with simultaneously but separately by the sponsoring authority. On perusal of the representation filed by Smt. Deepika Naulakha, it transpired that it contained many additional facts and grounds which did not exist in the representation filed by the detenue. Comments from the sponsoring authority on the representation of the detenue were

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received in the office of the detaining authority on 24.10.2024 at about 7.31 pm, while, comments on the representation of petitioner’s wife were received on 25.10.2024. 26^th and 27^th October, 2024 were office holidays being Saturday and Sunday respectively. Thereafter, the representations submitted by the petitioner as also by his wife were examined, studied minutely and were discussed in the COFEPOSA Wing in the light of available record, proposal received from the sponsoring authority, grounds of detention, relied upon documents, comments and after various rounds of deliberations and elaborate discussions, consolidated comments of the COFEPOSA Wing were prepared. Similar procedure was adopted on petitioner’s wife’s representation in the COFEPOSA Wing on 29.10.2024. On 30.10.2024, the detaining authority considered both the representations, complete material placed before it and on finding the detention order to be justified and lawful, disposed of the representations on that very day. Learned ASG submits that immediately thereafter, the COFEPOSA Wing started working for putting up the said representations and comments of the sponsoring authority before the DG, CEIB, i.e., the appropriate government. The representations filed by the petitioner as well as his wife were submitted on 01.11.2024 for consideration of the DG, CEIB as 31.10.2024 was the national holiday being Deepawali festival. On 2^nd November and 3^rd November, 2024, the office remained closed on account of Saturday and Sunday respectively. On the next working day, i.e., 4.11.2024, the appropriate authority independently considered the representations and finding the detention order to be justified, lawful and sustainable, disposed of the same in the manner stated hereinabove. He submits that in the aforesaid factual background,

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it is apparent that there was no delay in deciding the representations filed by the detenue as well as by his wife either by the detaining authority or by the appropriate authority. Shri Rastogi submits that there is no qualm about the law laid down by the Hon’ble Supreme Court in the cases relied upon by the learned senior counsel for the petitioner; but, since there is no unexplained delay in the instant matter in deciding the representations, the same are of little help to the petitioner. He, therefore, prays for dismissal of the habeas corpus petition.

¶121

Shri Kinshuk Jain, learned Senior Standing Counsel for the Customs Department, adopted the arguments advanced by the learned counsel for the respondent.

¶122

Heard. Considered.

¶123

Although, in the reply, the respondent has taken a preliminary objection as to maintainability of the habeas corpus petition being premature having been filed without waiting for opinion of the Advisory Board; but, since, during the course of oral submission, learned counsel for the respondent did not press this objection, therefore, it requires no consideration.

¶124

This Court finds no merit in another preliminary objection raised by the learned counsel for the respondent in its counter affidavit as to non-maintainability of the habeas corpus petition not having challenged the order dated 7.1.2025 passed by the Central Government during pendency of the writ petition under Section 8(f) of the COFEPOSA Act confirming the detention order. It is trite law that the strict rule of pleadings are inapplicable in the writ of habeas corpus and it is for the respondents to justify the detention order whenever it is assailed in a court of law. Their

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Lordships have held, in the case of Icchu Devi Chorasia (supra), as under:

¶129

“4. It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention, this Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention xxxxxxxxxxxxxxxxxxxxxx It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition. Vide Nazamuddin v. The State of West Bengal (1975) 2 SCR 593 once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law .

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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxit has been adopted by this Court in view of the peculiar socio-economic conditions prevailing in the country. Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law .xxxxxxxxxxxxxxxxx”

¶134

Further, this issue may be examined from another angle as well. Section 8(f) of the COFEPOSA Act reads as under:

¶135

8. Advisory Board- For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7) of article 22 of the Constitution-

“(a)xxxxxxx….

(b)xxxxxxx….

(c)xxxxxxx…

(d)xxxxxxx…

(e)xxxxxxx…

(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its

¶142

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¶144

opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.”

¶145

The order dated 7.1.2025 reads as under:

¶146

“No.PD-12002/05/2024/COFEPOSA Government of India Ministry of Finance Department of Revenue Central Economic Intgelligence Bureau COFEPOSA Wing

¶147

6^th Floor, ‘B’ Wing, Janpath Bhawan, Janpath, New Delhi, Dated the 7^th January, 2025 O R D E R

¶148

“WHEREAS an Order F. No. PD-12002/05/2024COFEPOSA dated 08.10.2024 was passed by the Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activites Act, 1974 for the Detention of Shri Piyush Nolakha S/o Shri Shrichand Nolakha, R/o Flat D- 001, Jewel of India, Malviya Nagar, Jaipur, Pin-302017;

¶149

WHEREAS the case of Shri Piyush Nolakha was placed before the State Advisory Board (COFEPOSA), Rajasthan High Court Bench, Jaipur wherein the Hon’ble Advisory Board is of the opinion that there is sufficient cause for the detention of the detenue;

¶150

WHEREAS, the Central Government has considered the report of the State Advisory Board (COFEPOSA), Rajasthan High Court Bench, Jaipur and other materials on record; and

¶151

Now, THEREFORE, in exercise of the powers conferred by Section 8(f) of the aforesaid Act, the Central Government hereby confirms the aforesaid detention order and further directs under Section 10 of ibid Act that Shri Piyush Nolakha be detained for a period of one year from the date of his detention i.e. from 09.10.2024.

(Priyanka Kapoor)

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Under Secretary to the Government of India.”

¶157

A perusal of the aforesaid order reveals that the detention order has been confirmed by the Central Government under Section 8 (f) based on the consideration of the report of the State Advisory Board, Rajasthan High Court Bench, Jaipur and other material on record. It, neither spells out any fresh ground other than the grounds of detention communicated to the petitioner vide letter dated 08.10.2024 while confirming it nor, it is case of the respondent that any new ground was taken into consideration while passing it. It is a well settled legal proposition that opinion of the Advisory Board is confidential in nature and is not susceptible to judicial review. In this regard, reference may be made to the judgement of the Hon’ble Supreme Court in the case of Union of India vs. Nisar Pallathukadavil Aliyar (2020) 20 SCC 252 wherein, it was held as under:

¶158

“17. According to the aforesaid decisions the nature of opinion given by the Advisory Board is neither judicial nor quasi judicial; that it would be erroneous and unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal court; that the Advisory Board does not try the question about the propriety or validity of the citizen’s detention as a court of law would, but, its function is limited. As stated in Akshoy Konai v. State of W.B., (1973) 1 SCC 297: 1973 SCC (Cri) 317, the opinion is merely intended to assist the government and it is binding on the appropriate government only if it favours the detenu and not when it goes against him. It was laid down in the said decision that the opinion of the Advisory Board cannot be subject-matter of review or scrutiny by the judicial courts/tribunals. The element of confidentiality was also taken note of and it was observed that the

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Advisory Board opinion is never intended to be open to challenge on the merits before any tribunal.

¶163

But the basic issue in the present matter is the nature of power exercised by the Advisory Board when an opinion is given by it pursuant to a reference made to it under Section 8(b) of the COFEPOSA Act. The report of the Advisory Board, excepting its opinion, is strictly confidential and the nature of the power so exercised by the Advisory Board in giving its report and the opinion, has already been pronounced upon by this Court in the cases referred to above viz. Dharam Singh Rathi v. State of Punjab, AIR 1958 SC 152: 1958 SCR 998: 1958 Cri LJ 282, Akshoy Konai v. State of W.B., (1973) 1 SCC 297: 1973 SCC (Cri) 317], A.K. Roy v. Union of India, (1982) 1 SCC 271: 1982 SCC (Cri) 152 and Calcutta Dock Labour Board v. Jaffar Imam, (1965) 3 SCR 453: AIR 1966 SC 282: 1966 Cri LJ 189. We follow these decisions and hold the present petition seeking to challenge the opinion dated 22.07.2019 of the Advisory Board as not maintainable. ”

¶164

Recently, their Lordships have held in the case of Union of India vs. Dharaneesh Raju Shetty, SLP(Crl.) Nos.80638064/2018 dated 17.07.2023 reiterating the observations made in the case of Nisar Pallathukadavil Aliyar (supra), as under:

¶165

“Leave is sought for to assail the final order dated 19.6.2018 passed by the Central Advisory Board, Karnataka in Opinion No.744/ADB/COFEPOSA(C)/2018.

¶166

Heard learned counsel on both sides. Learned counsel for the respondent brought to our attention a decision of the Court in Union of India vs. Nisar Pallathukadavil Aliyar, (2020) 20 SCC 252 wherein this court held that a special leave petition seeking to challenge a report of the Advisory Board/Opinion of Board is not maintainable.

¶167

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¶168

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¶169

In view of the said decision of this Court, this special leave petition is not maintainable. Consequently, it is dismissed.

¶170

Pending application(s), if any, stands disposed of.”

¶171

Since the order dated 07.01.2025 is based primarily on the opinion of the Advisory Board without spelling out any new ground in it for confirmation of the detention order, we are not satisfied that without laying challenge to it, the petition is not maintainable.

¶172

Even otherwise, we find substantial force in the submission of learned senior counsel for the petitioner that the confirmation order does not take away detenue’s right to assail the validity of the detention order on the grounds available under the law. Therefore, the preliminary objection is rejected.

¶173

Before we proceed to examine the challenge to the subject preventive detention order on its merit, it would be profitable to examine the scope of interference by this Court under Article 226 of the Constitution of India in a preventive detention order.

¶174

In the case of Vinod Lunia (supra) it was laid down as under:

¶175

“21……………. Under Article 226 of the Constitution, it has to be seen as to whether the order of detention has been passed on the material available with the detaining authority on record. The subjective satisfaction has to be of the detaining authority and the court would interfere only when no reasonable person could on the basis of the record available be satisfied for passing the order of detention. Even the adequacy or reasonableness of the satisfaction is not open to be examined by the High Court then the only thing which is to be seen is whether there is any material on record or not………...”

¶176

In the case of Rekha vs. State of Tamil Nadu-(2011) 5

¶177

SCC 244 , their Lordships held as under:

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“35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a “jurisdiction of suspicion” (vide State of Maharashtra vs. Bhaurao Punjabrao Gawande-(2008) 3 SCC 613 : (2008) 2 SCC (Cri) 128], SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.

¶182

It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel Vs. Union of India and others(1995) 4 SCC 51 : 1995 SCC (Cri) 643] vide para 49). These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh Vs. State of Punjab, (1981) 4 SCC 1981 : 1981 SCC (Cri) 853 (SCC p.483, para 4):-

¶183

"4. ……...May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus."

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As observed in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha (1987) 2 SCC 22 : 1987 SCC (Cri) 244 vide SCC para 5 : (SCC p.27)

¶188

"5. …......The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard."

¶189

In the case of Icchu Devi Choraria (supra), the Hon’ble Supreme Court held as under:

¶190

“3.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammeled by the fact that this is a case where a possible smuggler is seeking his release from detention.”

¶191

It is held in the case of Union of India vs. Arvind Shergill-

¶192

(2000) 7 SCC 601 , as under:

¶193

“4…………………………...The action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person xxxxxxxxxxxxxxxxxxxxxxxxxxxxx The Court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object

¶194

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¶195

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¶196

which the legislation has in view, that is, to prevent the detenu for engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid xxxxxxxxxxxxxxxxxxxxxx”

¶197

A Constitution Bench, in the case of Kamlesh Kumar Ishwardas Patel vs. Union of India & Ors.-(1995) 4 SCC 51 , held as under:

¶198

"49...............The Framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of activities of a particular person. We would, in this context, reiterate what was said earlier by this court while rejecting a similar submission:

¶199

"May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus."

¶200

Further, the same proposition of law has been reiterated by the Hon'ble Supreme Court of India through its Constitution Bench judgement in Ram Manohar Lohiya vs. State of Bihar & Anr.-1996 Cri. LJ 608 and in the cases of Tsering Dolkar vs. Admn. UT of

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Delhi-(1987) 2 SCC 69, Hem Lall Bhandari vs. State of Sikkam & Ors.-(1987) 2 SCC 9 and.

¶205

From the conspectus of the aforesaid precedential law, a clear legal picture, qua the scope of interference that emerges is that this Court, while examining validity of a preventive detention order, does not sit as an appellate authority and is not expected to examine the sufficiency of grounds of detention recorded by the authority for its subjective satisfaction which is not justiciable.

¶206

However, since, the life and liberty of a person is curtailed by clamping an order of preventive detention, the Court is under an obligation to examine whether the procedure prescribed under the Constitution of India vide Article 22 as also under the provisions of COFEPOSA Act has meticulously and scrupulously been complied with or not as also to see whether the ground, relied upon are relevant to the object for which the detention order is passed.

¶207

Having delineated the scope of interference by this Court under its writ jurisdiction against a preventive detention order, we propose to deal with the issues raised by the respective parties on their merit.

¶208

The detention order is assailed on account of it having been passed with inordinate and unexplained delay. Learned senior counsel for the petitioner has argued, referring to and relying upon the grounds of detention contained in the letter dated 8.10.2024, that despite receiving complaint way back in October, 2021 showing name of M/s. D.P. Designs Ltd., a detenue's company located at Hongkong, no reason has been offered by the respondent for passing the order of detention as late as in October, 2024, i.e., with a delay of about three years which has, therefore, remained unexplained.

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Per contra, learned counsel for the respondent, also relying upon the grounds of detention, has submitted that since, there was live-link between the prejudicial activities of the petitioner and the purpose of detention, there is no delay.

¶213

In the instant case, no doubt, the sponsoring authority received two communications dated 12.10.2021 and 09.11.2021 from the UCO Bank Branch at Vishakhapatnam and Jaipur respectively, alleging fraudulent bank remittances wherein, name of M/s. D.P. Designs Ltd. was also mentioned. However, during the course of investigation, it transpired that the detenue has created different overseas firms/companies which used to get inward remittance of funds from various firms situated in India in the name of digital/online services without any corresponding import and the same was used in abetting/smuggling activities of gold, diamond and precious stones. Thereupon, the LOC dated 19.07.2024 was issued against him and after de-boarding him from a flight at Jaipur Airport while traveling to Dubai on 22.07.2024, he was arrested and after recording his statement under Section 108 of the Customs Act, 1961, which is admissible in evidence and which reflected his neck deep involvement in the activities prejudicial to the economic security of the nation, the subject preventive detention order dated 08.10.2024 was clamped on him. The respondent has come out with a specific plea that the transaction of the year 2021, as referred to by the learned senior counsel for the petitioner, was not the solitary transaction but, during the course of investigation, specially, from his statement and the mobile details, it was revealed that the detenue was involved in hundreds of transactions and was more actively involved in the years 2023 and 2024. In view of his innate

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propensity, which increased considerably in the years 2023 and 2024, which also reflected a pattern of involvement in the prejudicial activities at regular interval, on 23.09.2024, the sponsoring authority sent a proposal for his preventive detention to the office of the detaining authority which was received on 24.09.2024. The aforesaid proposal was placed before a high level screening committee comprising of senior level officers of the Government of India which, in its meeting dated 03.10.2024, upon meticulous examination of the material on record, found that the regular propensity of the petitioner in the last recent period is indicative of the fact that he is likely to continue to involve in such illegal activities to the detriment of the economy of the country and the matter was referred to the detaining authority who, after screening the voluminous record comprising of as many as 873 pages, passed the subject detention order.

¶218

From the gamut of the aforesaid facts, we have no hesitation in holding that there was no delay in passing the detention order, there was close proximity to the time when it was passed with the prejudicial activities of the detenue and the live-link in between the same has not snapped.

¶219

Their Lordships, in the case of Licil Antony (supra), held as under:

¶220

"9. We have given our thoughtful consideration to the rival submissions and we have no doubt in our mind that there has to be a live-link between the prejudicial activity and the order of detention. COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and influence cause delay in making of an order of detention. While dealing with the question of delay in making an order of

¶221

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¶222

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¶223

detention, the court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case.

¶224

There are a large number of authorities which take this view and, therefore, it is unnecessary to refer to all of them. In the case of Adishwar Jain v. Union of India-(2006) 11 SCC 339, this Court observed as follows:

¶225

“8. Indisputably, delay to some extent stands explained. But, we fail to understand as to why despite the fact that the proposal for detention was made on 2-12-2004, the order of detention was passed after four months. We must also notice that in the meantime on 20-12-2004, the authorities of the DRI had clearly stated that transactions after 11-10-2003 were not under the scrutiny stating:

¶226

“… In our letter mentioned above, your office was requested not to issue the DEPB scripts to M/s Girnar Impex Limited and M/s Siri Amar Exports, only in respect of the pending application, if any, filed by these parties up to the date of action i.e. 11-10-2003 as the past exports were under scrutiny being doubtful as per the intelligence received in this office. This office never intended to

¶227

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¶229

stop the export incentives occurring to the parties, after the date of action i.e. 11-10-2003. In the civil (sic) your office Letter No. B.L.-2/Misc. Am-2003/Ldh dated 17-5-2004 is being referred to, which is not received in this office. You are, therefore, requested to supply photocopy of the said letter to the bearer of this letter as this letter is required for filing reply to the Hon’ble Court.”

¶230

Furthermore, as noticed hereinbefore, the authorities of the DRI by a letter dated 28-2-2005 requested the bank to defreeze the bank accounts of the appellant.

¶231

The said documents, in our opinion, were material. 11. It was, therefore, difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them.

¶232

It is no doubt true that if the delay is sufficiently explained, the same would not be a ground for quashing an order of detention under COFEPOSA, but as in this case a major part of delay remains unexplained.”

¶233

Further, this Court had the occasion to consider this question in the case of Rajinder Arora v. Union of India, (2006) 4 SCC 796 in which it has been held as follows:

¶234

“20. Furthermore no explanation whatsoever has been offered by the respondent as to why the order of detention has been issued after such a long time. The said question has also not been examined by the Authorities before issuing the order of detention.

¶235

The question as regards delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 stating: (SCC pp. 748-49, paras 10-11)

¶236

“10. The conspectus of the above decisions can be summarised thus: The question whether the

¶237

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¶239

prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard-and-fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.

¶240

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¶241

The conclusion which we have reached is in tune with what has been observed by this Court in the case of M. Ahamedkutty v. Union of India, (1990) 2 SCC 1. It reads as follows:

¶242

“10........ Mere delay in making of an order of detention under a law like COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily

¶243

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¶245

explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention. In that case, there was no explanation for the delay between 2.2.1987 and 28.5.1987, yet it could not give rise to legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the order of detention.”

¶246

Mr. Basant, then assails the order of detention on the ground of its delayed execution. He points out that the order of detention was passed on 6.5.2013 whereas it was served on the detenu on 11.6.2013. He submits that had the detenu been absconding, the appropriate Government ought to have taken recourse to Section 7 of the COFEPOSA. Section 7 of the COFEPOSA confers power on the detaining authority to make a report to a competent Magistrate in relation to an absconding person so as to apply the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure. It also provides for publication of an order in the Official Gazette, directing the detenu to appear. It is an admitted position that no such report or publication was made.

¶247

Accordingly, Mr. Basant submits that the order of detention is vitiated on the ground of delay in its execution also. In support of the submission he has placed reliance on a large number of authorities.

¶248

We are entirely in agreement with Mr. Basant that undue and unexplained delay in execution of the order of detention vitiates it, but in the facts of the present case, it cannot be said that such delay has occurred. As stated

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earlier, the order of detention dated 6.5.2013 was served on the detenu on 11.6.2013. It is expected of the detaining authority to take recourse to ordinary process at the first instance for service of the order of detention on a detenu and it is only after the order of detention is not served through the said process that recourse to the modes provided under Section 7 of the COFEPOSA are to be resorted. Here, in the present case, that occasion did not arise as the order of detention was served on the detenu on 11.6.2013. Therefore, in our opinion, the order of detention cannot be said to have been vitiated on this ground also."

¶253

Further in the case of Pooja Batra (supra), the Hon'ble Supreme Court reiterated the principle that if there is proximity to the alleged activities and the detention order, then it cannot be quashed on the ground of delay as there was no snapping of link between the incident and the alleged potentiality of the detenue in indulging in the smuggling activities.

¶254

In the instant case, as already observed, the prejudicial activities of the petitioner to the detriment of the economy of the nation increased considerably in the years 2023 and 2024 and as a matter of fact, continued till June, 2024, he was arrested in July, 2024 and while, he was still in custody, detention order was clamped. Therefore, in the abovementioned circumstances, we are not persuaded to hold that there was no close proximity of the detention order to the alleged offence.

¶255

The judgements relied upon by the learned senior counsel for the petitioner are of no help to him having been rendered in different facts and circumstances.

¶256

In the case of Rajinder Arora (supra), a raid on the detenue's residence by the Director of Revenue Intelligence was conducted on 26.05.2004 and was taken into custody. He was shown to be arrested on 28.05.2004 and was remanded to the

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judicial custody by the Magistrate on the same day whereupon, he retracted his confession stating that the same was obtained under coercion, duress and torture. Upon failure on the part of the DRI to file a complaint against the detenue within the prescribed period of sixty days, he was enlarged on bail on 28.07.2004. On 31.03.2005, the order of detention was passed. Observing that till date, no prosecution has been lodged against the detenue by the DGFT and the authorities had granted redemption certificates, it was held by their Lordships that there was unexplained inordinate delay in passing the order of detention. That case is distinguishable on two counts; firstly, after his release on bail on 28.07.2004, the detention order was passed on 31.03.2005 i.e. with great delay without any intervening event in the meanwhile warranting his detention; secondly, it was a case of solitary instance with no allegation of involvement of the detenue in any illegal/prejudicial activities after his release on bail on 28.07.2004 till the passing of the detention order only on 31.03.2005. However, as already observed, no such situation obtains in the instant case. The detention order was clamped when the petitioner was already in custody and there was live-link in between the prejudicial activities and the detention order.

¶261

The judgement of Hon'ble Delhi High Court in the case of Mohd. Nashruddin (supra) relied upon by Shri Chaudhri is of little assistance to him. In that case, there was delay of 272 days in passing the detention order from the date of alleged incident and the explanation offered by the respondent to justify the delay that some overseas evidence had been received from Dubai in the first week of November, 2019, proposal for detention was analysed on 13.01.2020 and after receipt of the recommendation of the

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Central Screening Committee on 14.01.2020, the order of detention was passed on 21.01.2020; was not accepted in view of the fact that there was no reference of such overseas evidence allegedly received from Dubai in first week of November, 2019, in the detention order.

¶266

Next contention of the learned senior counsel for the petitioner is based on non-consideration of the retraction of the confessional statement made by co-accused Ashish Jain. It was argued by Shri Chaudhri that while, the detention order refers the statement dated 16.09.2024 of Ashish Jain recorded under Section 108 of the Act of 1962; but, the sponsoring authority failed to apprise the detaining authority that immediately after he was remanded to judicial custody on 22.09.2024, he had, through his counsel, moved an application retracting the statement and its consequential non-consideration by the detaining authority vitiates the order whereas, learned counsel for the respondent has defended the detention order despite non-consideration of the retraction of the confessional statement on the plea that since, it was not received by the sponsoring authority till the date of issuance of the detention order, it could not be placed before the detaining authority.

¶267

In Smt. Elsy George (supra), the Hon'ble Bombay High Court was pleased to hold that if documents relating to cases registered by different law enforcement agencies under different relevant enactments are vital documents, which may have a bearing on the subjective satisfaction of the detaining authority, they would have to be forwarded to the detaining authority by the sponsoring authority and the failure to do so would vitiate the detention order. It was further held that " it should be borne in

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mind that eternal vigilance is the price which the law expects from the detaining and sponsoring authorities if they want detention orders to be affirmed by this Court under Article 226 of the Constitution of India. In their laxity lies the liberty of the detenue."

¶272

In the case of Manoharlal Narang (supra), their Lordships have held that it is responsibility of the sponsoring authority and the detaining authority to collect all the relevant material about any court proceeding or proceeding before other authorities for the purpose of issuance of detention order and they cannot be permitted to adopt such cavalier attitude while passing the detention order.

¶273

In the case of Ayya @ Ayub (supra), it was held as under:

¶274

"28. What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining-authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality."

¶275

Similar principle has been reiterated in the cases of Ahmed Nisar (supra), Deepak Bajaj (supra), Adishwar Jain (supra), A. Sowkath Ali (supra) and Ranu Bhandari (supra).

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This Court is in respectful agreement with the principle of law laid down in the aforesaid cases. However, in the instant case, we do not find from the factual foundation laid by the petitioner that when and in what fashion, Ashish Jain made retraction of his confessional statement. While, in para no.(xii) of the memo of habeas corpus petition, it is simply stated that the preventive detention order is bad in law as it is based on alleged statement of one Ashish Jain, which has already been retracted by him, in ground no.(EE), following averment has been made:

¶280

"Moreover, it is important to submit that Ashish Jain has retracted his statements on 22.9.2024 claiming that the statements were tendered under coercion. Despite this, the customs authority and the detaining authority have failed to consider this retraction in the COFEPOSA Act. Moreover, the customs authority has not produced the said retraction even before the detaining authority. Ignoring this retraction is a serious lapse."

¶281

Further, while, no specific averments were made in the memo of habeas corpus petition before whom and in what manner, the retraction was made; however, in para no.7.15 of the additional affidavit filed by petitioner's wife, it is stated that the retraction was made vide letter dated 22.09.2024 (Annexure-10) sent to the learned CJM, Jaipur. The Annexure-10 is a written application by the detenue addressed to the Court of Chief Judicial Magistrate Economic Offence, Jaipur Metropolitan, Jaipur-II. It is not revealed from the aforesaid application as to when it was submitted to the learned Court and in what manner. Neither it bears receipt of the Court, nor any order sheet of the learned Court has been submitted to substantiate the submission that it, as a matter of fact, was submitted in the Court on 22.09.2024. In

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the aforesaid circumstances, especially, in view of categorical denial by the sponsoring authority to have its knowledge, this Court is not satisfied that the petitioner has been able to substantiate his submission that Ashish Jain retracted his statement on 22.09.2024 in the manner as claimed. A threeJudges Bench of the Hon'ble Supreme Court of India, in the case of Ankit Ashok Jalan (supra) involving almost identical factual context, proceeded to hold as under:

¶286

"18. Now so far as the other submissions made by the learned counsel appearing on behalf of the detenus, which according to the learned counsel were not considered by the High Court, namely, non-consideration of the relevant facts, namely, the retraction statement made by Shri Anand, by the Detaining Authority is concerned, at the outset, it is required to be noted that it appears that Memo No. 9920/AB-I dated 31.08.2019 of the Jail Authority, prisoner’s (Shri Anand) petition dated 22.6.2019 was forwarded to the learned Chief Metropolitan Magistrate, Calcutta only. It appears that the said petition was not forwarded to any other concerned including the Sponsoring Authority or Detaining Authority. It also appears from the material on record that as per letter Memo No. 9899/AB-I dated 30.08.2019 of Jail Authority, a copy of the prisoner’s petition of Shri Anand dated 22.6.2019 was forwarded on 22.6.2019 itself to the learned Chief Metropolitan Magistrate, Calcutta. The same was received by the office of the learned Chief Metropolitan Magistrate, Calcutta on 24.6.2019. It appears that Shri Anand and the detenus herein were produced before the learned Chief Metropolitan Magistrate, Calcutta from judicial custody on 2.7.2019 and during the course of hearing, it had come to the notice of prosecution that a retraction petition was filed by Shri Anand. Therefore, and accordingly, a request was made before the learned Chief Metropolitan Magistrate, Calcutta

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for supply of a copy of the same and accordingly the learned Chief Metropolitan Magistrate ordered advocate of Shri Anand to serve a copy of the retraction petition vide order dated 2.7.2019. It appears from the material on record that the office of DRI, Calcutta received a copy of the retraction petition of Shri Anand dated 22.6.2019 on 15.07.2019. Much reliance is placed upon the order sheet of the learned trial Court dated 22.06.2019 in support of the submission on behalf of the detenus that the Sponsoring Authority was aware of the Anand’s retraction statement and therefore the Sponsoring Authority ought to have drawn the attention of the Detaining Authority on the wider aspect of Anand’s retraction.

¶291

However, it is required to be noted that there are two orders available on the order sheet of the trial Court. First is the handwritten order and other is a typed order. All other orders are typed orders. The handwritten order does not bear the stamp of the court and/or signature of the learned Magistrate. Therefore, the handwritten order does not inspire any confidence and therefore no reliance can be placed upon the handwritten order on the order sheet of the trial Court dated 24.06.2019. Under the circumstances, it appears that when the detention orders were passed by the Detaining Authority, neither the Sponsoring Authority nor even the Detaining Authority was aware of any retraction petition of Shri Anand. Under the circumstances, there was no occasion and/or reason for the Detaining Authority to consider the retraction statement of Shri Anand. Under the circumstances, it cannot be said that on non-consideration of the Anand’s retraction petition, the detention orders have been vitiated.

¶292

In view of the above and for the reasons stated above, the High Court has committed a grave error in quashing and setting aside the detention orders and interfering with the subjective satisfaction of the Detaining Authority. Consequently, the appeal preferred by the Detaining

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Authority i.e. Civil Appeal arising from Special Leave Petition (Criminal) No.7010 of 2019 is allowed, the impugned judgment and order in Ankit Ashok Jalan vs. Union of India, 2019 SCC OnLine Del 9452, passed by the High Court quashing and setting aside the detention orders is hereby quashed and set aside and the detention orders of the respective detenus are hereby restored. The detenus i.e. Ashok Kumar Jalan and Amit Jalan shall be taken into custody forthwith by the Detaining Authority. Accordingly, the special leave petition preferred by the respondent i.e. Special Leave Petition (Criminal) No.7013/2019 stands dismissed."

¶297

The matter can be examined from another angle as well. A Larger Bench of the Hon'ble Apex Court, in the case of Prakash Chand Mehta vs. Commissioner and Secretary, Government

¶298

of Kerala & Ors.-1985 Supp SCC 144, while examining inter alia a similar issue, held as under:

¶299

" 71. Section 5-A stipulates that when the detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad.

¶300

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 75. In the instant case, the ground of detention is the satisfaction of the detaining authority that with a view to preventing the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing the detenu from, inter alia, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods, or engaging in transporting or concealing or keeping smuggled goods the detention of the detenu is necessary.

¶301

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¶302

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¶303

This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the contention but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have been enumerated before . We have to examine whether even if the facts stated in the confession are completely ignored, then too the inferences can still be drawn from other independent and objective facts mentioned in this case, namely the fact of seizure after search of 60 gold biscuits from the suitcase of the daughter in the presence of the father which indubitably belonged to the father and admitted by him to belong to him for which no explanation has been given and secondly the seizure of the papers connected with other groups and organisations. Pratap Sait and others to whom gold has been sold by the father are relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining authority for detaining the detenu for the purpose of Section 3(1)(iii)and 3(1)(iv). We are of the opinion that the impugned order cannot be challenged merely by the rejection of the inference drawn from confession. The same argument was presented in a little different shade namely the fact or retraction should have been considered by the detaining authority and the Court does not know that had that been taken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the said Act. Whether other ground should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position then in view of Section 5-A

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of the Act there was sufficient material to sustain this ground of detention.

¶308

In the case of State of Gujarat v. Chamanlal Manjibhai Soni-(1981) 2 SCC 24, this Court maintained the order of the High Court quashing the detention. This Court observed that detention under Section 3 of the Act was only for the purpose of preventing smuggling and all the grounds, whether there are one or more, would be relatable only to various activities of smuggling and no other separate ground which could deal with matters other than smuggling could be conceived of because the Act of smuggling covered several activities each forming a separate ground of detention and the Act dealt with no other act except smuggling. Whenever allegations of smuggling were made against a person who was sought to be detained for preventing further smuggling there is bound to be one act or several acts with the common object of smuggling goods which was sought to be prevented by the Act. It would, therefore, not be correct to say that the object of the Act constituted the ground for detention. This view is respectfully retracted but in the instant case, the authorities concerned came to the conclusion that the detenus were engaged in smuggling, in support of the same they relied on several factors namely:

¶309

(1) The search and seizure at room no.316 at Dwaraka Hotel and recovery of 60 gold biscuits.

¶310

(2) The fact that the importation of the 60 gold biscuits could not be explained by the detenu Venilal.

¶311

(3) The secretive manner in which the said gold biscuits were kept.

¶312

(4) The connection with the various dealers as mentioned hereinbefore and the statements of the employees of the dealers that the father and the sons used to come with gold bars.

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77. These materials were in addition to the statements and concessions made under Section 108 of the Customs Act by the father, the sons and the daughter. So even if the statements made under Section 108 by the father, the sons and the daughter are ignored and obliterated, the other facts remain and these are materials good enough to come to the prima facie belief that detention of the detenus was necessary."

¶317

Thus, it was held in the aforesaid case that, if the subjective satisfaction of the detaining authority is based on several factors, even if one of the factors is not found to be tenable, the order cannot be quashed if it can be sustained on other factors.

¶318

If the subject detention order is examined in the light of law laid down in the aforesaid judgement, this Court finds that the statement of Ashish Jain dated 16.09.2024 is one of the factors for recording subjective satisfaction, otherwise, there are various other factors including the confessional statements of detenue himself recorded under Section 108 of the Act of 1962 along with plethora of other incriminating material to reflect his involvement in the prejudicial activities. Here, we may pause and take note of the fact that although, the petitioner is claimed to have retracted his confessional statements made on 22.07.2024 recorded at the office of Deputy Commissioner of Customs International Airport, Terminal-2, Jaipur, even dated recorded at the office of the Commissioner, Customs, Jaipur, dated 24.07.2024, dated 25.07.2024, dated 26.07.2024, dated 27.07.2024, dated 28.07.2024, dated 29.07.2024, vide his letter dated 18.11.2024 addressed to the Commissioner of Customs (Preventive), Jaipur and for delay in retraction, it is stated that he was unwell and was hospitalised in Jail Hospital. A perusal of the letter dated

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18.11.2024 placed on record as Annexure-11 along with memo of additional affidavit reveals that it is stated therein that he has already submitted his retraction but, it is conspicuously silent as to when the retraction was made and in what manner. However, in this petition filed on 05.11.2024, there is not a whisper of averment that he has ever retracted his statements. In view of the aforesaid facts and looking to the inordinate delay in retraction, we are not satisfied that it is of any help to the petitioner not having exercised his right of retraction at the earliest.

¶323

For the aforesaid reasons, submission of the learned senior counsel for the petitioner based on non-consideration of the retraction does not merit acceptance.

¶324

The third limb of submission of learned senior counsel for the petitioner has been that detenue's fundamental and statutory right of making effective representation against the detention order was jeopardized on account of non-supply of all the documents referred to and relied upon by the detaining authority as also for supply of some illegible documents. Much emphasis of Shri Chaudhri, in this regard, has been on non-supply of 186 documents mentioned in the panchnama dated 22.7.2024 indexed at S.Nos.9, 10 and 11 in the list of RUDs. He has also canvassed, referring to the grounds of detention, that a number of documents relied upon by the detaining authority were not supplied whereas, defence of the respondent has been that all the documents relied upon by the detaining authority for recording his subjective satisfaction, were supplied to the petitioner and the allegation of supply of some illegible documents is an afterthought inasmuch as no such plea was raised in any of the representations submitted either by the petitioner or his wife.

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It has been held in all the judgements relied upon by the learned senior counsel for the petitioner, in this regard, that the detaining authority is under an obligation to supply to the detenue all the documents relied upon by it to enable him to make an effective representation against the grounds of detention. However, copy of such documents to which a casual or passing reference has been made by the detaining authority, is not required to be supplied. Very recently, a three-Judges Bench of the Hon'ble Supreme Court of India has, in the case of Jaseela Shaji Ji (supra), held as under:

¶329

"28. Insofar as the reliance on the judgment of this Court in L.M.S. Ummu Saleema vs. B.B. Gujaral:(1981) 3 SCC 317 is concerned, the High Court relied on the following observations of this Court (SCC p.320, para 5):

¶330

"5…………….. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention."

¶331

There can be no doubt that it is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in the narration of facts and which are not relied upon by the Detaining Authority in making the order of detention. However, failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to

¶332

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¶334

violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India.

¶335

We may also gainfully refer to the following observations of this Court in Radhakrishnan Prabhakaran vs. State of T.N.:(2000) 9 SCC 170:

¶336

"8. We may make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him."

¶337

It could thus be seen that though this Court held that a copy of every document mentioned in the order is not required to be supplied to the detenu, copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary are required to be supplied to him.

¶338

In the case of J. Abdul Hakeem vs. State of T.N.:(2005) 7 SCC 70, the position was reiterated by this Court by observing thus: (SCC p.74, para 8)

¶339

"8………. From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opinion or was made the basis for passing the order of detention. The crux of the matter lies in whether the detenu's right to make a representation against the order of detention is hampered by nonsupply of the particular document."

¶340

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¶342

In the case of State of T.N. vs. Abdullah Kadher Batcha: (2009) 1 SCC 333, again the position was reiterated by this Court thus : (SCC pp.335-36, para 7)

¶343

"7. The court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non-supply of the documents called for had any effect on the detenu and/or whether the non-supply was prejudicial to the detenu. Merely because copies of some documents have (sic not) been supplied, they cannot by any stretch of imagination be called as relied upon documents. While examining whether non-supply of a document would prejudice a detenu, the court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced."

¶344

34. This Court reiterated that, primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. It has been further held that the documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced.”

¶345

In para no.13 of the grounds of detention communicated to the petitioner vide letter dated 08.10.2024, it is, in no uncertain terms, stated that while passing the detention order, the detaining authority has relied upon the documents mentioned in the enclosed list which was also served upon the detenue along with the grounds of detention. Even if the petitioner was not supplied

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with the documents as mentioned in the panchanama, the detaining authority was not under an obligation to supply the same as they were not relied upon by him while passing the order impugned. Neither, it has been case of the petitioner that the documents relied upon by the detaining authority were not sufficient to record his subjective satisfaction nor, this Court is expected under its writ jurisdiction to delve into this aspect. In view thereof, this Court is not satisfied that the detenue was not supplied with all the documents relied upon by the detaining authority for recording his subjective satisfaction.

¶350

Contention of the learned senior counsel for the petitioner with regard to supply of some of the documents as illegible, is being noted only for rejection inasmuch as, this Court finds substantial force in the submission of learned counsel for the respondent that this allegation is without substance and has been made only as an afterthought on account of its absence in any of the representation(s) filed either by the petitioner or by his wife.

¶351

Next, learned senior counsel for the petitioner has canvassed that since, the petitioner is already facing prosecution for the offence under Sections 132 and 135 of the Act of 1962, the provisions of that Act i.e., the ordinary law of the land is sufficient to deal with the situation, the preventive detention order is totally unwarranted. Whereas, the defence of the respondent is that nature and purpose of both is quite distinct and operate in different field.

¶352

A Constitution Bench has, in the case of Hardan Shah vs. State of West Bengal and Ors.-(1975) 3 SCC 198, held that the essential concept of preventive detention is that detention of a person is not to punish him for something he has done but, to

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prevent him from doing it and its basis is satisfaction of the executive of a reasonable probability of the likelihood of the detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. Whereas, the ordinary law of the land, on the other hand, is for an act already done which can only be possible by way of trial and legal evidence. It was further held that there is no parallel between prosecution in a court of law and the detention order; one is a punitive action and the other is a preventive act.

¶357

Reiterating the same principle, their Lordships have held in Sasti @ Satish Chowdhary vs. State of West Bengal (supra) as under:

¶358

Sasti @ Satish Chowdhary vs. State of West Bengal (supra)

¶359

"4.........................It is argued by Mr. Arora that as the act attributed to the petitioner in the grounds of detention constituted an offence under the Indian Penal Code, the petitioner could only be tried in a court of law for the offence and no order for his detention on that score could be made. This contention, in our opinion, is devoid of force. It is always open to the detaining authority to pass an order for the detention of a person if the grounds of detention are germane to the object for which a detention order can legally be made. The fact that the particular act of the detenu which provides the reason for the making of the detention order constitutes an offence under the Indian Penal Code would not prevent the detaining authority from passing the order for detention instead of proceeding against him in a court of law. The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention. There would. be no legal bar to the making of detention order in such a case. It would, however, be

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imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be relevant and germane to the object for which a detention order can be, made under the Act. Even in cases where a person has been actually prosecuted in a court of law in respect of an incident and has been discharged by the trying magistrate, a valid order of his detention can be passed against him in connection with that very incident. It was recently observed by this Court in the case of Mohd. Salim Khan vs. Shri C.C. Bose & Anr. (Writ Petition No. 435 of 1971 decided on April 25, 1972) that from the mere fact that a detenu was discharged in a criminal case relating to an incident by a magistrate, it could not be said that the detention order on the basis of that incident was incompetent, nor could it be inferred that it was without basis or mala fide. Reliance in this connection was placed upon the case of Sahib Singh Duggal vs. Union of India-AIR 1966 SC 340."

¶364

In the case of State of Punjab vs. Sukhpal Singh (supra),

¶365

it was held as under:

¶366

"8. ………………………The act nowhere provides that the detaining authority cannot resort to preventive detention without first criminally prosecuting the detenu. A clear distinction has to be drawn between preventive detention in which anticipatory and precautionary action is taken to prevent the recurrence of apprehended events, and punitive detention under which the action is taken after the event has already happened. It is true that the ordinary criminal process of trial is not to be circumvented and short circuited by apparently handy and easier resort to preventive detention. But the possibility of launching a criminal prosecution cannot be said to be an absolute bar to an order of preventive detention.

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In actual practice the grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in. A conjoined reading of the detention order and the grounds of detention is therefore necessary. It is, as was held in Ujagar Singh v. State of Punjab, AIR [1952] SC 350: [1952] SCR 756, largely from prior events showing tendencies or inclinations of a man that inference can be drawn whether he is likely in future to act in a prejudicial manner. But such conduct should be reasonably proximate and should have a rational connection with the conclusion that the detention of person is necessary. The question of relation of the activities to the detention order must be carefully considered. Though the possibility of prosecution being launched is not an irrelevant consideration, failure to consider such possibility would not vitiate the detention order. In Haradhan Saha v. The State of West Bengal [1975] 3 SCC 198, the Court did not lay down that possibility of a prosecution being launched was an irrelevant consideration, not to be borne in mind by detaining authority but it laid down that the mere circumstance that a detenu was liable to be prosecuted would not by itself be a bar to the making of an order of preventive detention. It did not follow therefore that failure to consider the possibility of criminal prosecution being launched could ever lead to the conclusion that a detaining authority never applied its mind and the order of detention was therefore bad. Is it correct to say that if such possibility was not present in the mind of the detaining authority, the order of the detention is necessarily bad? Unless it clearly appears that preventive detention is being resorted to as the line of least resistance where criminal prosecution would be the usual course, no fault can be found with it. What is to be seen is whether the detaining authority has applied its mind or not to the question whether it was necessary to make preventive detention. In the instant case there is evidence of application of mind. The proximity between the date of

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commission of an offence and of detention order cannot also be said to be absent in this case. As we have already seen the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is precautionary power exercised reasonably in anticipation and may or may not relate to an offence. It cannot be considered to be a parallel proceeding. The anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may provide sufficient ground for detention. It cannot be said that the satisfaction of the detaining authority on the basis of his past activities that if the detenu were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of public order etc. shall not be based on adequate materials. Public safety ordinarily means security of the public or their freedom from danger. Public order also implied public peace and tranquility. There is no escape from the conclusion that the terrorists and disruptive activities disrupt public peace and tranquility and affect the freedom of the public from danger to life and property. Disruption means the act of bursting and tearing as under. Disruptive means producing or resulting from or attending disruption. Terrorism means the act of terrorising; unlawful acts of violence committed in an organised attempt to over-throw a Government or like purposes. Terrorist means one who adopts or supports the policy of terrorism. The terrorist and disruptive activities are naturally disruptive of public peace, tranquility and development. In Hemlata Kantilal Shah v. State of Maharashtra and Ors., AIR 1982 SC 8: [1982] 1 SCR 1028, it was held that the prosecution or the absence of it is not an absolute bar to an order of preventive detention but the authority is to satisfy the court that it had in mind the question of possibility of criminal prosecution while forming the subjective satisfaction by the detaining authority. It may be based on inference from the past conduct and antecedent history of the detenu. The High Court under Article 226 and Supreme Court under Article 32 or 136 do

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not sit in appeal from the order of preventive detention. But the Court is only to see whether the formality as enjoined by Article 22(5) had been complied with by the detaining authority, and if so done, the Court cannot examine the materials before it and, find that the detaining authority should not have been satisfied on the materials before it and detain the detenu. In other words, the Court cannot question the sufficiency of the grounds of detention for the subjective satisfaction of the authority as pointed out in Ashok Kumar v. Delhi Administration & Ors., AIR 1982 SC 1143: [1982] 3 SCR 707. Those who are responsible for the national security or for the maintenance of public order must be the judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. The justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measures even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. There is no reason why executive cannot take recourse to its powers of preventive detention in those cases where the executive is genuinely satisfied that no prosecution can possibly succeed against the detenu because he has influence over witnesses and against him no one is prepared to depose. However, pusillanimity on the part of the executive has to be deprecated and pusillanimous orders avoided."

¶379

Although, learned senior counsel for the petitioner has tried to distinguish the aforesaid judgements on the premise of having been rendered in altogether different facts and circumstances, but, we are bound by the ratio decidendi laid down by the Hon'ble

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Supreme Court in the aforesaid cases with regard to the scope of ordinary law of the land and the law of preventive detention in dealing with an accused. As already held, the subject detention order reflects subjective satisfaction of the authority about the probability and high innate propensity of the detenue to indulge in prejudicial activities to the detriment of the national economy if not detained. The detention order contains the following satisfaction of the detaining authority in this regard:

¶384

"10. I am aware that prosecution under Section 132 and 135 of the Customs Act, 1962 has been launched against you, i.e., Shri Piyush Naulakha and the adjudication proceedings are likely to be initiated soon which are however, punitive in nature and independent of preventive detention proved under COFEPOSA Act, 1974. However, considering Shri Piyush Naulakha's, i.e., your high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilized by detention under the COFEPOSA Act, 1974 with a view to prevent you from acting in manner prejudicial to the conservation of foreign exchange and preventing from abetting of smuggling of goods in future."

¶385

There cannot be any qualm about the law laid down in the judgements relied upon by the learned senior counsel for the petitioner in the cases of Rekha (supra), Yaman Aungbhi Lambileema (supra) and Munnagalla Yadamba (supra), but, for the reasons stated hereinabove, we are not persuaded to quash the detention order only on the premise that the detenue is already facing prosecution under the Act of 1962 which is sufficient to cater the needful.

¶386

Further, contention of the learned senior counsel for the petitioner has been that the detention order has been issued for a

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wrong purpose, i.e., punitive in nature and not as a preventive measure inasmuch as he was already in custody and observation of the detaining authority as to a possibility of his release from judicial custody was mere his ipse dixit not based on any empirical data. The aforesaid submission is two- fold; firstly, it is stated that since, the petitioner was already in custody, there was no occasion to pass the preventive detention order. So far this contention is concerned, it is an unexceptional legal position that a person, while in custody, can be clamped upon with a preventive detention order obviously, based on relevant considerations. However, we have already dealt with this issue while deciding with the question as to whether the ordinary law of land is sufficient to take care of the situation and no preventive detention order was warranted holding that nature and scope of both are different and they operate in entirely different field. The second part of the submission is that observation of the detaining authority of a possibility of his release from judicial custody was without any basis rendering the order bad in law. However, from the material on record, we are not persuaded to hold that there was no material before the detaining authority to warrant such observation. Indisputably, the subjective satisfaction of the detaining authority is based on "relied upon documents". A copy of the S.B. Criminal Misc. Bail Application No..../2024 filed by the petitioner before this Court, is part of the RUDs and in ground-V of this application, it is categorically stated by the petitioner that "the fact is accepted in the reply application that the other accused in the case have been granted bail. According to the Customs themselves, the role of the applicant is not different from that of other accused but is of lesser nature than that of playing a role

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only in collusion and allegedly sent by other accused.” The factum of release of co-accused has been reiterated by the petitioner in ground-Z of the application as well. The Union of India, in its reply to the aforesaid bail application, which is part of the RUDs, has clearly stated that the other co-accused namely; Om Prakash Vanjani, Ravindra Kumar, Kamlesh Nagada, Deepak Kumar, Vikram Singh Katewa, Suresh Daktiya, Navratan Jain and Vimal Nahar were released on bail by this Court. From the aforesaid material, which was available before the detaining authority for its perusal, we are not ready to accept the plea of the learned senior counsel for the petitioner that observation of the detaining authority as to possibility of petitioner's release from judicial custody was mere ipse dixit and was without basis. Further, a Larger Bench of the Hon'ble Supreme Court in the case of Ankit Ashok Jalan (supra), held as under:

¶395

"11. As per catena of decisions of this Court, even if a person is in judicial custody, he can be detained under the relevant provisions of the Act concerned, like COFEPOSA, etc. However, there must be a proper application of mind and the Detaining Authority must have been subjectively satisfied on considering the relevant material that there is a reason to believe that there is a real possibility of detenus being released on bail and that on being so released the detenus will in all probability indulge in prejudicial activities. In the recent decision, this Court in the case of Union of India vs. Dimple Happy Dhakad-(2019) 20 SCC 609 had an occasion to consider the aforesaid aspect and after considering the decisions of this Court in the cases of Kamarunnisa vs. Union of India-(1991) 1 SCC 128); Union of India v. Paul Manickam (2003) 8 SCC 342; Huidrom Konungjao Singh v. State of Manipur (2012) 7 SCC 181; Dharmendra Suganchand Chelawat v. Union of India (1990)

¶396

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¶398

1 SCC 746; and Veeramani vs. State of T.N.-(1994) 2 SCC 337, this Court observed and held (i) that the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the Detaining Authority was aware of the fact that the detenu was already in custody; (ii) that the Detaining Authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the Detaining Authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority.

¶399

In Noor Salman Makani vs. Union of India-(1994) 1 SCC 381, a submission was made regarding non-application of mind by the Detaining Authority with regard to the circumstance that the detenu was in jail and a mere bald statement that the possibility that the detenu was likely to be released on bail cannot be ruled out is not enough and it only shows that there was no proper application of mind. This Court did not accept the said submission and has observed that nothing more could have been said by the Detaining Authority in this context. It is required to be noted that in the said decision the apprehension of the Detaining Authority came to be true as the detenu was released on bail. This Court refused to set aside the detention order on the aforesaid ground. It appears that the detenus were waiting for the setting aside of the detention orders on the ground that they are in custody and that there is no real apprehension that the detenus are likely to be released on bail.

¶400

As discussed earlier, the detention orders show the application of mind by the Detaining Authority based on the

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material available on record, facts and circumstances of the case, nature of activities and propensity of the detenus indulging in such activities. Therefore, in the facts and circumstances of the case, the High Court has erred in setting aside the detention orders on the ground stated hereinabove, namely, that there is a clear lapse and failure on the part of the Detaining Authority, to examine and consider the germane and relevant question relating to the imminent possibility of the detenus being granted bail, while recording its subjective satisfaction and passing the detention orders.

¶405

A Constitution Bench of this Court in the case of Rameshwar Shaw vs. District Magistrate, Burdwan-AIR 1964 SC 334 has observed and held that the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. It is further observed that therefore the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. Following the aforesaid decision of this Court, in the subsequent decision, in the case of N. Meera Rani v. Government of T.N. (1989) 4 SCC 418, in para 22, this Court observed and held as under:

¶406

“22.….Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision 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 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; but, even so, if the detaining authority is

¶407

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¶409

reasonably satisfied on cogent material 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 even in anticipation to operate on his release. This appears to us, to be the correct legal position.”

¶410

Thus, after appreciating a catena of precedential law, it was held by their Lordships that if the detaining authority was aware of the fact that the detenue was already in custody, he is likely to be released and nature of his activities indicate that if he is so released, he is likely to indulge in such prejudicial activities and, therefore, it is necessary to detain him, the order is valid. In the present case, the detaining authority has made following observations in this regard:

¶411

"9. I am aware that you i.e. Shri Piyush Naulakha are in judicial custody at present. However, there is possibility of your release from judicial custody and if you are released on bail, you are likely to continue to indulge in the prejudicial activities and, therefore, there is a need to continue detention order against you under COFEPOSA Act, 1974 with a view to prevent you from acting in manner prejudicial to the conservation of foreign exchange and preventing from abetting of smuggling of goods in future."

¶412

In the backdrop of aforesaid satisfaction of the detaining authority based on relevant considerations, this Court finds no merit in the submission of the learned senior counsel for the petitioner.

¶413

In this regard, the judgements relied upon by the learned senior counsel are of little assistance to him. In the case of Binod Singh (supra), it was held that when the actual order of detention

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was served upon the detenue, he was in jail and there was no communication in the order that this factor or the question that the detenue might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. It was further held that a bald statement is merely an ipse dixit of the officer and eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. Similar proposition was laid down in the cases of N. Meera Rani vs. Government of Tamil Nadu & Anr.-(1989) 4 SCC 418, A. Geetha vs. State of T.N.-(2006) 7 SCC 603, T.V. Sravanan vs. State-(2006) 2 SCC 664, Ramesh Yadav vs. District Magistrate, Etah-(1985) 4 SCC 232, Huidrom Konungjao Singh vs. State of Manipur-(2012) 7 SCC 18 and Champion R. Sangma vs. State of Meghalaya-(2015) 16 SCC 253. However, as already observed, in the instant case, there was enough relevant material before the detaining authority to arrive at the satisfaction that there was possibility of the petitioner being released on bail. Therefore, we reject the contention of Shri Chaudhri.

¶418

The detention order has further been assailed on the ground of it having been passed on vague and untenable ground, i.e., conservation of foreign exchange and abetting the smuggling which created confusion in the mind of detenue. It was submitted that so far as first aspect is concerned, there was no basis for the detaining authority to record his satisfaction as to how his activities have contravened any foreign exchange regulations. Qua second aspect, it was argued that although, the purpose

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mentioned was of "abetment to smuggling" whereas, in the ground of detention, it is mentioned that the detenue has indulged in "smuggling" which is distinct and different from “abetment to smuggling.”

¶423

However, we are not persuaded to countenance the aforesaid submissions. A perusal of the grounds of detention conveyed to the petitioner vide letter dated 08.10.2024 reveals the activities of the petitioner showing remittance of funds from various firms situated in India to overseas firms created by the petitioner to facilitate the money transfer in the name of digital services/online services without any corresponding import. In para 2 of the grounds of detention order, the detaining authority has specifically recorded that in view of the facts, circumstances, findings, corroborative evidence, which show adequately his role in the whole operation, he was satisfied that the petitioner is a habitual offender and plays a key role in arranging the setting up, running of entities for receiving overseas foreign exchange remittance from India against contrived imports and has close links using such funds in connection with various goods that are smuggled into India. It was further observed that the petitioner was a key member of a well organised smuggling syndicate involved in arranging and remittance of funds for smuggling with an observation that the petitioner was consciously aware that the firms and companies created and operated by him are opened and created with the sole intent to defraud the exchequer and have been used to remit amount against the illegally imported gold, diamond and precious stones. After recording his satisfaction in other paras of the grounds of detention, it was, ultimately, was recorded by the detaining authority that he was satisfied that

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there is a need to prevent the petitioner from acting into a manner prejudicial for conservation of foreign exchange and in view thereof, this Court finds no substance in the first aspect of the contention raised by the leaned senior counsel for the petitioner.

¶428

In so far as contention of learned senior counsel for the petitioner based on observation of the detaining authority in the grounds of detention as to his alleged activities amounting to "smuggling" is concerned, on perusal of the grounds of detention, this Court finds that in sum and substance, the observations constitute the allegation of abetting the smuggling against the detenue. In para 4 of the grounds of detention, it is observed "Shri Piyush Naulakha have an innate propensity to devise way and means for arranging the setting up, and running, of entities for receiving overseas the foreign exchange remittance from India against contrived imports, and your close link with using such funds in connection with various goods that are smuggled into India by adopting a variety of provisions related to making import and export to defraud the government of its revenue. You i.e. Shri Piyush Nolakha with the aid of your trusted associates is running a well-organised network and has established an efficient mechanism by arranging funds, remittance of funds through the firms/companies created and operated by you for smuggling of Gold, diamond, precious stones and other goods. Considering the frequency and quantum of illegal overseas remittance in an organized manner, it is likely that the syndicate in which you i.e. Shri Piyush Nolakha play a key role, have been successful in smuggling on a large scale thereby participated in activities that has caused deleterious effect on the national economy and inflicted a serious adverse effect on the security of the State.

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In para (vii) of the detention order, it is observed as under:

¶433

"Thereafter, in your statement dated 24.07.2024 Shri Piyush Nolakha i.e. you admitted that M/s. D.P. Designs Ltd., Hong Kong is a dummy firm registered on papers only with declaring service provider and it was handed over to Mr. Ashish Jain and others for the sake of commission."

¶434

In para (viii), it was held that the petitioner admitted in his statement dated 25.07.2024 that he has created various firms at Hongkong as also at Jaipur which were handed over to Ashish and others for import of precious stones form his Hongkong based firm.

¶435

In para (x) of the detention order, it was observed that his statement dated 27.07.2024 revealed that various persons/companies in India required funds overseas for various purposes such as gold, bullion traders, marble imports, diamond imports etc. for funding their illegal import of goods, under valuation of goods for import and for this purpose, they needed firms overseas which could facilitate money transfer which were created by the petitioner at Hongkong which used to get inward remittance of funds from various firms situated in India in the name of Digital services/online services without import of any such services.

¶436

In para (xi), the detaining authority observed that the petitioner has admitted that the funds received through hawala have been utilised by various firms/persons for funding their illegal import of goods/under valuation of imported goods. It was also observed that the petitioner has admitted that the persons namely; Ashish Jain, Manish Lodha, Rajesh Chopra have a nexus overseas too and they have illegally brought diamond, gold from

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overseas to India through smuggling route with assistance of their wide nexus; the exact route is not known to the detenue but they have informed the petitioner that they smuggled diamond and gold from funds remitted through two firms.

¶441

In para 6 of the grounds of detention, it was observed as under:

¶442

"6. In view of the facts and circumstances explained above, I have no hesitation in concluding that you i.e. Shri Piyush Nolakha played a vital role by arranging funds, remittance of funds which have been used for smuggling of Gold, diamond, precious stones and other goods being consciously aware that the firms/companies created and operated by you are opened and created with the sole intent to defraud the exchequer and have been used to remit amount against the illegally imported impugned goods. Investigations done by Customs (Preventive), Jodhpur clearly establish your continued propensity and inclination to indulge in act prejudicial to the conservation of foreign exchange and abetting the smuggling of goods of arranging funds, remittance of funds in a planned manner to the detriment of the economic security of the country and that unless prevented you i.e. Shri Piyush Nolakha will continue to do so. Further considering the nature and gravity of offence in an organized manner in which you i.e. Shri Piyush Nolakha have engaged yourself in such prejudicial activities and your role therein, all of which reflect your high potentiality and propensity to indulge in such prejudicial activities in future, I am satisfied that there is a need to prevent you from acting in a manner prejudicial to the conservation of foreign exchange and preventing you from abetting the smuggling of goods. Hence, you i.e. Shri Piyush Nolakha ought to be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 with a view to preventing you from acting in manner prejudicial to the

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conservation of foreign exchange and preventing from abetting the smuggling of goods in terms of Section 3(1) of the COFEPOSA Act, 1974."

¶447

The conspectus of the aforesaid observations, unequivocally reveals that the petitioner was a key member of a well organised syndicate and was a key member in abetment of smuggling of gold, diamond, precious stones and other goods and there was no variance in the purpose of the detention order vis-a-vis its grounds. The reliance placed by the learned senior counsel for the petitioner on the judgment in the case of Vijay Kumar Dharna (supra) is misplaced. In the aforesaid case, there was difference in grounds of detention in the gurumukhi version of the detention order vis-a-vis, its English version.

¶448

Even otherwise, a three-Judges Bench of the Hon'ble Supreme Court of India in the case of Narendra Purshottam Umrao vs. B.B. Gujarat & Ors.-(1979) 2 SCC 637 : 1978 (0) Supreme SC 364 , in almost identical circumstances, held as under:

¶449

"25. Learned counsel for the appellant next strenuously contends that there was non-application of mind on the part of the detaining authority. It was submitted that though the order for detention was made with a view to preventing the appellant from smuggling goods, i.e., under clause (i) of sub-section (1) of Section 3 of the Act, his case on the facts revealed in the grounds for detention clearly fell under clause (ii) of sub-section (1) of Section 3, as he could not, by any stretch of imagination, be treated to be a smuggler but he was only an abettor. May be, he instigated, organised and facilitated the act of smuggling, but it is said, the actual smuggling of the contraband goods, was by others. His act, therefore, constituted abetment of smuggling for which there is a separate clause under

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Section 3(1)(ii). The order of detention cannot, therefore, be justified under Section 3(1)(i). Applying a wrong clause, it is urged, shows non-application of mind. We are afraid, the learned counsel is stretching the argument too fine.

¶454

Section 3(1) of the Act, so far material, reads:

¶455

The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-

¶456

(i) smuggling goods, or

¶457

(ii) abetting the smuggling of goods, or;

¶458

There is, no doubt, a distinction between an act of smuggling and abetting the smuggling of goods for purposes of preventive detention under Section 3(1) of the Act. Nonetheless, the term "smuggling" as defined in Section 2(e) of the Act has the same meaning as in Section 2(39) of the Customs Act, 1962, which, when read with Section 111 of that Act, is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling of contraband goods as well, as all persons dealing in such goods, etc. Though the provisions of clauses (i) and (ii) of sub-section (1) of Section 3 of the Act may operate on different fields, which may sometimes, as here, overlap, still a wider meaning is given to the term 'smuggling in Section 2(e) of the Act, with a

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view to broaden the scope of preventive detention. Sub-section (1) of Section 3 of the Act provides for the different grounds of detention. Clause (i) relates to smuggling of goods, Clause (ii) relates to abetting the smuggling of goods, Clause (iii) relates to engaging in transporting or concealing or keeping smuggled goods, Clause (v) relates to harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. It must, therefore, be assumed that the intention of the legislature was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct, and both are separate grounds for detention, i.e., to take in all such activities which result in accomplishment of smuggling of contraband goods. "

¶463

After analysing the contents of the grounds of detention, it was held in para no.34 of the judgement as under:

¶464

"34. It is manifest that the appellant could in the instant case be detained under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such clause (i) of Section 3(1) of the Act was properly invoked."

¶465

In the backdrop of aforesaid precedential law also, we are not inclined to accept the submission made by the learned senior counsel for the petitioner.

¶466

The next ground of challenge by the detenue would not hold us long inasmuch as it is wholly misconceived and misplaced. It

[2025:RJ-JP:9111-DB]

[HC-22/2025]

(75 of 91)

was argued that since, at the time the detention order was passed, neither any prosecution complaint was filed, nor any show cause notice of adjudication was issued, in view of the inconclusive and inchoate investigation, the detention order is not sustainable. This submission is based on judgement of the Hon'ble Supreme Court in the case of Pooja Batra (supra).

¶471

Although, the power of detention in absence of launch of prosecution or adjudication is not even disputed by the learned senior counsel for the petitioner; but, he failed to elaborate his submission that the state of inconclusive investigation exposes the malice in law as well as malice in fact. It is trite law that the nature of preventive detention falls in the realm of "jurisdiction of suspicion" and launching of parallel criminal proceeding along with the issuance of order of preventive detention is not the need of the law. Reliance placed by the learned senior counsel for the petitioner in para no.28 of the case of Pooja Batra is misconceived inasmuch as the observations are made in entirely different factual scenario. Therein, the detaining authority heavily relied upon the eight bills of entry other than the bill of entry no.589144 dated 25.04.2007 while passing the detention order whereas, even according to the respondent department, the consignments under the eight bills were cleared under proper orders by the authorities concerned admitting the case set up by the detenue. In the aforesaid factual background, the Supreme Court held as under:

¶472

"28. It is also not in dispute that on the date of the passing of the detention order the authorities have issued notice calling for certain details in respect of import of those eight consignments. In other words, the said issue has not concluded and no adverse finding against him is passed on

¶473

(76 of 91) [HC-22/2025]

¶474

[2025:RJ-JP:9111-DB]

¶475

the date of the passing of the detention order. In such circumstances, we are of the view that “inconclusive state of investigation” cannot legitimately help the authorities to pass an order of detention against the detenu on the perfunctory and inchoate material relied upon."

¶476

However, in the instant case, no such situation obtains.

¶477

We find no merit in this submission of Shri Chaudhri, learned senior counsel for the petitioner assailing the validity of the detention order on the ground of discrimination qua the other accused persons involved in the offence. A perusal of the grounds of detention reveal that the petitioner was found to be king-pin of the syndicate involved in arranging and remittance of funds for smuggling of gold, diamond, precious stones and other goods. Looking to his regular activities prejudicial to the economic interest of the nation and his innate propensity to indulge in such activities in future, the preventive detention order came to be passed against him. Since, as per the respondent, the petitioner was king pin of the syndicate, mere non-action against other member(s) under Section 3 of the COFEPOSA Act, does not render the detention order against the petitioner, which is based on relevant consideration, invalid in the eye of law. Their Lordships have, in the of Yogendra Murari vs. State of U.P. & Ors.-1988 (3) Crimes (SC) 174; 1988 SCC (Crime) 992 dealing with an identical situation, held as under:

¶478

"There is no merit whatsoever in the petitioner's grievance of discrimination on the ground that the other co-accused persons have not been detained. The role of the petitioner and that of the others are not identical and the reasonable apprehension as to their future conduct must depend upon the relevant facts and circumstances which differ from individual to individual. It would have been wrong on the part of the detaining authority to take a uniform decision

(77 of 91)

[2025:RJ-JP:9111-DB]

[HC-22/2025]

in this regard only on the ground that the person's concerned are all joined together as an accused in a criminal case."

¶483

The Hon'ble Punjab and Haryana High Court in the case of Balwant Singh vs. State of Punjab-(1986) 3 Crimes 629 , held as under:

¶484

“The second point, though not necessarily to be decided, is with regard to the alleged discrimination between the petitioner and a few others who were said to be along with him in the prejudicial activity of smuggling opium from Pakistan. It is urged that those persons were not put to preventive detention. At one point of time, it was asserted that those persons had been released by the Advisory Board. However, on information sought, it was discovered that those persons had not been detained under the Act (COFEPOSA) at all. I fail to see how a ground of discrimination can be raised in a preventive detention. Every case of preventive detention is an individual case – something between the State and the detainee. The subjective satisfaction for detaining a person, entertained by the Detaining Authority may differ from person to person similarly engaged in the prejudicial activities. This contention is without merit and is thus repelled.”

¶485

In the backdrop of aforesaid precedential law, we are not inclined to hold that the subject detention order deserves to be quashed and set aside merely because no such action was taken against co-accused persons.

¶486

In this regard, reliance placed by the learned senior counsel for the petitioner on the judgement in the case of Pramod Singla (supra) is of no help to him. In that case, the detention order was quashed by the Hon'ble Supreme Court on the ground of parity inasmuch detention order qua another co-detenue with identical circumstances, was already quashed.

¶487

(78 of 91) [HC-22/2025]

¶488

[2025:RJ-JP:9111-DB]

¶489

Submission of the learned senior counsel for the petitioner as to the rejection of the representations by the appropriate government on 04.11.2024 being against the mandate of judgement in the case of Ankit Ashok Jalan (supra) and the letter dated 13.11.2024 suffering from the inherent inconsistency, do not merit acceptance. A holistic reading of the judgement in the case of Ankit Ashok Jalan (supra) does not lead to a conclusion that in all the eventualities, it is obligatory for the appropriate government to wait till the report is received from the Advisory Board. In that case, the questions for consideration were spelled out in para no.10 which read as under:

¶490

“10. The following questions therefore arise:-

¶491

10.1 (i) Whether the detaining authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board?

¶492

10.2 (ii) Whether the detaining authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board?

¶493

10.3 (iii) If the answer to the second question is yes, whether the time taken by the Detaining Authority from 27.11.2019 till 14.01.2020 could be characterised as undue and avoidable delay violating the constitutional rights of the detenues?”

¶494

In para 11, their Lordships held as under:

¶495

The learned counsel appearing for the parties placed for our consideration various decisions of this Court touching upon the aforesaid first two questions. We may broadly consider those decisions for answering the questions from two perspectives:-

¶496

11.1 First, on the issue whether a representation can independently be made to and must be considered by the

(79 of 91)

[2025:RJ-JP:9111-DB]

[HC-22/2025]

detaining authority, who is a specially empowered officer of the Government concerned.

¶501

11.2 Secondly, whether, in certain circumstances, the detaining authority ought to defer consideration of such representation till the report is received from the Advisory Board.”

¶502

After scanning a catena of precedents, it was held as under:

¶503

“16. These decisions clearly laid down that the consideration of representations by the appropriate Government and by the Board would always be qualitatively different and the power of consideration by the appropriate Government must be completely independent of any action by the Advisory Board. In para 12 of the decision in Pankaj Kumar Chakrabarty vs. State of W.B.-(1969) 3 SCC 400, it was stated that the obligation on the part of the Government to consider representation would be irrespective of whether the representation was made before or after the case was referred to the Advisory Board. As stated in para 18, this was stated so, as any delay in consideration of the representation would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional. The contingency whether the representations were received before or after was again considered in para 29 of the decision in Haradhan Saha vs. State of W.B.-(1975) 3 SCC 198.

¶504

In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in the following four categories:-

¶505

17.1 If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form

[HC-22/2025]

[2025:RJ-JP:9111-DB]

(80 of 91)

part of the documents to be placed before the Advisory Board.

¶510

17.2 If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul vs. State of W.B.-(1970) 1 SCC 219 and Haradhan Saha vs. State of W.B.-(1975) 3 SCC 198, the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation.

¶511

17.3 If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha vs. State of W.B.-(1975) 3 SCC 198, the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board.

¶512

17.4 If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition.

¶513

There can be no difficulty with regard to the applicability of the principles in the 1st and the 4th stage of the aforesaid categories. The difficulty may arise as regards the application of principles at the 2nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in Jayanarayan Sukul (supra) and Haradhan Saha (supra) as stated hereinabove. If it is well accepted that the representation must be considered with utmost expedition; and the power of the Government is completely independent of the power of the Advisory Board; and the scope of consideration is

(81 of 91)

[2025:RJ-JP:9111-DB]

[HC-22/2025]

also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board. None of the aforesaid cases even remotely suggested that the consideration must await till the report was received from the Advisory Board.

¶518

However, it was for the first time that the decision in K.M. Abdulla Kunhi vs. Union of India-(1991) 1 SCC 476 laid down in paragraph 16 that it would be proper for the Government in the two situations dealt with in the said paragraph to await the report of the Board; those two situations being:-

¶519

19.1. Where the representation is received before the matter is referred to the Advisory Board and where there may not be sufficient time to dispose of the representation before referring the case to the Advisory Board, and 19.2. Where the representation is received after the case is referred to the Advisory Board. It was also laid down:-

¶520

“In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board.”

¶521

Since the decision of this Court in K.M. Abdulla Kunhi (supra) was rendered by the Constitution Bench of this Court after considering all the earlier decisions on the point including those in Pankaj Kumar Chakrabarty (supra), Jayanarayan Sukul (supra) and Haradhan Saha (supra), we are bound by the principles laid down therein. When the learned counsel for the petitioner were so confronted, it was submitted by them that the decision in K.M. Abdulla Kunhi (supra) dealt with the matter relating to the consideration of representation by the appropriate Government and not in the context where power of detention was exercised by a specially empowered officer as the detaining authority. According to them, that would make a huge difference and put the matter in a qualitatively different compass.

¶522

(82 of 91) [HC-22/2025]

¶523

[2025:RJ-JP:9111-DB]

¶524

We are conscious that the view that we are taking, may lead to some incongruity and there could be clear dichotomy when the representations are made simultaneously to such specially empowered officer who had passed the order of detention and to the appropriate Government. If we go by the principle in para 16 in K.M. Abdulla Kunhi (supra), it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the specially empowered officer who had acted as the detaining authority would be obliged to consider the representation with utmost expedition. At times a single representation is prepared with copies to the Detaining Authority, namely, the specially empowered officer and to the appropriate Government as well as to the Advisory Board. In such situations there will be incongruity as stated above, which may be required to be corrected at some stage. However, such difficulty or inconsistency cannot be the basis for holding that a specially empowered officer while acting as a detaining authority would also be governed by the same principles as laid down in paragraph 16 of K.M. Abdulla Kunhi (supra).”

¶525

Thus, the aforesaid judgement provides that as per the principle laid down by the Constitution Bench in para no.16 of the judgement in the case of K.M. Abdulla Kunhi, it would be proper for the appropriate government to wait till the report is received from the Advisory Board. In Kunhi’s case, the State Government passed two separate orders of detention on 24.02.1989 against the petitioners under the Act of 1974. On 17.4.1989, the detenues made representations to the Government which could not be immediately considered since they required translation, collection of information and comments from the different authorities. In the meantime, the case was referred to the Advisory Board which, in

¶526

(83 of 91) [HC-22/2025]

¶527

[2025:RJ-JP:9111-DB]

¶528

its meeting dated 20.04.1989, considered the case of detenues and reported that there was sufficient cause for their detention. On 27.04.1989, the government, accepting the report, confirmed the detention order. On 07.05.1989, the government considered and rejected the representation of the petitioner Abdulla Kunhi and the representation of Mohammad Ali was likewise considered and rejected on 06.05.1989. The Constitution Bench was examining the validity of the detention order. In para no.5 of the judgment, the question framed by their Lordships was whether confirmation of detention order upon accepting the report of Advisory Board renders itself invalid solely on the ground that the representation of the detenue was not considered and the subsequent consideration of the representation would not cure with invalidity. In para 11 of the judgement, it was held as under:

¶529

“11. It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time

(84 of 91)

[2025:RJ-JP:9111-DB]

[HC-22/2025]

of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is, safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22 read with Section 8(c) of the Act. (See: SK Abdul Karim & Ors. vs. State of W.B.- [1969] 1 SCC 433; Pankaj Kumar Chakrabarty & Ors. vs. State of West Bengal, [1970] 1 SCR 543; Shayamal Chakraborty vs. Th Commissioner of Police, Calcutta & Anr.-[1969] 2 SCC 426; B. Sundar Rao & Ors. vs. State of Orissa-[1972] 3 SCC 11; John Matrin v. State of West Bengal, [1975] 3SCR 211; S.K. Sekawat v. State of West Bengal, [1983] 2 SCR 161 and Haradhan Saha & Anr. Vs. State of West Bengal & Ors.[1975] 1 SCR 778. ”

¶534

Their Lordships, further considering the case of Frances Coralie Mullin vs. W.C. Khambra-(1980) 2 SCC 275 wherein, the detenue’s representation received by the detaining authority on 26.12.1979, remitted to the customs authorities for their remarks which were received on 04.01.1980 and since the Advisory Board was meeting on the same day, it was held that the government had no time to consider the representation before the Board met unless it was done in a great and undue haste, held in para 16 of the judgement as under:

¶535

“16. We agree with the observations in Frances Coralie Mullin case- (1980) 2 SCC 275 . The time imperative for consideration of representation can never be absolute or

¶536

(85 of 91) [HC-22/2025]

¶537

[2025:RJ-JP:9111-DB]

¶538

obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of the High Court. It is, therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible. ”

¶539

[2025:RJ-JP:9111-DB] (86 of 91) [HC-22/2025]

¶540

Thus, from the aforesaid observations, it is revealed that only in two eventualities, the Constitution Bench held, that it would be proper for the Government to consider the representation only after receipt of the report of the Board, i.e., one, where the representation is received before the case is referred to the Advisory Board; but, there is no time to dispose it off before referring the case to the Board in which eventuality, the representation must also had to be forwarded to the Advisory Board along with the case of the detenue and the second, where the representation is received after the case of the detenue is referred to the Board; but, the Board has not concluded the proceedings. Indisputably, no such situation obtains in the instant case.

¶541

As already held, the petitioner’s representation was received by the respondents on 18.10.2024 and his wife’s representation was received on 21.10.2024, comments from the sponsoring authority were sought and after examining the same in the light of material available on record, the appropriate authority disposed of the same vide order dated 04.11.2024 before the matter was referred to the Advisory Board. Therefore, we do not find violation of the mandate in the case of Ankit Ashok Jalan.

¶542

We are also not convinced with the submission made by Shri Chaudhri as to the letter dated 13.11.2024 suffering from the vice of inherent contradiction. There is no dichotomy in it which simply says that the representations filed by the petitioner as well as by his wife were disposed of by the Central Government vide memorandum dated 04.11.2024 as per the judgement in the case of Ankit Ashok Jalan which, as already observed, did not mandate

¶543

(87 of 91) [HC-22/2025]

¶544

[2025:RJ-JP:9111-DB]

¶545

the appropriate government to wait for opinion of the Advisory Board before deciding the representation in all the eventualities.

¶546

So far as the question of delay in deciding the representations is concerned, we find that there was inordinate and unexplained delay on the part of the appropriate government to decide the representations filed by the petitioner and his wife even if we hold that there was no delay on the part of the detaining authority in deciding the same. From the admitted facts, it is apparent that representation of the detenue addressed to the detaining authority, the Central Government and the Chairman, Advisory Board was received in the COFEPOSA wing of CEIB on 18.10.2024. Comments of the sponsoring authority were sought without delay which was received in the COFEPOSA Wing on 24.10.2024. As per the additional affidavit dated 16.04.2025 of Shri Sunil Bareja, the Deputy Secretary to the Government of India, CEIB, the comments received from the sponsoring authority were considered in the office of the detaining authority on 25.10.2024. 26^th and 27^th October, 2024 being holidays of Saturday and Sunday respectively, on 30^th October, 2024, the entire material was placed before the detaining authority to consider the representation in the light of material placed before him who disposed of the same on the very same day. Similarly, the representation filed by the petitioner’s wife was received in the COFEPOSA Wing on 21.10.2024, comments from the sponsoring authority on it were received in the office of detaining authority on 25.10.2024 and along with representation filed by the petitioner, the same was also considered and disposed of by the detaining authority on 30.10.2024 itself. In view thereof, we are not

¶547

[2025:RJ-JP:9111-DB]

¶548

(88 of 91) [HC-22/2025]

¶549

convinced that there was any delay in disposal of the representations of the petitioner and of his wife by the detaining authority. However, we are not satisfied that the appropriate government acted with the requisite promptitude in deciding the representations. As per the respondents, the comments of the sponsoring authority along with representation were remitted to the appropriate government by the COFEPOSA Wing on 30.10.2024 after rejection of the representations by the detaining authority. It is trite law that the detaining authority and the appropriate authority are to consider the representation separately and independently. No reason is forthcoming from the respondents as to why comments of the sponsoring authority which, on the petitioner’s representation were received on 24.10.2024 and on his wife’s representation were received on 25.10.2024, were not remitted to the appropriate government immediately thereafter and why did the respondents wait till the decision of the detaining authority on 30.10.2024 before sending the same to the appropriate government. The only excuse offered by the learned ASG that since, in the meanwhile, representation of the petitioner’s wife was also received, they decided to take a decision upon both the representations, i.e., petitioner’s and his wife’s, simultaneously, does not merit acceptance for the following reasons:

¶550

Firstly, petitioner’s wife representation was received in the COFEPOSA Wing on 21.10.2024 and on 22.10.2024, it was forwarded to the sponsoring authority for comments. As already observed, the comments from the sponsoring authority on petitioner’s representation were received on 24.10.2024 and on

¶551

(89 of 91) [HC-22/2025]

¶552

[2025:RJ-JP:9111-DB]

¶553

his wife’s representation were received on 25.10.2024. Both the representations along with comments of the sponsoring authority were forwarded to the detaining authority immediately thereafter which were considered and disposed of on 30.10.2024. No explanation is offered as to why the same were not forwarded to the appropriate government simultaneously while forwarding the same to the detaining authority.

¶554

Secondly, learned ASG could not bring to our notice any legal requirement to decide the representation filed by the detenue as also by his/her relative simultaneously. Even otherwise, keeping in view the laud object behind the constitutional and statutory scheme conferring a valuable right upon the detenue to get his/her representation decided with promptitude, it is imperative that the representations are decided at earliest as and when received without waiting for other representation either by the detenue and/or relative lest it may lead to delay. There may be a situation wherein, the representation filed by the detenue/relative is on the verge of decision by the detaining authority/appropriate government and a fresh representation is received either from the detenue or by the relative. Whether the mandate of law obliges the authority to defer the decision on the earlier representation and to decide both/all the representations received on different points of time, simultaneously. To our considered view, the answer is `No’. At the cost of repetition, it is held that in view of constitutional and statutory mandate to decide the representation with utmost promptitude, the authority is bound to decide the representation

[HC-22/2025]

[2025:RJ-JP:9111-DB]

(90 of 91)

at the earliest, separately and independently of other representation(s).

¶559

Thirdly, from the additional affidavit dated 16.04.2025, it is reflected that the respondents waited for decision of the detaining authority before forwarding the representations, the comments thereupon by the sponsoring authority and the other relevant material to the appropriate government whereas, the constitutional and statutory scheme does not stipulate so. Consideration of the representation by the detaining authority and by the appropriate government operates in different sphere independent to each other and both are under an obligation to decide the same with utmost expediency.

¶560

A three-Judges Bench of the Hon’ble Supreme Court of India in the case of Jaseela Shaji vs. Union of India & Ors.-(2024)

¶561

9 SCC 53 held that the competent authority has to decide the representation with utmost expedition so that the valuable right guaranteed to the detenue under Article 22(5) of the Constitution is not denied. It was further held that in the matter pertaining to personal liberty of the citizens, the authorities are enjoined with a constitutional obligation to decide the representation with most expedition each day’s delay matters in such a case.

¶562

As already held, in the instant case, after receipt of the comments from the sponsoring authority on the representation filed by the detenue on 24.10.2024 and on his wife’s representation on 25.10.2024, it took some time by the COFEPOSA Wing to examine the representations, the comments thereupon and the material available on record to prepare its own comments.However, there was no justification for the respondents

¶563

[2025:RJ-JP:9111-DB]

¶564

(91 of 91) [HC-22/2025]

¶565

not to remit the same to the appropriate government simultaneously while remitting the same to the detaining authority for its consideration and why did they wait till decision of the detaining authority. Therefore, this unexplained delay is fatal to the continuation of the detention order.

¶566

Resultantly, the habeas corpus petition is allowed. The detention order dated 08.10.2024 is quashed and set aside and the petitioner is directed to be released from detention forthwith, if not warranted in any other case.

¶567

(ASHUTOSH KUMAR),J (MAHENDAR KUMAR GOYAL),J

¶568

RS/C1

Piyush Naulakha S/O Sh. Shri Chand Naulakha v. Union of India

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Piyush Naulakha S/O Sh. Shri Chand Naulakha v. Union of India

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