Delhi High Court
Pradeep Kumar Nehra vs Union Of India & Ors. on 23 December, 2024
Author: Amit Sharma
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Reserved on: 29th November, 2024
Pronounced on: 23rd December, 2024
+ W.P.(CRL) 2332/2024
SHRI PRADEEP KUMAR NEHRA .....Petitioner
Through: Ms. Sangita Bhayana, Advocate
(M: 9810026768).
Versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Anil Soni, CGSC for UOI
(M: 8285815626).
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition has been filed by the Petitioner – Pradeep
Kumar Nehra (‘detenu’) under Article 226 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure, 1973 (in
short ‘CrPC‘) seeking quashing of the preventive detention order
bearing F. No. PD-12002/01/2024-COFEPOSA dated 12th April, 2024
passed under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (in short
‘COFEPOSA Act‘), by the Joint Secretary (COFEPOSA) i.e.,
Respondent No.2, thereby ordering the detention of the Petitioner.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 1 of 29
Signing Date:23.12.2024
19:07:26
2. The relevant facts for the purpose of adjudication of the present
petition are as under: –
i. It is alleged that the present Petitioner arrived at Jaipur on
11th January, 2024 upon travelling from Sharjah to Jaipur by Air
Arabia. On the basis of suspicious behavior of the Petitioner, a
personal search was conducted by Customs officers and a notice
was served upon the Petitioner under Section 102 of the
Customs Act, 1962 (in short, ‘Customs Act‘). During the said
search, certain metal was recovered from the sandals worn by
the Petitioner. Upon investigation by a valuer, the said metal
was found to be gold with 99.50 purity, weighing 2466.00
grams and valued at Rs. 1,57,82,400/- (Rs. One Crore Fifty-
Seven Lakhs Eighty-Two Thousand Four Hundred only) as per
valuer’s Report No. 02/CUST/Jan/2324 dated 11th April, 2024.
ii. Thereafter statement of the Petitioner was recorded under
Section 108 of the Customs Act, and he revealed that he has
been involved in the business of marble and granite and that he
regularly visits Sharjah and this was the first instance when he
tried to smuggle gold in order to avoid customs duty.
iii. The Petitioner in his statement also disclosed that he had
bought this gold from a shop named “YASS GOLD” based in
Dubai. Upon further enquiry, the Petitioner revealed that he,
along with one Mr. Mustafa and Mr. Vishal Sawant, who are
residents of Hyderabad, were part of a smuggling syndicate and
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 2 of 29
Signing Date:23.12.2024
19:07:26
a substantial amount of foreign origin gold was smuggled by
them into India.
iv. It is alleged that upon forensic examination of the
electronic devices belonging to the Petitioner which were seized
by Customs officers upon his arrival at the Jaipur Airport,
substantial incriminating materials were found against him. It is
alleged that the Petitioner, with the aid of his trusted associates
is running a well-organized network and has established an
efficient mechanism of smuggling, concealing, possessing,
carrying and dealing with substantial quantities of foreign-
origin gold in its primary form.
v. On the basis of the alleged involvement of the Petitioner
in the said activities, he was arrested on 12th January, 2024
under Section 104 of the Customs Act for committing acts in
contravention of Sections 132, 135(1)(a) and 135(1)(b) of the
Customs Act.
vi. Thereafter, the Petitioner filed his first bail application
before the learned Economic Offences Court which was
rejected vide order dated 22nd January, 2024. Subsequently, the
bail application filed before the learned Sessions Court, Jaipur
was also rejected vide order dated 24th January, 2024. Aggrieved
by the order passed by the learned Sessions Court, the Petitioner
filed a bail application before the Hon’ble Rajasthan High
Court, which was rejected vide order dated 09th February, 2024.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 3 of 29
Signing Date:23.12.2024
19:07:26
vii. Second bail application was preferred by the Petitioner
before the learned Economic Offences Court and the same was
rejected vide order dated 14th March, 2024. Another bail
application was filed before the learned Sessions Court, Jaipur,
however, he was not granted any relief by the learned Sessions
Court either. Finally, second application for bail before the
Hon’ble Rajasthan High Court was moved and the same was
rejected vide order dated 03rd April, 2024.
viii. Based on the proposal from the Sponsoring Authority,
i.e., Commissioner of Custom (Preventive), Jodhpur, the
impugned detention order was passed by the detaining authority
i.e., Respondent No.2 on 12th April, 2024 and it was
communicated to the Petitioner on the same day by the Jail
Authorities. Thereafter, the said detention order was placed
before the State Advisory Board (COFEPOSA), Rajasthan High
Court for consideration.
ix. It is pertinent to note that the Petitioner had filed a
representation before the said Advisory Board, however, the
same was rejected. Subsequently, upon submission of the report
by the Advisory Board, Central Government invoked powers
conferred under Section 8(f) of the COFEPOSA Act and
confirmed the detention of the Petitioner on 18th June, 2024.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 4 of 29
Signing Date:23.12.2024
19:07:26
3. The facts with respect to the present case have been discussed
in detail by the Detaining Authority/Respondent No.2 in the impugned
detention order and the same are reproduced as under: –
“i. Shri Pradeep Kumar Nehra S/o Shri Harphool Singh Nehra,
R/o F-71, Industrial Area, Jaipur Road, Sikar, Rajasthan having
Passport No. Z5413210 and Z3079231 i.e. you arrived from
Sharjah to Jaipur by Air Arabia Flight No. G-9-435 on
11.01.2024 at about 03:30 hrs. When you approached the X-ray
gate, customs officers asked you whether you had any dutiable
goods with you, in reply to which you denied carrying any such
goods. You had filed a Nil declaration under Section 77 of the
Customs Act, 1962. Based on suspicious behaviour, Customs
officers decided to conduct personal search of Shri Pradeep
Kumar Nehra i.e. you and served upon a Notice under Section
102 of the Customs Act, 1962. During the personal search,
nothing objectionable was found/ recovered. Thereafter, the
Customs officials checked the sandals of Shri Pradeep Kumar
Nehra i.e. you on the x-ray machine and saw the dark black
image in your two brown colour sandals which appeared heavy
in weight. Both of your sandals appeared to have a paste of metal
covered in transparent polythene with black coloured tapes, one
each on the bottom of the sole. Thereafter, the customs officers
called valuer Shri Lokesh Kumar Kasliwal to check the type of
said metal, its purity, quantity and conduct its valuation. After
investigation, Shri Kasliwal declared the said metal to be gold
and extracted fifteen pieces of gold of 99.50 percent purity
weighing 2466.00 grams valued at Rs. 1,57,82,400/- (Rs. One
Crore Fifty Seven Lakhs Eighty Two Thousand Four Hundred
only) as per valuer’s Report No. 02/CUST/Jan/2324 dated
11.01.2024.
ii. Two mobile phones recovered from Shri Pradeep Kumar
Nehra i.e. you- one iPhone 13 Pro Max and one Samsung Galaxy
A20s were seized under Section 110 of the Customs Act, 1962 to
get them forensically examined. Gold having 2466.00 grams of
99.50 percent purity and worth of Rs. 1,57,82,400/- smuggled by
Shri Pradeep Kumar Nehra i.e. you for the purpose of evading
Customs duty, which was eligible for confiscation under Section
111 of the Customs Act, 1962 was seized under Section 110(1)
for the Customs Act, 1962. Both the brown coloured sandals
used to conceal the gold and black tape which were in
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 5 of 29
Signing Date:23.12.2024
19:07:26
transparent polythene were also considered liable for seizure
under Section 119 of the Customs Act, 1962.
iii. Thereafter, statement of Shri Pradeep Kumar Nehra S/o Shri
Harphool Singh Nehra i.e. you was recorded under Section 108
of the Customs Act, 1962. In your statement dated 11.01.2024
Shri Pradeep Kumar Nehra i.e. you stated that you have been
doing marble/granite work in both Sharjah and Sikar for the last
fifteen years. You have a company in Sikar i.e. M/s Shri Krishna
Granite, F-71, Industrial Area, Jaipur Road, Sikar which has been
closed since around ten years ago. i.e. You also have two firms in
Sharjah viz. M/s India Shapes Marbles and M/s APS Sports
Event Management. Income from both the firms is around ten to
twenty lakhs INR monthly. You further stated that you keep
visiting Sharjah and for the first time you had brought the gold
hidden in sandals with the intention of not paying the customs
duty. This gold which was in the form of paste metal belongs to
you only. You yourself bought this gold in the form of paste
metal from a shop by the name of YASS GOLD which is in
Dubai. Mustafa, a 42 years old resident of Hyderabad who is
involved in the work of smuggling and lives in Sharjah told you
about this shop. Mustafa used to take money from Shri Pradeep
Kumar Nehra i.e. you and make profit by smuggling gold and
gave some part of the profit back to Shri Pradeep Kumar Nehra
i.e. you. You stated that Mustafa has sent gold through
Hyderabad airport in India about five times and submitted that
you do not know who brought the gold to Hyderabad airport
because Mustafa used to do all that work. You further told that
the work of receiving gold at Hyderabad airport is done by a
person namely Shri Vishal Sawant (mobile No. 7889195285)
aged about 42 years whom you have never met. Shri Pradeep
Kumar Nehra i.e. you told that you were coming to Sikar to
attend a meeting on sports matter when Mustafa told you that the
person who was supposed to carry gold to Hyderabad airport
refused to take the gold at the last moment. Since you were
coming to India and the gold was in paste form, at Mustafa’s
insistence you agreed to smuggle the gold with the intention of
not paying customs duty. Therefore, on Mustafa’s advice, you
brought the gold in paste form hiding it in the soles of both of
your sandals and was caught by the Customs officials at Jaipur
International Airport. Thus, Shri Pradeep Kumar Nehra i.e. you
confessed in your statement that he smuggled gold to India due
to your need for money and greed.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 6 of 29
Signing Date:23.12.2024
19:07:26
iv. Follow up search was conducted by Customs Jaipur at the
ancestral residence of Sh Pradeep Kumar Nehra S/o Sh Harphool
Singh Nehra i.e. you, Village Katrathal, Distt-Sikar and M/s Shri
Krishna Granite, F-71, Industrial Area, Jaipur Road, Sikar,
nothing incriminating was found in the aforementioned premises.
v. In your statement dated 12.01.2024, Shri Pradeep Kumar
Nehra i.e. you admitted that in the last five -six months, you have
smuggled gold five times through Hyderabad airport; out of
which twice it was concealed in Iron (2500 grams per iron), once
as paste in shoes (1500 grams) & twice 2000 grams hidden in
undergarments. Shri Mustafa asked you to get involved in gold
smuggling around one and half year ago. Mustafa asked to
borrow some money from Shri Pradeep Kumar Nehra i.e. you on
interest. Mustafa told Shri Pradeep Kumar Nehra i.e. you that he
will use this amount in smuggling of gold and will return the said
amount along with interest at the end of the month to you. Shri
Pradeep Kumar Nehra i.e. you agreed and Mustafa borrowed
money from you and returned the same from time to time for
about one year. Shri Pradeep Kumar Nehra i.e. you admitted that
you got involved in smuggling work with Mustafa around 4-5
months ago. On being asked about a contact No. in your phone
pertaining to Shri Vishal Nayan Gold Hyderabad and your chats
with Shri Vishal containing photographs of money transactions,
currency notes and gold items, Shri Pradeep Kumar Nehra i.e.
you stated that Shri Vishal helps Shri Mustafa in smuggling of
gold. Slips of money transaction are related to smuggling of gold
and photos of currency notes are related to hawala transactions
related to smuggling of gold. Shri Vishal has sent the money for
said gold through hawala at Dubai/Sharjah. You further admitted
Shri Mustafa used to arrange people/carriers of gold smuggling
who used to smuggle gold in various forms e.g. concealed in
Iron, in paste form in shoes and sprayed as a powder in
undergarments etc. Shri Vishal used to melt/extract said
smuggled gold and sell it from his shop. The details of delivery
of said smuggled gold was with Sh. Mustafa only. For the
payment of the gold you used to contact Sh. Vishal and he sent
the money through Hawala transactions. Shri Pradeep Kumar
Nehra i.e. you further admitted that Sh. Mustafa used to share the
passport copies of the gold carriers and Sh. Nehra i.e. you used
to book/process their tickets and visa yourself the payment of
which was adjusted in the profit with Sh. Mustafa. You stated
that you were not aware who this gold (which was smuggled to
Hyderabad) was delivered to. Upon perusal of your various chats
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 7 of 29
Signing Date:23.12.2024
19:07:26
showing methods of concealment of gold in photos/videos you
stated that these methods of gold concealment for smuggling
were shared with you by the employees of Yass Gold i.e. Shri
Sahib, Mama, Sachin, Sabu.
vi. Shri Pradeep Kumar Nehra i.e. you was arrested on
12.01.2024 under Section 104 of the Customs Act, 1962 in
contravention of section 132, 135(1) (a) & 135 (1) (b) of the
Customs Act, 1962. Shri Pradeep Kumar Nehra i.e. you was
produced before the Hon’ble Economic Offence Court, Jaipur on
dated 13.01.2024 with request of 5 days’ remand. The Hon’ble
Court accorded remand of Shri Pradeep Kumar Nehra i.e. you to
Customs till dated 16.01.2024.
vii. In your statement dated 13.01.2024, Shri Pradeep Kumar
Nehra i.e. you stated about your various firms registered in
Dubai as well as in India and your partners in these firms. On
being asked about the pictures related to smuggling of gold, Shri
Pradeep Kumar Nehra i.e. you again reiterated that you used to
buy gold for smuggling from YASS gold in Dubai. The pictures
showing methods of concealment of gold in machines like Iron,
toaster, vacuum cleaner, juicer, nebuliser etc. have been sent by
the employees of YASS gold. You reiterated that you have
smuggled gold only 5 times to Hyderabad as mentioned by you
earlier. Upon being asked about you ticket to Hyderabad dated.
11.09.2023 found in your phone, you stated that you have gone
to Hyderabad for a meeting regarding purchase of granite.
viii. During statement dated 15.01.2024, Shri Pradeep Kumar
Nehra i.e. you were shown various chats with photographs and
voice notes including chats dated. 17.02.2023, 27.04.2023,
09.05.2023, 15.08.2023, 23.12.2023, 24.12.2023 & 25.12.2023
with Shri Vishal related to gold smuggling. Upon perusal of
these, Sh. Nehra i.e. you admitted that the pictures and mentions
in these voice notes are related to smuggling of gold and Shri
Mustafa sent this gold from Dubai and Shri Vishal has sent the
payment to Sharjah/Dubai through hawala. Shri Pradeep Kumar
Nehra i.e. you also admitted that Shri Mustafa and yourself used
to finance the gold smuggling and you are fully involved in
smuggling of Gold. Upon being asked about any details e.g.
contact number, photo etc. related to Sh. Mustafa, you expressed
your inability to produce the same. You were shown a voice note
recorded by you in your chat dtd. 23.12.2023 wherein it was said
“Main mera kaam bahut hi safety se karta hoon isliye mujhe
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 8 of 29
Signing Date:23.12.2024
19:07:26
involve rehna padta hai. Mere kisi bhi aadmi ko pata nahin rehta
hai ki samaan kaise bhijwaya hai, kya kiya hai. Wahan
pahunchne ke baad hi pata chalta hai. Passenger ko bhi pata
nahin chalta hai. Isliye main apne hisaab se hi kaam karta hoon.”
You agreed with said statement.
ix. Shri Pradeep Kumar Nehra i.e. you were again produced
before the Hon’ble Economic Offence Court, Jaipur on dated
16.01.2024 with request of 2 days’ remand. The Hon’ble Court
again accorded remand of Shri Pradeep Kumar Nehra i.e. you for
one day to Customs till dated 17.01.2024.
x. During statement dated 17.01.2024, Shri Nehra i.e. you were
shown your travel history wherein between 05.09.2023 to
29.12.2023 (i.e. approximately 3-4 months), you had travelled
between India and UAE 32 times to and from various locations
including Mumbai, Goa, Indore, Ahmedabad, Delhi, Jaipur.
Embark and disembark locations in these trips were often
different and your trips were in a very short span of time. You
were shown your chat with Sh. Vishal dated 24.10.2023 wherein
the details of five transactions in August, 2023 were there which
showed 2995.560 g, 3000.820 g, 2995.450 g, 2995.350 g,
1996.670g which you admitted was related to gold smuggling.
You were also shown a chat dated 01.05.23 which you agreed
indicated smuggling of 2895.84 g gold which you had sent to
Hyderabad.
xi. Shri Pradeep Kumar Nehra i.e. you were again produced
before the Hon’ble Economic offence Court on dated 17.01.2024
and the Hon’ble Court ordered you to judicial custody.
xii. Retractions to the statements were filed by Pradeep Kumar
Nehra i.e. you on 18.01.2024.
xiii. DRI Hyderabad Zonal Unit conducted the follow up action
at the premises of Shri Vishal Abaso Sawant, House No. 21-5-
198, Kali Kaman, Charminar, Hyderabad Jubilee Charminar,
Hyderabad, Telangana. Follow up search was conducted,
however, nothing incriminating was found in the aforementioned
premises.
xiv. Statement of Shri Vishal Abaso Sawant was recorded by
DRI Hyderabad on 20.01.2024, whereunder he stated that he
started work at the firm Nayan Gold, located at 22-5-198, Kali
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 9 of 29
Signing Date:23.12.2024
19:07:26
Kaman, Charminar, Hyderabad. The firm is involved in testing
of gold, remelting of gold, exchange of gold and silver and
bullion trading. Shri Vinod Panwar is the proprietor of Nayan
Gold. On being asked about Shri Pradeep Kumar Nehra i.e. you,
he stated that Shri Pradeep Kumar Nehra i.e. you were from
Jaipur and approached them at Nayan Gold for selling of
remelted gold. Shri Pradeep Kumar Nehra i.e. you have traded
with them around 12-15 times and around 4 to 5 times you
yourself came for selling gold. He stated that he does not know
anyone named Mustafa. He stated that he was instructed by Shri
Pradeep Kumar Nehra le. you to hand over the cash from the sale
of gold, to the person who shows a currency note bearing certain
serial number. The photo of the currency note was sent to him by
Shri Pradeep Kumar Nehra ie. you. He used to verify the serial
number on the note and hand over the cash to the person carrying
the currency note. He did not know what happened to that cash
later and where it goes. Shri Khaleel (an associate of Sh. Nehra)
used to handle the melting/remelting of gold and used to bring it
to him. He used to weigh the gold and communicate the weight
to Shri Pradeep Kumar Nehra i.e. you.
xv. Bail application of Pradeep Kumar Nehra i.e.. you were
rejected by the Hon’ble Economic Offence Court vide order
dated 22.01.2024 and subsequently bail application also
rejected by the Hon’ble ADJ III Court vide order dated
24.01.2024.
xvi. Statement of Shri Vishal Abaso Sawant was recorded on
06.02.2024, wherein he, inter-alia, stated that he resides in
Hyderabad since 2006 and indulged in melting, selling, testing
and exchange of gold and selling of gold Jewellery at his shop
Nayan Gold. Owner of Nayan gold is Shri Vinod Panwar and he
comes to shop once in 15-20 days. Shri Vishal Abaso Sawant
looks after all the work of the shop. On being shown the picture
of Shri Pradeep Kumar Nehra i.e. you, he identified the person in
picture as Shri Pradeep Kumar Nehra i.e. you and told that Sh.
Nehra i.e. you came to his shop himself 5-6 times in the years
2022 and 2023 and put his dated signature on pictures. He
admitted that in last two years, Shri Pradeep Kumar Nehra i.e.
you have sent the gold around 25-30 times to his shop through
you or some person sent by you and the payment of the gold has
been sent by him through hawala to Sharjah.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 10 of 29
Signing Date:23.12.2024
19:07:26
xvi. Statement of Shri Vishal Abaso Sawant was recorded on
07.02.2024, wherein he, inter-alia, stated that various audio notes
retrieved from the iphone of Shri Pardeep Kumar Nehra i.e. you
have been heard by him and confirmed that these notes are
related to smuggling of gold and payment of gold through
hawala. Various slips of due amount have been interchanged
between Shri Vishal and Shri Pradeep Kumar Nehra i.e. you and
Shri Vishal has confirmed that these all are related to smuggling
of gold and hawala. He admitted that Shri Pradeep Kumar Nehra
i.e. you have sent 25-26 kilograms of smuggled gold at
Hyderabad during the months of November & December 2023.
There are various transaction of gold and money in the chat of
Shri Vishal Abaso Sawant and Shri Pradeep Kumar Nehra i.e.
you which he admitted that the said transaction were related to
smuggling of gold.
xvii. Statement of Shri Vishal Abaso Sawant was recorded on
08.02.2024 wherein he, inter-alia, stated that he has deleted
various pictures of gold and transaction/accounts which were
related to smuggling of gold and its payment which has been
retrieved during the forensic of his phone. In the said statement it
has been stated that Shri Jitu Resident of Sangli, Maharastra used
to collect money on behalf of Shri Pradeep Kumar Nehra i.e. you
and then send the same to Shri Pradeep Kumar Nehra through
Hawala i.e. you.
xviii. Statement of Shri Vishal Abaso Sawant recorded on
09.02.2024, wherein he, inter-alia, stated that Shri Khaleel alias
Murtaza Ali used to bring the gold smuggled by Shri Pradeep
Kumar Nehra i.e. you to their shop Nayan Gold.
xix. Aggrieved by the order of Hon’ble ADJ Court, Pradeep
Kumar Nehra i.e. you filed bail application before the
Hon’ble Rajasthan High Court, bail application of Pradeep
Kumar Nehra 1.c. you, was rejected by the Hon’ble
Rajasthan High Court order dated 09.02.2024.
xx. In his statement dated 22.02.2024, Shri Vishal Abaso Sawant
confirmed that Shri Pradeep Kumar Nehra i.e. you used to
purchase gold from YASS gold in which Shri Rohan/Rohit
Resident of Sangli, Maharastra is working. Further, he stated that
Shri Khaleel alias Murtaza Ali resident of Hyderabad, introduced
Shri Pradeep Kumar Nehra i.e.. you to him about three years ago.
Shri Vishal Abaso Sawant also stated that Shri Pradeep Kumar
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 11 of 29
Signing Date:23.12.2024
19:07:26
Nehra i.e.. you gave his mobile number to Shri Sachin resident
of Sangli, Maharastra who himself is working in YASS gold,
Dubai from where Shri Pradeep Kumar Nehra i.e. you used to
purchase gold for smuggling. Shri Vishal stated that Sachin used
to take money in respect of smuggled gold from him in India and
send it to Shri Pradeep Kumar Nehra i.e.. you in Dubai by
hawala.
xxi. In his statement dated 23.02.2024, Shri Vishal Abaso
Sawant confirmed that he had sent the amount of Rs.
1,99,75,340/-, Rs. 1,50,00,000/- and Rs. 24,00,000/- to Shri
Pradeep Kumar Nehra i.e. you through Hawala and the said
payments were related to smuggling of Gold. There is a video of
opening an Iron, which Shri Vishal confirmed that the gold has
been sent by Shri Pradeep Kumar Nehra i.e. you concealed in
that iron
xxii. In his statement dated 24.02.2024, Shri Vishal Abaso
Sawant confirmed that Shri Pradeep Kumar Nehra i.e.. you has
smuggled around 25-26 Kilograms of Gold during the month of
November and December 2023 and handed over to him in
Hyderabad.
xxiii. Second bail application filed by Shri Pradeep Kumar
Nehra ie, you before the Hon’ble Economic Offences court
was rejected by Hon’ble Court dated 14.03.2024. Another
Second Bail application was filed by Shri Pradeep Kumar
Nehra i.e. you before Honourable District and Sessions
Court, Jaipur District. Honourable ADJ III, District and
Sessions Court, Jaipur District denied bail on 18.03.2024.
Aggrieved by the order of Hon’ble ADJ Court, Shri Pradeep
Kumar Nehra i.e. you have filed second bail application
before the Hon’ble Rajasthan High Court and bail
application was rejected by the Hon’ble Rajasthan High
Court vide order dated 03.04.2024.”
(emphasis supplied)
SUBMISSIONS ON BEHALF OF THE PETITIONER
4. Learned Counsel for the Petitioner submitted that the latter is
already in custody in connection with alleged recovery of gold and the
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 12 of 29
Signing Date:23.12.2024
19:07:26
prosecution in respect of the said case is pending before the learned
Economic Offences Court, Jaipur, and therefore, there was no need to
detain him under the COFEPOSA Act. Further, there was no imminent
possibility of the release of the Petitioner as the successive bail
applications filed by him were rejected six times by three different
forums.
5. It was further submitted that the impugned detention order was
passed after a substantial delay as the alleged incident took place on
11th January, 2024 and the detention order was not passed until 12 th
April, 2024. Thus, the link between the prejudicial activity alleged to
be committed by the Petitioner and the activities sought to be curbed
by the impugned detention order stood snapped.
6. Learned Counsel for the Petitioner has assailed the impugned
detention order primarily on two grounds. Firstly, there has been a
substantial delay in the consideration of representation of the
Petitioner signed on 06th July, 2024 forwarded through the Jail
Superintendent, Jaipur Jail/Respondent No.3 to the Detaining
Authority, i.e., Respondent No.2 on 09th July, 2024 which was
received by the latter on 17th July, 2024 renders the detention order
illegal as the same is violative of Article 22(5) of the Constitution of
India. It is further submitted that the Hon’ble Supreme Court has also
taken the issue of delay in forwarding the representation by the Jail
Superintendent as being a serious violation of the life and liberty of a
detenu. Reliance was placed upon Jaseela Shaji v. the Union of
India & Ors.1, to argue that the entire detention order itself is liable to
1
(2024) 9 SCC 53: 2024 INSC 683
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 13 of 29
Signing Date:23.12.2024
19:07:26
be quashed due to the delay in consideration of the representation.
7. Learned Counsel for the Petitioner submitted that the entire
month of July was consumed in merely forwarding the representation
and receipt of comments. Reliance was placed upon the decision of
the Hon’ble Supreme Court in K.M. Abdulla Kunhi and B.L. Abdul
Khader v. Union of India2, to contend that even after confirmation of
the detention order, a representation may be made by the detenu.
8. Reliance was placed upon the following decisions by the
learned Counsel for the Petitioner: –
(i) Aslam Ahmed Zahire Ahmed Shaik v. Union of India
and Ors.3;
(ii) Rama Dhondu Borade v. V.K. Saraf, Commissioner of
Police & Ors.4;
(iii) Rajammal v. State of Tamil Nadu & Anr.5;
(iv) Rattan Singh and Another v. State of Punjab and
Others6;
to argue that the delay in passing the detention order ought to be
2
(1991) 1 SCC 476: 1991 SCC (Cri) 613
3
(1989) 3 SCC 277: 1989 SCC OnLine SC 33
4
(1989) 3 SCC 173: 1989 SCC OnLine SC 205
5
(1999) 1 SCC 417: 1998 SCC OnLine SC 1023
6
(1981)
Signature Not Verified 4 SCC 481: AIR 1982 SC 1
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 14 of 29
Signing Date:23.12.2024
19:07:26
explained by the Sponsoring Authority almost on a day-to-day basis,
in order to justify the passing of the detention order. It was further
submitted that the Hon’ble Supreme Court has repeatedly held that
treating the representation in a callous or a negligent manner would
render the detention order illegal.
9. Secondly, it is submitted that the repeated rejection of the bail
applications of the Petitioner, ought to have been sufficient for the
Central Government not to confirm the impugned detention order as
the sole ground of propensity to repeat the offence is rendered
improbable. In addition, it was argued that the bail applications of the
Petitioner had been rejected by three judicial forums viz, the learned
Trial Court, learned Sessions Court and the Rajasthan High Court.
Though these facts have been noted in the impugned Detention Order,
no justifiable cause has been provided as to how the propensity to
commit illegal acts would exist when, admittedly, the Petitioner is
already under detention/judicial custody. Thus, it is submitted that the
non-application of mind while passing the impugned detention order
would also render it liable to be quashed. It was further argued that the
safeguards for detention cannot be fulfilled in this manner and the
impugned detention order is, thus, not sustainable. Reliance is placed
upon a judgment passed by this Court in Rizauddin @ Riyajudden
@ Pintu vs Union of India & Ors.7.
7
2024: DHC: 6831-DB
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 15 of 29
Signing Date:23.12.2024
19:07:26
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
10. Learned Standing Counsel on behalf of the Respondent Nos. 1
and 2 submitted that all the vital documents have been placed by the
Sponsoring Authority before the Detaining Authority/Respondent No.
2 and the impugned detention order has been passed with a view to
prevent the Petitioner from smuggling of goods, abetting the
smuggling of goods and engaging in transporting or concealing or
keeping smuggled goods in future. It is further submitted that this is a
case where the Petitioner has repeatedly been indulged in illegal and
unlawful activities under the COFEPOSA Act. The fact that he had
adeptly hidden a substantial amount of gold in his sandals, in itself,
makes it clear that the entire conduct of the Petitioner was deliberate
and with an intention to smuggle gold. It is argued that all detention
cases cannot be considered in a straitjacketed manner, in certain cases
where there is a deliberate violation of law, the safeguards cannot be
applied with the same force.
11. Learned Standing Counsel for the Respondent Nos. 1 and 2
submitted that the pendency of prosecution is not a bar to preventive
detention. Reliance was placed upon the judgment of the Hon’ble
Supreme Court in Haradhan Saha v. State of West Bengal and
Ors.8
12. It was argued that the delay in considering the representation
made by the Petitioner is explainable as the same was forwarded by
8
(1975) 3 SCC 198.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 16 of 29
Signing Date:23.12.2024
19:07:26
the Jail Authorities on 09th July, 2024 and it was received by
Respondent No. 2 on 19th July, 2024. Comments of the Sponsoring
Authority were called for on the same day by Respondent No. 2 and
immediately upon receiving the comments from the Sponsoring
Authority on 31st July, 2024, the representation made by the Petitioner
was considered and rejected on the very next day, i.e., 01st August,
2024 by Respondent No.2. Hence, it can be said that the matter was
considered in an expeditious manner. Insofar as the delay of
forwarding the representation by the Jail Authorities is concerned, it is
argued that it is for the Jail Superintendent/Respondent No.3 to
explain as to why the representation was forwarded in a delayed
manner.
ANALYSIS AND FINDINGS
13. Heard learned Counsels for the parties and perused the records.
Non-application of mind by the Detaining Authority
14. For the purposes of the present petition, the following dates are
relevant: –
12th January, 2024 The Petitioner was arrested
22nd January, 2024 First bail application before the learned
Economic Offence Court was rejected.
24th January, 2024 First application before the learned Sessions
Court was rejected.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 17 of 29
Signing Date:23.12.2024
19:07:26
09th February 2024 Application for bail was dismissed by the
Hon’ble Rajasthan High Court.
14th March, 2024 Second bail application was rejected by the
learned Economic Offence Court
18th March, 2024 Second bail application rejected by the learned
Session Court
03rd April, 2024 Second application for bail rejected by the
Hon’ble Rajasthan High Court
03rd April, 2024 Proposal sent by Sponsoring Authority
05th April, 2024 The proposal was received by the Office of
Detaining Authority
08th April,.2024 The said Proposal placed before the Central
Screening Committee for consideration
12th April, 2024 Impugned order of detention was passed
17th April, 2024 Order of detention was executed on the
Petitioner
1st April, 2024 Case referred to the Advisory Board, Hon’ble
Rajasthan High Court
22nd May, 2024 The Advisory Board, Hon’ble Rajasthan High
Court, after hearing the detenue/Petitioner,
recommended the confirmation of the detention
order
18th June, 2024 Confirmation order passed by the competent
authoritySignature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 18 of 29
Signing Date:23.12.2024
19:07:26
15. The learned Counsel for the Petitioner has submitted that since
successive bail applications of the Petitioner have been rejected by
three forums, i.e., learned Trial Court, learned Sessions Court and the
Hon’ble High Court, therefore, there was no justifiable cause for
passing the impugned order of detention. It was submitted that there
was no live link, at the time passing of the impugned detention order,
which would have shown the propensity of the Petitioner for the
future commission of the prejudicial activities. Reliance is placed on
the decision of this Court in Rizauddin @ Riyajuddin @
Riyajudden @ Pintu v. Union of India & Ors (supra).
16. The competent authority in the impugned detention order has
noted the fact that the successive bail applications of the Petitioner
had been rejected by the concerned Courts including the Hon’ble
Rajasthan High Court as on 03.04.2024 in the following manner: –
“8. I am aware that you i.e. Shri Pradeep Kumar Nehra filed
retractions dated 18.01.2024. Similar allegations were also raised
by you in your bail applications filed in Economic Offence
wing/ADJ Court/Hon’ble High Court, Rajasthan. These
allegations were strongly denied in reply filed by Sponsoring
Authority i.e. Customs (Preventive), Jodhpur against these bail
applications. Your bail applications were rejected by Hon’ble
Courts. I am satisfied that retractions of statement filed by you
are nothing but an afterthought and devoid of merits.
9. I am aware that you i.e. Shri Pradeep Kumar Nehra are in
judicial custody at present. However, there is a 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 issue a Detention
Order against you under the COFEPOSA Act, 1974 with a
view to prevent you from smuggling of gold in future.
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 19 of 29
Signing Date:23.12.2024
19:07:26
10. I am aware that prosecution under Section 135 of the
Customs Act, 1962 has been launched against you i.e. Shri
Pradeep Kumar Nehra and adjudication proceedings are also
likely to be initiated soon, which are however, punitive in nature
and independent of the preventive detention provided under the
COFEPOSA Act, 1974. However, considering Shri Pradeep
Kumar Nehra’s i.e. your high propensity to indulge in the
prejudicial activities, I am satisfied that in the meantime you
should be immobilised by detention under the COFEPOSA
Act, 1974 with a view to prevent you from smuggling goods,
abetting the smuggling of goods and engaging in transporting or
concealing or keeping smuggled goods in future.”
(emphasis supplied)
The above observation made by the detaining authority to the
extent that the Petitioner was likely to be released from judicial
custody, is without any material. This is in view of the fact that the
bail applications of the Petitioner had already been dismissed twice by
the Hon’ble Rajasthan High Court by that time, and admittedly, no
other application seeking bail was pending at that time when the
impugned order was passed.
17. The Hon’ble Supreme Court in Binod Singh v. District
Magistrate, Dhanbad9, while setting aside the detention order against
the Petitioner therein, who was already in jail at the time of service of
the detention order, has observed and held as under: –
“7. It is well settled in our constitutional framework that the
power of directing preventive detention given to the appropriate
authorities must be exercised in exceptional cases as
contemplated by the various provisions of the different statutes
dealing with preventive detention and should be used with great9
(1986) 4 SCC 416: 1986 SCC OnLine SC 335
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 20 of 29
Signing Date:23.12.2024
19:07:26
deal of circumspection. There must be awareness of the facts
necessitating preventive custody of a person for social defence.
If a man is in custody and there is no imminent possibility of
his being released, the power of preventive detention should
not be exercised. In the instant case when the actual order of
detention was served upon the detenu, the detenu was in jail.
There is no indication that this factor or the question that the
said detenu 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. A bald statement is merely an ipse dixit of the
officer. If there were cogent materials for thinking that the
detenu might be released then these should have been made
apparent. 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. In the
affidavits on behalf of the detaining authority though there are
indications that transfer of the detenu from one prison to another
was considered but the need to serve the detention order while he
was in custody was not properly considered by the detaining
authority in the light of the relevant factors. At least the records
of the case do not indicate that. If that is the position, then
however disreputable the antecedents of a person might have
been, without consideration of all the aforesaid relevant factors,
the detenu could not have been put into preventive custody.
Therefore, though the order of preventive detention when it was
passed was not invalid and on relevant considerations, the
service of the order was not on proper consideration.
8. It may be mentioned that in the petition it is nowhere stated
that the detenu has since been released or that the prospect of his
imminent release was properly and with seriousness considered
by the detaining authority.”
18. The Hon’ble Supreme Court in N. Meera Rani v. Government
of Tamil Nadu and Another10, has observed and held as under: –
10
Signature Not Verified(1989) 4 SCC 418,
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 21 of 29
Signing Date:23.12.2024
19:07:26
“11. The contents of the detention order and its accompanying
annexure clearly show that the detaining authority was aware and
conscious of the fact that the detenu was already in custody in
connection with the Bank dacoity at the time of making the
detention order. The fact that the detenu’s application for grant of
bail in the dacoity case had been rejected on 22-8-1988 and he
was remanded to custody for the offence of bank dacoity
punishable under Section 397 IPC is also evident from the
record. The detention order came to be made on 7-9-1988 on the
above grounds in these circumstances. In the detention order the
detaining authority recorded its satisfaction that the detenu’s
preventive detention was necessary to prevent him from
indulging in activities prejudicial to maintenance of public order
in which he would indulge if he was allowed to remain at large.
The above quoted paras 18 and 19 of the Annexure to the
detention order clearly disclose the factual position. However, it
may be pointed out that the detention order read along with
its annexure nowhere indicates that the detaining authority
apprehended the likelihood of the detenu being released on
bail in the dacoity case and, therefore, considered the
detention order necessary. On the contrary, its contents,
particularly those of the above quoted para 18 clearly mention
that the detenu had been remanded to custody for being
proceeded against in due course and even though his name was
not mentioned in the FIR as one of the dacoits who participated
in the commission of the armed Bank dacoity yet the documents
clearly revealed that the detenu was an active participant in the
conspiracy to loot the bank in furtherance of which the dacoity
was committed; and that considerable booty of that crime
including weapons, bombs and hand grenades were recovered
from his possession pursuant to the detenu’s confession made
after his arrest. These averments in the detention order
indicate the satisfaction of the detaining authority that in its
view there was ample material to prove the detenu’s active
participation in the crime and sharing the booty for which
offence he had already been taken into custody. This view of
the detaining authority negatives the impression of likelihood
of detenu being released on bail.
**** **** **** ****
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 22 of 29
Signing Date:23.12.2024
19:07:26
21. A review of the above decisions reaffirms the position which
was settled by the decision of a Constitution Bench
in Rameshwar Shaw case [AIR 1964 SC 334 : (1964) 4 SCR 921
: (1964) 1 Cri LJ 257] . The conclusion about validity of the
detention order in each case was reached on the facts of the
particular case and the observations made in each of them have
to be read in the context in which they were made. None of the
observations made in any subsequent case can be construed at
variance with the principle indicated in Rameshwar Shaw
case [AIR 1964 SC 334 : (1964) 4 SCR 921 : (1964) 1 Cri LJ
257] for the obvious reason that all subsequent decisions were by
Benches comprising of lesser number of Judges. We have dealt
with this matter at some length because an attempt has been
made for some time to construe some of the recent decisions as
modifying the principle enunciated by the Constitution Bench
in Rameshwar Shaw case [AIR 1964 SC 334 : (1964) 4 SCR 921
: (1964) 1 Cri LJ 257] .
22. We may summarise and reiterate the settled principle.
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
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.
23. Applying the above settled principle to the facts of the
present case we have no doubt that the detention order, in the
present case, must be quashed for this reason alone. The
detention order read with its annexure indicates the
detaining authority’s awareness of the fact of detenu’s jail
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 23 of 29
Signing Date:23.12.2024
19:07:26
custody at the time of the making of the detention order.
However, there is no indication therein that the detaining
authority considered it likely that the detenu could be
released on bail. In fact, the contents of the order,
particularly, the above quoted para 18 show the satisfaction
of the detaining authority that there was ample material to
prove the detenu’s complicity in the Bank dacoity including
sharing of the booty in spite of absence of his name in the
FIR as one of the dacoits. On these facts, the order of
detention passed in the present case on 7-9-1988 and its
confirmation by the State Government on 25-10-1988 is
clearly invalid since the same was made when the detenu was
already in jail custody for the offence of bank dacoity with no
prospect of his release. It does not satisfy the test indicated by
the Constitution Bench in Rameshwar Shaw case [AIR 1964
SC 334 : (1964) 4 SCR 921 : (1964) 1 Cri LJ 257] . We hold
the detention order to be invalid for this reason alone and express
no opinion on merits about the grounds of detention.”
(emphasis supplied)
19. In the present case, apart from the impugned detention order,
even in the counter affidavit dated 17th September, 2024 filed on
behalf of the Respondent Nos. 1 and 2, it has not been demonstrated
that there was a possibility of the Petitioner being released from the
judicial custody to justify the impugned order of detention.
20. As already noted above, the proposal of the Petitioner’s
detention was moved on 03rd April, 2024 when his second application
for bail was rejected by the Hon’ble Rajasthan High Court. In these
circumstances, it was incumbent upon the detaining authority to
demonstrate “subjective satisfaction” with regard to the possibility of
Petitioner being likely to be released on bail. A mere statement to that
effect cannot satisfy the test as laid down in the judicial precedents
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 24 of 29
Signing Date:23.12.2024
19:07:26
cited above. The allegations against the Petitioner are no doubt
serious, for which he is facing prosecution. However, the fact that his
repetitive efforts to secure bail had been unsuccessful till the High
Court demonstrates that he was not likely to be released on bail when
the impugned order of detention was being passed.
21. The Courts would normally hesitate to substitute the “subjective
satisfaction” with its own opinion and interfere with the order of
detention, however, such satisfaction should be after proper
application of mind. In case, the Court finds the same being passed on
account of non-application of mind, then the same can be set aside by
this Court while exercising its power under Article 226 of the
Constitution of India.
22. The Hon’ble Supreme Court in Ameena Begum v. State of
Telangana and Others11while referring to various judgments with
respect to judicial reviewability of a detention order, has observed and
held as under: –
“15. In Rameshwar Shaw v. District Magistrate,
Burdwan [Rameshwar Shaw v. District Magistrate, Burdwan,
1963 SCC OnLine SC 33 : AIR 1964 SC 334] , a Constitution
Bench speaking through Hon’ble P.B. Gajendragadkar, J. (as the
Chief Justice then was) in course of interdicting an order of
detention passed under Section 3 of the Detention Act held as
follows : (AIR p. 337, paras 7-8)“7. There is also no doubt that if any of the grounds furnished
to the detenu are found to be irrelevant while considering the
application of clauses (i) to (iii) of Section 3(1)(a) and in that
sense are foreign to the Act, the satisfaction of the detaining11
(2023) 9 SCC 587
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 25 of 29
Signing Date:23.12.2024
19:07:26
authority on which the order of detention is based is open to
challenge and the detention order liable to be quashed.
Similarly, if some of the ground supplied to the detenu are so
vague that they would virtually deprive the detenu of his
statutory right of making a representation, that again may
introduce a serious infirmity in the order of his detention. If,
however, the grounds on which the order of detention proceeds
are relevant and germane to the matters which fall to be
considered under Section 3(1)(a), it would not be open to the
detenu to challenge the order of detention by arguing that the
satisfaction of the detaining authority is not reasonably based
on any of the said grounds.
8. It is, however, necessary to emphasise in this connection
that though the satisfaction of the detaining authority
contemplated by Section 3(1)(a) is the subjective satisfaction
of the said authority, cases may arise where the detenu may
challenge the validity of his detention on the ground of mala
fides and in support of the said plea urge that along with other
facts which show mala fides, the Court may also consider his
grievance that the grounds served on him cannot possibly or
rationally support the conclusion drawn against him by the
detaining authority. It is only in this incidental manner and in
support of the plea of mala fides that this question can become
justiciable; otherwise the reasonableness or propriety of the
said satisfaction contemplated by Section 3(1)(a) cannot be
questioned before the Courts.”
**** **** **** ****
22. On a conspectus of the decisions referred to above and other
decisions on preventive detention, we may observe here that the
argument commonly advanced on behalf of detaining authorities
in the early days of the Constitution was that the Court’s enquiry
ought to be confined to whether there is an order of detention or
not and the moment such an order, good on its face, is produced,
all enquiry into good faith, sufficiency of the reasons or the
legality or illegality of the action comes to an end. However,
with passage of time, and expansion and development of law, it
is no longer the law that a preventive detention action,
howsoever lawful it might appear on its face, cannot be
invalidated by the constitutional courts. This is so, as at present,
there is no administrative order affecting rights of the subjects
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 26 of 29
Signing Date:23.12.2024
19:07:26
that can legitimately claim to be impregnably guarded by a
protective shield, which judicial scrutiny cannot penetrate.
23. Apart from the aforesaid decisions, multiple decisions have
been rendered by this Court over the years which provide
suitable guidance to us to complete the present exercise;
however, we wish to conclude this discussion by referring to one
decision of this Court delivered [Rekha v. State of T.N., (2011) 5
SCC 244 : (2011) 2 SCC (Cri) 596] little in excess of a decade
back by a Bench of 3 Judges.
24. In Rekha v. State of T.N. [Rekha v. State of T.N., (2011) 5
SCC 244 : (2011) 2 SCC (Cri) 596] , this Court observed that :
(SCC pp. 253-55, paras 21 & 29)
“21. It is all very well to say that preventive detention is
preventive not punitive. The truth of the matter, though, is
that in substance a detention order of one year (or any other
period) is a punishment of one year’s imprisonment. What
difference is it to the detenu whether his imprisonment is
called preventive or punitive?
* * *
29. Preventive detention is, by nature, repugnant to democratic
ideas and an anathema to the Rule of law. No such law exists
in the USA and in England (except during war time). Since,
however, Article 22(3)(b) of the Constitution of India permits
preventive detention, we cannot hold it illegal but we must
confine the power of preventive detention within very narrow
limits, otherwise we will be taking away the great right to
liberty guaranteed by Article 21 of the Constitution of India
which was won after long, arduous and historic struggles. It
follows, therefore, that if the ordinary law of the land (the
Penal Code and other penal statutes) can deal with a situation,
recourse to a preventive detention law will be illegal.” [Ed. : It
would appear that this entire extract from paras 21 and 29
of Rekha, (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596, and in
particular the observation in para 29, that preventive detention
is not permissible when the ordinary law of the land can deal
with the situation, is per incuriam paras 19 and 32 to 34 of the
Constitution Bench in Haradhan Saha v. State of W.B., (1975)
3 SCC 198 : 1974 SCC (Cri) 816, as held para 26 of the
present judgment herein below.Paras 19 and 32 to 34
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 27 of 29
Signing Date:23.12.2024
19:07:26
of Haradhan Saha have been set out in the Headnote at SCC
pp. 589-90.]
(emphasis in original)
25. There could be little doubt with the thought process that
although the executive would pass an order under the preventive
detention laws as a preventive or a precautionary measure, its
effect viewed strictly from the standpoint of the detenu is simply
and plainly punitive. Significantly, an order of detention is not
relatable to an alleged commission of offence which a court is
seized of and, thus, the conduct of the accused complained of, is
yet to be found blameworthy; on the contrary, since it relates to
an anticipated offence based on past conduct, the detenu could
well feel that he is at the receiving end of a subjective
satisfaction of the executive despite he not being proved to be on
the wrong side of the law on any previous occasion. If someone
loses his liberty and lands up in prison not having a semblance of
a chance to resist or protest, the very circumstance of being put
behind bars for such period as specified in the order of detention
based on an anticipation that an offence is likely to be committed
by him seems to be an aspect which does not sync with the
norms and ethos of our very own Constitution and the decisions
of this Court in which the concept of “life” has been explained in
such a manner that “life” has been infused in the letters of Article
21 (see Common Cause v. Union of India [Common
Cause v. Union of India, (1999) 6 SCC 667 : 1999 SCC (Cri)
1196] ). Nonetheless, so long clause (3) of Article 22 of the
Constitution itself authorises detention as a preventive
measure, there can be no two opinions that none can take
exception to such a measure being adopted and it is only a
limited judicial review by the constitutional courts that can
be urged by an aggrieved detenu wherefor too, in examining
challenges to orders of preventive detention, the Courts
would be loath to interfere with or substitute their own
reasoning for the subjective satisfaction arrived at by the
detaining authority. Since the object of a preventive
detention law is not punitive but preventive and
precautionary, ordinarily it is best left to the discretion of the
detaining authority.”
(underline supplied)
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 28 of 29
Signing Date:23.12.2024
19:07:26
23. In view of the above-said reasons, this Court is of the
considered opinion that the impugned order of detention was passed
mechanically without any due application of mind and is liable to be
set aside. Accordingly, the present Petition is partly allowed and the
impugned order of detention dated 12th April, 2024 and confirmation
order dated 18th June 2024 are set aside.
24. In view of the aforesaid findings, this Court need not examine
the ground of delay which had allegedly occurred in placing and
considering the representation moved by the Petitioner on 06 th July
2024.
25. The Present Petition stands disposed of along with all pending
applications.
26. Needless to state that observations made herein are only with
respect to the disposal of the present Petition and the same will not
have any bearing in respect of the pending trial or prosecution under
any other law against the Petitioner.
27. Judgment be uploaded on the website of this Court forthwith.
AMIT SHARMA, J.
PRATHIBA M. SINGH, J.
DECEMBER 23, 2024/nk
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT W.P.(CRL) 2332/2024 Page 29 of 29
Signing Date:23.12.2024
19:07:26