UNION OF INDIA v. DIMPLE HAPPY DHAKAD

#3. In the present case, the grounds of detention and relied upon documents were served upon the detenues within five days from 18.05.2019 – the date of detention orders i.e. on 21.05.2019 and 22.05.2019. The term pari passu has to be read with the statutory provision of Section 3(3) of the COFEPOSA Act which would mean that the grounds of detention and relied upon documents are served within five days and for reasons to be recorded within fifteen days with explanation. Only when such rule is vitiated, it can be said that they were not furnished together. The High Court erred in quashing the detention orders on the ground that the documents and the material were not supplied pari passu the detention orders. [Para 24] [1171-C-E]

#4. The “Hand Book on Compilation of Instructions on COFEPOSA matters” is only in the nature of guidelines for the officers of the department in dealing with COFEPOSA matters. The said guidelines direct that “care to be taken in communication/service of detention order” and the grounds of detention and relied upon documents should be served as quickly as possible but within the statutory time limit of five days from the date of detention order. The said guidelines were fully complied with. Also, it is well-settled principle that any executive instruction like the guidelines cannot curtail the provisions of any statute or whittled down any provision of law. [Para 26] [1171-G-H; 1172-A]

#5. It is well settled that the order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. 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. [Para 30] [1173-C]

#6. In the light of the well settled principles, in the present case, whether there was awareness in the mind of the detaining authority that detenu is in custody and he had reason to believe A B C D E F G H UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1157 that detenu is likely to be released on bail and if so released, he would continue to indulge in prejudicial activities. In the present case, the detention orders dated 17.05.2019 record the awareness of the detaining authority:- (i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. Of course, in the detention orders, the detaining authority has not specifically recorded that the “detenu is likely to be released”. It cannot be said that the detaining authority has not applied its mind merely on the ground that in the detention orders, it is not expressly stated as to the “detenue’s likelihood of being released on bail” and “if so released, he is likely to indulge in the same prejudicial activities”. But the detaining authority has clearly recorded the antecedent of the detenues and its satisfaction that detenues have the high propensity to commit such offences in future. [Para 35] [1175-D-G]

#7. The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. A reading of the grounds of detention clearly indicates that one detenu has been indulging in smuggling gold and operating syndicate in coordination with others and habitually committing the same unmindful of the revenue loss and the impact on the economy of the nation. Likewise, the detention order qua the other detenu refers to the role played by him in receiving the gold and disposing of the foreign origin smuggled gold through his multiple jewellery outlets and his relatives. The High Court erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenues being released on bail which is in violation of the principles laid down in Kamarunnisa and other judgments and Guidelines No.24. The order of the High Court quashing the detention orders on those grounds cannot be sustained. [Para 37] [1176-B-E] Sophia Gulam Mohd. Bham v. State of Maharashtra and Others (1999) 6 SCC 593 : [1999] 1 Suppl. SCR A B C D E F G H 1158 SUPREME COURT REPORTS [2019] 8 S.C.R. A B C D E F G 421 ; Icchu Devi Choraria v. Union of India and Others (1980) 4 SCC 531 : [1981] 1 SCR 640 ; Mehdi Mohamed Joudi v. State of Maharashtra and others (1981) 2 SCC 358 ; Jasbir Singh v. Lt. Governor, Delhi and another (1999) 4 SCC 228 : [1999] 2 SCR 706 ; Senthamilselvi v. State of T.N. and Another (2006) 5 SCC 676 : [2006] 3 Suppl. SCR 24 ; Naresh Kumar Goyal v. Union of India and others (2005) 8 SCC 276 : [2005] 4 Suppl. SCR 17 ; State of Maharashtra and others v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613 : [2008] 3 SCR 967 – relied on.