KUNAL KISHORE v. THE UNION OF INDIA THROUGH THE DIRECTOR GENERAL CENTRAL ECONOMIC INTELLIGENCE BUREAU BIHAR

Judgment

7. ====================================================== For the Petitioner : For the Respondent UoI : For the respondent State: Mr. Ramakant Sharma, Senior Advocate Mr. Rakesh Kumar Sharma, Advocate Dr. K.N Singh, Senior Advocate (A.S.G) Mr. Alok Kumar, C.G.C. UoI Mr. Anshuman Singh, Advocate (D.R.I.) Mr. Sunil Kumar Mandal, SC-3 Mrs. Neelam Kumari, AC to SC-3 ====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL ORDER (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) 12 17-02-2025 Re: I.A. No. 01 of 2024: - This interlocutory application has been filed by the Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 petitioner praying for addition of prayer in the main writ petition to the extent that “to quash the Letter No. F.No. PH-12001/08/2- 24 COFEPOSA dated 06.03.2024 and 29.05.2024, whereby and whereunder the detention order has been passed by the respondent authorities and consequentially release the petitioner.”

2. Permission is accorded.

3. I.A. No. 01 of 2024 accordingly stands allowed. Re: Cr.W.J.C. No. 1309 of 2024: - The present petition has been filed under Articles 226 and 227 of the Constitution of India in which the petitioner has challenged the order dated 06.03.2024 passed by the respondent detaining authority under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short ‘COFEPOSA Act’). The petitioner has also challenged the communication dated 29.05.2024 issued by the concerned respondent authority by which the Central

Government has confirmed the order of detention passed by the detaining authority. The petitioner has prayed that both the impugned orders be quashed and set aside. FACTUAL MATRIX:

2. The factual matrix of the present case is as under: - Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025

2.1. A confidential information was received by one Abhishek Kamal to the effect that a syndicate was involved in smuggling of foreign gold from Yangoon (Myanmar) to Gaya through Gaya International Airport with the active involvement of Marshal deputed in the flight and the flight handling executive working there. It is alleged that Md. Salim is the kingpin of the said syndicate, who operates from Yangoon. Arun Kumar and Pappu Kumar, both senior customer service executives of Air India Airport Service Limited, helped the syndicate in collecting foreign origin gold from Marshal in the flight and deliver it to Kunal Kishore (petitioner) for further delivery to Md. Hassan, who, in turn, used to deliver it to the customers as per direction of Md. Salim. It is further alleged that the information also indicated that consignments of foreign origin gold have been planned to be smuggled on 13.12.2023 via two Myanmar International Flights UB-7001 and 8M-601 coming from Yangoon (Myanmar) to Gaya International Airport.

2.2. Based on the written report/complaint on the basis of intelligence input to the aforesaid effect, search and seizure memo. Economic Offence Case No. 85(O) of 2023 (D.R.T. Patna Unit Case No. 20/2023-24) dated 13.12.2023 for Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 the offences punishable under Sections 135(I)(a) and 135(I)(b) of the Customs Act came to be drawn. Further, on the basis of the specific intelligence input that the syndicate involved in the smuggling of foreign origin gold from Yangoon (Myanmar) to Gaya (Bihar) through Gaya International Airport, four persons, namely, Ko Ko Latt, Htin Linn Phyo, Arun Kumar and Pappu Kumar were apprehended on 13.12.2023 at Gaya International Airport and total 12004 grams of foreign origin gold was recovered and seized. Based on the intelligence input, simultaneous search was conducted by the officers of Directorate of Revenue Intelligence (DRI) at the premises of the petitioner, i.e., Kunal Kishore. During the search, total 124000 US Dollars were recovered from his residence in presence of the petitioner and two independent witnesses. The recovery and seizure memo was prepared on the spot. Further, voluntary statement of the petitioner was recorded on 14.12.2023 under Section 108 of the Customs Act, 1962. It is alleged that the petitioner admitted his involvement in the said smuggling syndicate and delivery and stated about the said syndicate that Md. Salim used to inform him about the quantity of gold coming by Myanmar International flight. He used to convey the said information to Arun Kumar and Pappu Kumar, who, it is Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 further alleged, used to collect the foreign origin gold from the Marshals in the flight as per directions of Md. Salim. Kunal Kishore (the petitioner) used to receive the foreign origin gold from Arun Kumar and deliver the same to Md. Hassan. It is also alleged that the said recovery of 124000 US Dollars was his commission out of the sale proceeds of the smuggled foreign origin gold.

2.3. It further transpires that thereafter, the petitioner was arrested and thereafter he was in custody and at that time the respondent detaining authority passed order of detention dated 06.03.2024, while exercising powers conferred under Section 3(1) of the COFEPOSA Act. Copy of the said order is produced on record with Interlocutory Application. The order of detention was executed on 11.03.2024 and the grounds of detention along with the documents were served upon the petitioner on 11.03.2024.

2.4. It further reveals that the case of the petitioner was referred to the Advisory Board (COFEPOSA), Patna High Court, Patna on 10.04.2024 in terms of the provisions contained in Section 8(b) of the COFEPOSA Act. The Advisory Board, after hearing the petitioner in person and the respondent Department in the proceedings held on 29.04.2024 and Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025

13.05.2024, opined that detention of the petitioner is justified. It also reveals that the Central Government considered the opinion of the Advisory Board and after considering the representation of the petitioner confirmed the detention order passed by the detaining authority against the petitioner and the same was conveyed by the Deputy Secretary to the Government of India to the petitioner vide order dated 29.05.2024.

2.5. It further transpires that the detaining authority and the Central Government received two separate representations both dated 04.04.2024 made by the petitioner on

12.04.2024 and 15.04.2024 respectively through jail authorities.

2.6. The petitioner challenged the impugned order of detention, which has been confirmed by the Central Government, by filing the present petition.

3. We have heard Mr. Ramakant Sharma, learned Senior Advocate assisted by Mr. Rakesh Kumar Sharma, learned counsel for the petitioner and Dr. K.N. Singh, learned Additional Solicitor General of India assisted by Mr. Alok Kumar, learned counsel for the respondent Union of India. SUBMISSIONS ON BEHALF OF THE PETITIONER: -

4. Mr. Ramakant Sharma, learned Senior Advocate Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 has assailed the impugned order of detention by contending that when the search was carried out on the basis of the intelligence input at the Airport, the petitioner was not present. However, on the basis of the intelligence inputs, a search was conducted by the DRI in the premises of the petitioner and during the said search, petitioner was found present at his house. It is alleged by the detaining authority in the impugned order that on being asked about his involvement in smuggling of gold, petitioner admitted his involvement in smuggling of foreign origin gold through Gaya International Airport. It is also alleged during the search of his house, total 124000 US Dollar were recovered. On being asked about the said recovered foreign origin gold, the petitioner stated that he has earned the said foreign currency by smuggling the foreign origin gold. Further, it is contended by learned senior counsel that the petitioner was not present at the time of receiving of gold or for delivering the gold and the gold was not recovered from the possession of the petitioner. It is further submitted that on the basis of the so-called confessional statement of the petitioner recorded by the Customs Officers, he has been implicated.

4.1. It is contended that there is no antecedent of the petitioner and there was no apprehension on the part of the Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 detaining authorities that the petitioner will continue with similar type of activity in future and, therefore, order of preventive detention passed by the respondent authorities is not tenable in law.

4.2. It is also contended that when the order of detention was passed, the petitioner was already in jail custody in connection with the complaint filed by the Customs Authorities against him. It was always open for the respondent authorities to oppose the bail application, if any, filed by the petitioner. However, when the petitioner was in jail custody, there was no apprehension on the part of the respondent authorities that the petitioner will indulge into similar type of activities, if he is released on bail. It is, therefore, contended that the subjective satisfaction of the detaining authorities has been vitiated.

4.3. Learned senior counsel also submitted that there is a delay in service of the order passed on 06.03.2024, which was communicated to the petitioner on 29.05.2024 and, therefore, on the ground of delay in communication of the order, the same be quashed and set aside.

4.4. Learned senior counsel lastly contended that the subjective satisfaction of the detaining authority is mechanical Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 and does not satisfy the test prescribed by the various decisions rendered by the Hon’ble Supreme Court. He has placed reliance upon the following decisions of the Hon’ble Supreme Court: - (I) Ayya v. State of U.P., reported in (1989) 1 SCC

374. (II) Rajesh Gulati v. Govt. of NCT of Delhi, reported in (2002) 7 SCC 129. (III) Rekha v. State of T.N., reported in (2011) 5 SCC 244 and (IV) Ameena Begum v. State of Telangana, reported in (2023) 9 SCC 587. SUBMISSIONS ON BEHALF OF THE RESPONDENTS: -

5. On the other hand learned ASG has mainly made following submissions: -

5.1. The impugned detention order dated 06.03.2024 has been issued by the Detaining Authority under the COFEPOSA only after arriving at his subjective satisfaction based on relevant and sufficient materials and facts. Based on the documents and the materials placed before the Detaining Authority and considering the individual role of the petitioner, the Detaining Authority has satisfied itself as to his continued Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 propensity and his inclination to indulge in acts of deceiving Customs Authorities in a planned manner to the detriment of the economic security of the country and thereafter concluded that there is a need to prevent the petitioner from smuggling of goods.

5.2. It is submitted that the said order of detention was executed on 11.03.2024 and the grounds of detention along with all the documents relied upon by the Detaining Authority for arriving at his subjective satisfaction were also served upon the petitioner on the very same day.

5.3. The petitioner was informed about his right to represent against his detention by the Detaining Authority to the Central Government as well as to the Advisory Board.

5.4. Learned ASG submits that the petitioner submitted two separate representations, both dated 04.04.2024, to the Detaining Authority and the Central Government, which were received on 12.04.2024 and 15.04.2024 respectively through the jail authorities. The Detaining Authority carefully examined the said representations and disposed of the same which was communicated to the petitioner on 25.04.2024.

5.5. It is further submitted that the Advisory Board considered the matter on 29.04.2024 and 13.05.2024 and opined Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 that detention of the petitioner is justified. The said opinion of the Advisory Board has been considered by the Central Government and thereafter the Central Government has also confirmed the impugned detention order as conveyed to the petitioner vide order dated 29.05.2024. The Central Government also considered the representation dated 04.04.2024 addressed by the petitioner and disposed of the same on 25.04.2024, which was duly conveyed to the detenue/petitioner.

5.6. Learned ASG, therefore, contended that the respondent authorities have strictly complied with the procedural aspects within the stipulated time and the procedural formalities have been adhered to strictly in the present case.

5.7. Learned ASG has placed reliance upon the following decisions of the Hon’ble Supreme Court : - (1) Naresh Kumar Goyal v. Union of India, reported in (2005) 8 SCC 276; (2) State of Maharashtra v. Bhaurao Punjabrao Gawande, reported in (2008) 3 SCC 613; (3) Haradhan Saha v. State of W.B., reported in (1975) 3 SCC 198; (4) Ameena Begum v. State of Telangana, reported in (2023) 9 SCC 587. Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025

5.8. It is, therefore, urged that the present petition being devoid of any merit, be dismissed. DISCUSSION AND REASONINGS: -

6. Having heard learned counsel for the parties and having gone through the materials placed on record, it would emerge that the respondent detaining authority has passed an order of detention dated 06.03.2024 against the present petitioner. It further transpires that the said order of detention was executed on 11.03.2024 along with the ground of detention and the documents upon which reliance has been placed by the respondent detaining authority. It would emerge from the impugned order of detention that it has been alleged that DRI received specific intelligence input that a syndicate involved in the smuggling of foreign origin gold from Yangoon (Myanmar) to Gaya (Bihar) through Gaya International Airport is operating and on the basis of the intelligence report, four persons, namely, Ko Ko Latt, Htin Linn Phyo, Arun Kumar and Pappu Kumar were apprehended on 13.12.2023 at Gaya International Airport and total 12004 grams of foreign origin gold were recovered and seized. It would further reveal that based on the intelligence report, simultaneous search was conducted by the officers of DRI at the premises of the petitioner, i.e., Kunal Kishore. Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 During the search, a total 124000 US Dollars were recovered from his residence in the presence of the petitioner and two independent witnesses. Panchnama of the said recovery and seizure memo dated 13.12.2023 was prepared on the spot. The petitioner and the independent witnesses put their signatures. It is specific case of the respondent that voluntary statement of the petitioner was recorded on 14.12.2023 under Section 108 of the Customs Act, wherein the petitioner has admitted his involvement in smuggling syndicate. It is the specific case of the respondent that the petitioner has not retracted from his statement given under Section 108 of the Customs Act.

6.1. It is the specific case of the respondents that the petitioner has further admitted in the said statement that around 200 kgs of foreign origin gold has been smuggled by him with the help of Arun Kumar and Pappu Kumar during last one year and that the petitioner used to get 1300 US Dollar for each kg. of foreign origin gold smuggled out of Gaya International Airport.

6.2. The respondent authorities filed the criminal complaint under the provisions of the Customs Act and proceedings for confiscation has also been initiated against the petitioner. The petitioner was arrested pursuant to the criminal Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 complaint filed against him.

6.3. Now, it is the main contention of the petitioner that as he was in custody in connection with the aforesaid criminal complaint for the same incident, it was not open for the respondent authorities to pass the impugned order of detention under the provisions of the COFEPOSA Act. It is also contended on behalf of the petitioner that it was also open for the respondents to oppose the bail application and there was no apprehension on the part of the respondent authorities that the petitioner will indulge into similar type of activities if he is released on bail and, therefore, subjective satisfaction of the detaining authority is vitiated.

6.4. At this stage, we would like to refer the decisions upon which reliance has been placed by the learned Advocates appearing for the parties.

6.5. In the case of Ayya (supra), the Hon’ble Supreme Court has observed in paragraph 14 and 23 as under: -

14. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other. But the realities of executive excesses in the actual enforcement of the law Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 have put the courts on the alert, ever-ready to intervene and confine the power within strict limits of the law both substantive and procedural. The paradigms and value judgments of the maintenance of a right balance are not static but vary according as the “pressures of the day” and according as the intensity of the imperatives that justify both the need for and the extent of the individual curtailment liberty. readjustments are Adjustments and constantly to be made and reviewed. No law is an end in itself. The “inn that shelters for the night is not journey's end and the law, like the traveller, must be ready for the morrow”.

23. In the present case, we are not, however, impressed with the submission of Shri Garg that the detention was solely for the purpose of rendering nugatory the order of bail, the grant of which the detaining authority had then considered quite imminent. It is true that if the only ground or justification for the detention is the apprehension that the detenue was likely to be enlarged on bail, the detention might be rendered infirm. Shri Garg relied upon the following observations in Ramesh Yadav case [(1985) 4 SCC 232 : 1985 SCC (Cri) 514 : AIR 1986 SC 315] : [AIR p. 316 : SCC p. 234, SCC (Cri) p. 516, para 6] “On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025 carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” But, where, as here, there are other grounds, the reference by the detaining authority to the prospects of grant of bail could be no more than an emphasis on the imminence of the recurrence of the offensive activities of the detenue. Even a single instance of activity tending to harm “public order” might, in the circumstances of its commission, reasonably supply justification for the satisfaction as to a legitimate apprehension of a future repetition of similar activity to the detriment of “public order”. Likewise, without merit, is the contention as to the impermissibility of an order of detention being made against a person already in judicial custody. Even if a prosecution against a person fails or bail is granted an order of detention could be passed drawing the satisfaction therefor from the facts and circumstances involved in the criminal proceedings. An offender might secure an acquittal by intimidating witnesses. It all depends upon the circumstances of each case. But it is necessary for the detaining authority to resist the temptation to prefer and substitute, as a matter of course, the easy Patna High Court CR. WJC No.1309 of 2024(12) dt.17-02-2025