REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      1064    2019 (Arising out of SLP(Crl.) No.5459 of 2019)

1. UNION OF INDIA                               

2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA, MINISTRY OF FINANCE   ...Appellants

VERSUS

DIMPLE HAPPY DHAKAD                   …Respondent                  

WITH

CRIMINAL APPEAL NO.     1066     2019 (Arising out of SLP(Crl.) No.5408 of 2019)

CRIMINAL APPEAL NO.     1067           2019 (Arising out of SLP(Crl.) No.5460 of 2019)

CRIMINAL APPEAL NO.   1065     2019 (Arising out of SLP(Crl.) No.5396 of 2019)

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. These  appeals  arise  out  of  the  judgment  dated

25.06.2019 passed by the High Court of Judicature at Bombay

1

in W.P. (Crl.) Nos.2843 and 2844 of 2019 in and by which the

High Court has quashed the detention orders dated 17.05.2019

passed against the detenues. The appellants-Union of India in

appeals arising out of SLP(Crl.)  Nos.5459 and 5460 of 2019

have  challenged  the  impugned  judgment  quashing  the

detention orders. While quashing the detention orders, the High

Court has stayed the operation of its own order for a period of

one week to enable the appellants to approach the Supreme

Court. Being aggrieved by the stay, the detenues-respondents

have preferred appeals arising out of SLP(Crl.) Nos.5396 and

5408 of 2019 before this Court.   All the appeals shall stand

disposed of by this common judgment.   

3. The facts giving rise to these appeals are that pursuant to

an  investigation  by  the  office  of  Directorate  of  Revenue

Intelligence in the matter of smuggling of foreign origin gold by

a  syndicate  of  persons  from  UAE  to  India.  On  28.03.2019

search  and  interception  of  two  vehicles  i.e.  a  Honda Activa

Scooter and a Honda City car was held.  It was noticed that

there were two persons Abdul Ahad Zarodarwala and Shaikh

Abdul Ahad, employee of Zarodarwala. Search of the vehicles

2

resulted in recovery of 75 kgs of gold in the form of five circular

discs  valued  at  Rs.24.5  crores.  Follow-up  searches  were

conducted  in  the  offices  and  residential  premises  of  the

connected persons resulted in further recovery of 110 kgs of

gold  and  currency  amounting  to  Rs.1.81  crores.   Shoeb

Zarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad

were summoned and their statements were recorded and they

are  alleged  to  have  made  statement  regarding  receiving  of

smuggled gold from respondent  detenu-Nisar  Pallathukadavil

Aliyar.  

4. Facts  in  SLP  (Crl.)  No.  5408  of  2018:  Case  of  the

appellants is that the respondent-detenu Nisar Pallathukadavil

Aliyar is a full-time organised smuggler of large quantities of

gold and is the mastermind of the smuggling syndicate and has

been smuggling gold into India since 2016. It is stated that two

companies,  viz.  M/s. Al  Ramz Metal  Scrap Trading and M/s.

Blue  Sea  Metal  FZE  were  floated  and  registered  by  the

appellant  in  the  name  of  one  Kalpesh  Nanda  for  exporting

metal scrap to India which is alleged to cover cargo to smuggle

gold.  It  is  alleged that detenue Nisar Aliyar ensured that the

3

sale proceeds of the smuggled gold were siphoned off to Dubai

through hawala. It is alleged that Nisar Aliyar created a wide

network of people to look after the operations at every stage

and was smuggling gold into India since 2016 and is alleged to

have  smuggled  more  than  3300  kgs  of  gold  having

approximate value of  Rs.1000 crores and is alleged to be a

mastermind  of  the  smuggling  syndicate.  Detenu  Nisar  Aliyar

was  arrested  on  31.03.2019  for  commission  of  offences

punishable under Section 135 of the Customs Act, 1962 and

his statement was recorded.  

5. Facts  in  SLP (Crl.)  No.  5396 of  2019:  Detenu-Happy

Arvindkumar Dhakad is a Director of Bullion Trading Firm and

is a jeweller.  As per the appellants, investigations revealed that

the husband of the detenu Happy Dhakad was directly dealt

with  Shoeb  Zarodarwala  and  Jignesh  Solanki  who  are  his

relatives  by  buying  gold  from  Nisar  Aliyar.  Detenu  Happy

Dhakad is  alleged to  have abetted Nisar  Aliyar  in  his  illegal

activities  of  receiving  and  concealing  smuggled  gold  and

disposing it off through his jewellery outlets and is said to have

played a vital role. It is alleged that through multiple jewellery

4

outlets owned by him and his relatives, detenu-Happy Dhakad

disposed of the foreign origin smuggled gold easily. Follow up

searches  were  conducted  at  various  offices  and  residential

premises of persons found connected with smuggling of gold. A

total  quantity  of  110  kgs  of  gold  was  recovered  from these

premises. Thirty-one pieces of gold carrying a total weight of

20.4  kgs  and  11.5  kgs  of  foreign  marked  gold  bars  totally

valued  at  Rs.10.21  crores,  Rs.  28.53  lakhs  cash  and

unaccounted cash of Rs.28.53 lakhs and Rs.44.50 lakhs were

seized  respectively  from the  office  and  residence  of  detenu

Happy  Dhakad and he did  not  have  any  documents  for  his

possession of gold. In his statement recorded on 29.03.2019,

detenu Happy Dhakad is alleged to have accepted that 20.4

kgs  of  gold  recovered  from  his  premises  was  from  the

smuggled gold supplied to him by appellant Nisar Aliyar and the

other 11.5 kgs of foreign marked gold was procured from other

sources. Detenu Happy Dhakad was arrested on 29.03.2019

for the offence punishable under Section 135 of the Customs

Act, 1962 and was remanded to judicial custody.

5

6. The Detaining Authority-Joint Secretary (COFEPOSA), on

being  satisfied  that  the  detenues  have  high  propensity  to

indulge in the prejudicial activities, with a view to prevent them

from  smuggling  and  concealing  smuggled  gold  in  future,

passed the orders of detention dated 17.05.2019 under Section

3 of  the  Conservation of  Foreign Exchange & Prevention of

Smuggling Activities Act,  1974 (COFEPOSA).   The detention

orders  and  the  grounds  of  detention  were  served  on  the

detenues  on  18.05.2019.   The  copies  of  the  relied  upon

documents were served on the detenues on 21.05.2019 and

22.05.2019.

7. The detention orders dated 17.05.2019 was assailed by

the detenues by filing writ petitions before the High Court.  The

High Court  vide interim order  dated 04.06.2019 directed the

appellant to consider the writ  petitions as a representation of

the detenues.  Accordingly, the representation was considered

and  the  same  was  rejected  by  the  Joint  Secretary

(COFEPOSA) who did not find any justification in modification

of the detention orders.

6

8. By the impugned order dated 25.06.2019, the High Court

quashed  the  detention  orders  by  holding  that  there  was  no

application of mind by the Detaining Authority in passing the

detention orders.  The High Court held that as per the principles

laid down in Kamarunnisa v. Union of India (1991) 1 SCC 128,

there was no application of mind indicating the satisfaction of

the detaining authority  that  there was imminent  possibility  of

detenues being released on bail.  The High Court also held that

though  the  detention  orders  and  grounds  of  detention  were

served on the detenues on 18.05.2019, the detenues were not

served with the copies of relied upon documents and material

particulars along with the orders of detention and grounds of

detention  and  there  was  violation  of  Article  22(5)  of  the

Constitution of India and violation of Guideline No.21 of “Hand

Book on Compilation of Instructions on COFEPOSA matters”.

The High Court did not accept the contention of the Department

that the preparation of copies of documents and bulk of records

did  not  enable  the  respondents  to  serve  the  relied  upon

documents simultaneously  with  the orders  of  detention upon

the respondents.  Holding that the preventive detention was in

7

violation of Articles 21 and 22(5) of the Constitution of India and

the Guidelines, the High Court quashed the detention orders

dated  17.05.2019.   As  pointed  out  earlier,  the  High  Court,

however, stayed the operation of its own judgment for a period

of one week which we have extended.

9. Mr.  K.M.  Natraj,  learned  Additional  Solicitor-General

appearing for the appellant-Union of India has submitted that

the orders of detention and the grounds were served on the

detenues  on  18.05.2019  and  since  the  documents  were

voluminous containing 2364 pages, the copies of which were

served  on  the  detenues  on  21.05.2019  and  22.05.2019

respectively is well within the time period stipulated in Section

3(3) of the COFEPOSA Act. While so, it was submitted that the

High Court was not right in quashing the detention orders on

the ground that  the relied upon documents  were not  served

upon the detenues together with the detention orders and that

there was violation of Guideline No. 21 (Part  A of Do’s) and

Guideline No. 9 (Part B of Don’ts) which is only a guideline to

the  officers.  The  learned  Additional  Solicitor-General  further

submitted that  “Hand Book on compilation of  instructions on

8

COFEPOSA matters from July 2001 to February, 2007” is only

in the nature of guidelines for the officers of the department in

dealing with COFEPOSA matters and the said guidelines itself

direct  that  care to  be taken in  communication/service  of  the

detention  orders,  grounds  of  detention  and  relied  upon

documents and the statutory period of service laid down in the

COFEPOSA  Act.  The  learned  Additional  Solicitor-General

further submitted that based on the materials placed before the

detaining authority, the detaining authority satisfied itself as to

the likelihood of the detenues being released on bail and while

so, the High Court erred in quashing the detention orders on

the ground that in the detention orders “there was no finding

that there was real possibility of their being released on bail by

the Court”. The learned Additional Solicitor General urged that

the present case involves huge volume of gold systematically

smuggled into the country in the last three years and more than

3300 kgs of gold has been brought during the period from July

2018  to  March  2019  and  the  detaining  authority  after

considering that the detenues have propensity to indulge in the

offence  passed  the  detention  orders  and  such  subjective

9

satisfaction  of  the  detaining  authority  cannot  be  lightly

interfered with by the Court.  

10. Mr. Mukul Rohatgi, learned senior counsel appearing for

the detenues relied upon number of judgments and contended

that the grounds of detention and relied upon documents are to

be served on the detenues pari passu and in the instant case,

serving of the relied upon documents and grounds of detention

piecemeal  deprives  the  detenues  from  making  effective

representation. Taking us through the grounds of detention, the

learned senior counsel submitted that  the detaining authority

has  recorded  its  awareness  only  as  to  the  custody  of  the

detenues  and  the  dismissal  of  the  bail  application  and  the

satisfaction of the detaining authority as to the likelihood of the

detenues being released on bail is significantly absent and the

absence  of  such  satisfaction  vitiates  the  detention  orders.

Reliance was placed upon Kamarunnisa and other judgments.

The learned senior counsel  further  submitted that  it  was not

possible for the detaining authority to pass all fifteen detention

orders in one day after perusal of 2364 pages of documents

describing  role  of  each  individual  which  clearly  shows  non-

10

application of mind by the detaining authority. Placing reliance

upon  Rekha  v.  State  of  Tamil  Nadu  through  Secretary  to

Government and Another  (2011) 5 SCC 244, it was submitted

that  in  cases  of  preventive  detention  orders,  procedural

requirements  are  the safeguards  and non-compliance of  the

procedural  requirements  vitiates the detention orders.  It  was

submitted that upon consideration, the High Court has rightly

quashed the detention  orders  that  the  detention  order  is  an

infraction of Article 22(5) of the Constitution of India and non-

compliance of the Guidelines of “Hand Book on compilation of

instructions on COFEPOSA matters”  and the impugned order

warrants no interference.  

11. We have carefully considered the rival submissions and

perused  the  impugned order  and  other  materials  on  record.

We have also  carefully  gone through the various  judgments

relied  upon  by  both  sides.  The  following  points  arise  for

consideration in these appeals:-

(i) Whether the orders of detention were vitiated on the

ground that relied upon documents were not served

along  with  the  orders  of  detention  and  grounds  of

detention? Whether there was sufficient compliance

11

of the provisions of Article 22(5) of the Constitution of

India and Section 3(3) of the COFEPOSA Act?

(ii) Whether  the  High  Court  was  right  in  quashing  the

detention  orders  merely  on  the  ground  that  the

detaining authority has not  expressly satisfied itself

about the imminent possibility of the detenues being

released on bail?

12. The present  case relates to alleged smuggling of  huge

volume of gold of more than 3300 kgs of gold camouflaging it

with brass metal scrap. Detenue Nisar Aliyar is stated to be the

mastermind and kingpin of the syndicate who along with others

smuggled  gold  from  UAE  to  India.  Detenu  Happy  Dhakad

abetted  smuggling  by  receiving  smuggled  gold  from  Nisar

Aliyar and his group and disposing them off through jewellery

outlets run by him and his relatives.   The respondents were

arrested for the offence punishable under Section 135 of the

Customs  Act  on  29.03.2019  and  their  statements  were

recorded under Section 108 of the Customs Act. The orders of

detention  were  issued  on  17.05.2019.  The  detention  orders

along with grounds of detention were served on the detenues

on 18.05.2019. Since the documents were running into 2364

12

pages and there were fifteen detention orders passed against

various detenues, the compilation of documents was served on

detenues on 21.05.2019 and 22.05.2019 respectively.  Section

3(3)  of  COFEPOSA Act  states  that  “the detenue  should  be

communicated with the order of detention and the grounds as

soon as may be after detaining him but ordinarily not later than

five days……” According to the appellants, in the present case,

the orders of detention and the grounds were served on the

detenues on 18.05.2019. However, since the documents were

voluminous running about 2364 pages, the same was served

on the detenues on 21.05.2019 and 22.05.2019 respectively

which, of course, was within the time period stipulated under

Section 3(3) of the Act.  

13. In the detention orders dated 17.05.2019, though it was

expressly mentioned that the documents mentioned in the list

relied  upon  by  the  detaining  authority  are  served  upon  the

detenues  along  with  the  detention  orders,  the  relied  upon

documents  were  served  upon  the  detenues  between

20.05.2019  and  22.05.2019.   The  High  Court  quashed  the

detention  orders  dated  17.05.2019  on  the  ground  that  on

13

18.05.2019, the detention orders and the grounds of detention

were served on the detenues; but the relied upon documents

and  other  material  particulars  were  not  served  upon  the

detenues  together  with  the  grounds  of  detention.   After

extracting the relevant portion of the detention orders, the High

Court  held  that  though  it  was  stated  that  the  relied  upon

documents  were  served  upon  the  detenues  along  with  the

detention  orders,  actually  they  were  not  served  on  the

detenues together with the detention orders and the grounds of

detention and while so, the appellants cannot have recourse to

Section 3(3) of the COFEPOSA Act, 1974.  The relevant portion

of the detention orders where the detaining authority has stated

that  the  relied  upon  documents  are  being  served  upon  the

detenues along with the grounds of detention reads as under:-

“9.  While passing the Detention Order under the provisions of

the  Conservation  of  Foreign  Exchange  and  Prevention  of

Smuggling Activities Act, 1974, I have relied upon the documents

mentioned in the enclosed list, which are also being served to

you along with the Grounds of Detention.

10.  You i.e. Shri Happy Arvindkumar Dhakad have the right to

represent against your detention to the Detaining Authority, to the

Central  Government as well  as to the Advisory Board.  If  you

wish  to  avail  this  right,  you  should  send  your  representation

14

through  the  Jail  Authorities  where  you  are  detained,  in  the

manner indicated below…” [underlining added]

14. Guideline No.21 of Do’s of  “Do’s and Don’ts in handling

COFEPOSA matters”,  stipulates that the grounds of detention

and relied upon documents must be invariably served together

on the detenu (including the copies translated into the language

known to and understood by the detenu, wherever necessary)

and these should be served as quickly as possible but within

the  statutory  time  limit  of  five  days  from  the  date  of  his

detention.  In Part-B dealing with Don’ts of “Do’s and Don’ts in

handling COFEPOSA matters”,  Guideline No.9 lays down that

the grounds of detention and relied upon documents should not

be given on different dates.  For quashing it on the ground of

non-serving  of  the  grounds  of  detention  and  relied  upon

documents along with the detention orders, the High Court held

that  there was violation of  Guideline No.21  in Part-A dealing

with Do’s of “Do’s and Don’ts in handling COFEPOSA matters”,

and Guideline No.9 in Part-B dealing with the Don’ts of “Do’s

and Don’ts in handling COFEPOSA matters”.  Guideline No.21

15

and Guideline No.9  dealing with  “Do’s and Don’ts in handling

COFEPOSA matters”, read as under:-

“Do’s and Don’ts in handling COFEPOSA matters

A. Do’s  

………

21.  The Grounds of detention and the relied upon documents

be invariably  served  together  to  the detenu (including the

copies translated into the language known to and understood

by  the  detenu,  wherever  necessary)  and  these  should  be

served as quickly  as possible but  within the statutory  time

limit of five days from the date of his detention.  

B. Don’ts

……

9.  Grounds of detention and relied upon documents should

not be given on different dates.”

15. Contention  of  the  learned  senior  counsel  for  the

respondents is that though the detention orders served upon

the detenues states that the relied upon documents mentioned

in the list are also being served upon the detenues along with

the grounds of detention, the relied upon documents were not

actually served upon the detenues and such non-application of

mind  of  the  detaining  authority  vitiates  the  detention  orders

apart  from  depriving  the  detenu  from  making  effective

representation.  The learned senior counsel further submitted

16

that there is clear breach of the guidelines containing Do’s and

Don’ts  and  the  respondents  were  deprived  of  his  right  of

personal liberty without following the procedure established by

law.  The learned senior counsel submitted that the High Court

relied  upon  its  own  judgments  of  co-ordinate  Benches  in

Criminal  Writ  Petition  Nos.2/1996,  4/1996,  824/1995  and

690/1996 and rightly held that the relied upon documents were

not served together with the orders of detention and grounds of

detention on 18.05.2019 and hence, there is no question of the

appellants taking recourse to Section 3(3) of the COFEPOSA

Act.  

16. In support of his contention that the detention orders are

liable to be quashed on the ground that  the documents and

materials forming basis of the detention orders had not been

supplied, the learned senior counsel for the respondents placed

reliance upon Virendra Singh v. State of Maharashtra (1981) 4

SCC 562 and  Ana Carelina D’souza (Smt.) v.  Union of India

and others AIR 1981 SC 1620 and number of other judgments.

It  was  submitted  that  the  High  Court  rightly  relied  upon

Kamleshkumar Ishwardas Patel  v.  Union of  India and others

17

(1995) 4 SCC 51 wherein the Supreme Court  had observed

that  while discharging the constitutional  obligation to enforce

the fundamental rights of the people, more particularly, the right

to  personal  liberty,  the  gravity  of  the  allegations  cannot

influence  the  process  and  that  to  enforce  the  fundamental

rights  of  the  people,  more  particularly,  the  right  to  personal

liberty, certain minimum procedural safeguards are required to

be “zealously watched and enforced by the court”.

17. In  Virendra Singh,  the order of detention was passed on

09.10.1980 and the grounds of detention and other documents

and materials were supplied to the detenu on 01.11.1980 when

he was arrested; but without the documents and the materials

which were later served on 05.11.1980.  The Supreme Court

quashed the detention order and held as under:-

“1. …..Admittedly, the order of detention was passed on October

9,  1980  and  the  grounds  were  supplied  to  the  detenu  on

November  1,  1980  when  he  was  arrested  but  without  the

documents and materials which were supplied on November 5,

1980. The detenu made a representation on November 13, 1980

which was disposed of on December 13, 1980. In this case as

the documents and the materials forming the basis of the order

of detention had not been supplied to the detenu along with the

order of detention when the same was served on him, the order

18

is rendered void as held by this Court in Icchu Devi Choraria v.

Union of India (1980) 4 SCC 531 and in Shalini Soni v. Union of

India (1980) 4 SCC 544. Moreover, the order of detention suffers

from another infirmity, namely, that the representation made by

the detenu was disposed of by the detaining authority more than

a month after the representation was sent to it. No reasonable

explanation  for  this  delay  has  been  given  which  violates  the

constitutional  safeguards  enshrined  under  Article  22(5)  and

makes  the  continued  detention  of  the  detenu  void.  For  these

reasons, therefore, we allow this petition and direct the detenu to

be released forthwith.”

By  a  reading  of  the  above  that  as  there  was  a  long  gap

between  the  order  of  detention  and  the  arrest  and  also

inordinate  delay  in  considering  and  disposal  of  the

representation,  the  Supreme  Court  quashed  the  detention

order.

18. In yet another decision relied upon by the learned counsel

for  the respondents  i.e.  Ana Carelina D’souza,  facts are not

clear.  The detention order was quashed mainly on the ground

of  non-supply  of  the  relied  upon  documents  along  with  the

grounds of detention.  It is not known whether the statutory time

limit of five days was complied with or not.  It has been held by

the Supreme Court in several cases that mere service of the

grounds of  detention  is  not  in  compliance  of  the  mandatory

19

provision of Article 22(5) of the Constitution of India unless the

grounds  are  accompanied  with  the  documents  which  are

referred  to  are  relied  on  the  grounds  of  detention.   In  the

decisions  relied  upon by  the  learned  senior  counsel  for  the

respondents, the detention order was quashed in the facts and

circumstances  of  those  cases  viz.  (i)  that  the  relied  upon

documents were served beyond the statutory mandate of five

days; and (ii) that there was inordinate delay in disposal of the

representation.   The  decisions  relied  upon  by  the  learned

senior counsel for the respondents being in the factual context

of respective cases are not applicable to the present case.

19. Section 3(3) of the  Conservation of Foreign Exchange &

Prevention  of  Smuggling  Activities  Act,  1974  (COFEPOSA)

states that the detenu should be communicated with the order

of  detention  and  the  grounds  ‘as  soon  as  may  be’  after

detaining  him ‘but  ordinarily  not  later  than  five  days  and  in

exceptional cases and for reasons to be recorded in writing not

later than fifteen days from the date of detention.  Sub-section

(3) of Section 3 of the COFEPOSA Act, 1974 reads as under:-

“3.  Power to make orders detaining certain persons.

……

20

(1) + (2)……..

(3)   For  the  purposes  of  clause  (5)  of  Article  22  of  the

Constitution,  the  communication  to  a  person  detained  in

pursuance of a detention order of the grounds on which the order

has  been made  shall  be  made  as  soon  as  may  be  after  the

detention,  but  ordinarily  not  later  than  five  days,  and  in

exceptional  circumstances  and  for  reasons  to  be  recorded  in

writing, not later than fifteen days, from the date of  detention.”

[underlining added]

Section  3(3)  of  the  COFEPOSA Act  stipulates  the  statutory

period of five days to serve the grounds of  detention and in

exceptional circumstances and for reasons to be recorded not

later than fifteen days from the date of detention. Section 3(3)

of  the COFEPOSA Act  thus allows a leeway of  five days at

least  for  the  grounds of  detention and the documents  relied

upon in the grounds to be served on the detenues. By the term

“as soon as may be…..”, the statute considers five days as a

reasonable  time  in  normal  circumstances  to  convey  the

grounds of  detention to the detenues.   There is no statutory

obligation on the part  of  the detaining authority  to serve the

relied upon documents on the very same day of the service of

the order of detention.  In view of the time stipulated in Section

3(3) of COFEPOSA Act and the language used in Article 22(5)

21

of  the Constitution of  India “….earliest  opportunity…...”,  non-

serving of copies of documents together with detention order

cannot be a ground to quash the detention order.  

20.    In the case of  Sophia Gulam Mohd. Bham v. State of

Maharashtra and Others (1999) 6 SCC 593,  the  Supreme

Court  has held that  “the use of the words  “as soon as may

be…..”  indicate a positive action on the part  of  the detaining

authority in supplying the grounds of detention and that there

should not be any delay in supplying the grounds on which the

order of detention was based”. Likewise, it was held that “the

use of the terms “….earliest opportunity….” in Article 22(5) also

carry the same philosophy that there should not be any delay in

affording  adequate  opportunity  to  the  detenu  of  making  a

representation against  the order  of  detention”.  In  Icchu Devi

Choraria v. Union of India and Others (1980) 4 SCC 531,  the

Supreme Court  held  that  “clause  (5)  of  Article  22  and  sub-

section (3) of Section 3 of the COFEPOSA Act provide that the

grounds of  detention should be communicated to the detenu

within five or fifteen days, as the case may be”. The expression

“as  soon  as  may  be”  cannot  be  read  in  isolation  from  the

22

phrase “but ordinarily not  later than five days”.   [Vide  Jasbir

Singh v. Lt. Governor, Delhi and another (1999) 4 SCC 228].

On a proper construction of clause (5) of Article 22 read with

Section 3(3) of the COFEPOSA Act, 1974, it is necessary that

documents and other materials relied upon in the grounds of

detention should be furnished to the detenu along with grounds

of  detention  or  in  any event  not  later  than five days and in

exceptional circumstances and for reasons to be recorded in

writing not later than fifteen days from the date of detention.  

21. In the present case, the detention orders and the grounds

of  detention were served upon the detenues on 18.05.2019.

The relied upon documents were served upon them between

20.05.2019 and 22.05.2019 i.e. within five days from the date

of serving of detention orders i.e. 18.05.2019.  As pointed out

earlier,  Section  3(3)  of  COFEPOSA  Act  provides  for  the

statutory period of five days to serve the grounds of detention

and the relied upon documents.  It  was pointed out  that  the

relied  upon  documents  were  running  into  2364  pages  and

fifteen detention orders were passed against various detenues

and therefore, the compilation of the documents was served on

23

the  detenues  on  21.05.2019.  As  rightly  contended  by  the

learned Additional Solicitor-General, the preparation of copies

of voluminous documents was a time-consuming process and it

took  time  to  serve  the  compilation  of  documents  upon  the

detenues  and  therefore,  the  orders  would  not  be  illegal.

Section  3(3)  of  COFEPOSA  Act  mandates  to  furnish  the

documents within five days.  Admittedly, the copies have been

furnished  within  the  said  period.   The  statutory  requirement

therefore has been complied with.   

22. There  is  no  statutory  obligation  on  the  part  of  the

detaining authority to serve the grounds of detention and relied

upon documents on the very same day; more so, when there is

nothing  to  show  that  the  detaining  authority  was  guilty  of

inaction or negligence.  The principle laid down by the Supreme

Court in  Mehdi Mohamed Joudi v.  State of Maharashtra and

others (1981) 2 SCC 358 that non-supply of documents and

material  pari passu would vitiate the detention order must be

understood in the context of Section 3(3) of the COFEPOSA

Act.   Serving  of  detention  order,  grounds  of  detention  and

supply of documents must be contemporaneous as mandated

24

within the time limit of five days stipulated under Section 3(3) of

the  COFEPOSA Act  and  Article  22(5)  of  the  Constitution  of

India.  

23. In Jasbir Singh v. Lt. Governor, Delhi and another (1999)

4 SCC 228, it  was held that for computing the period of five

days, the date on which the detention order was served has to

be excluded.  In the case in hand, therefore for computing the

period of five days, the date 18.05.2019 has to be excluded.

The grounds of detention and the relied upon documents have

been served upon the detenues from 20.05.2019 to 22.05.2019

which is well within the statutory period of five days and there is

no infraction of sub-section (3) of Section 3 of the COFEPOSA

Act.   

24. 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

25

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.

25. The  “Hand  Book  on  Compilation  of  Instructions  on

COFEPOSA  matters”  from  July  2001  to  February  2007  –

contain instructions of do’s and don’ts to be followed relating to

COFEPOSA matters.  Referring to Guideline No.21 (Part A of

Don’s  and  Don’ts  in  handling  COFEPOSA  matters)  and

Guideline  No.9  (Part  B  of  Don’s  and  Don’ts  in  handling

COFEPOSA matters), the High Court held that there is violation

of the guidelines which would vitiate the detention orders.

26. 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

26

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.

27. The  High  Court  quashed  the  detention  orders  on  yet

another  ground  that  the  detaining  authority  has  to  record

grounds of detention indicating the reasons with the satisfaction

that there is imminent possibility of detenue’s release from the

custody and after release, such person is likely to continue to

indulge  in  the  prejudicial  activities  and  the  detention  orders

nowhere  expressly  mention  the  satisfaction  of  the  detaining

authority as to the imminent possibility of the detenue’s release

on bail and continue to indulge in the prejudicial activities.  The

High Court held that the tests laid down in Kamrunnissa are not

satisfied. The High Court held that mere role played by detenu

Nisar Aliyar in smuggling gold or role of another detenu Dimple

Happy Dhakad in aiding and abetting Nisar Aliyar in the illegal

activities  of  smuggling  do  not  dispose  with  the  necessity  of

27

recording satisfaction that there is no imminent possibility of the

detenues being released on bail.

28. Drawing  our  attention  to  the  grounds  of  detention,  the

learned senior counsel for the respondents has submitted that

the detaining authority has recorded its awareness as to the

custody  of  the  detenues  and  the  dismissal  of  their  bail

applications.   It  was  submitted  that  the  satisfaction  of  the

detaining  authority  as  to  the  imminent  possibility  of  the

detenues being released on bail  is significantly absent which

vitiates  the  detention  orders.   Placing  reliance  upon

Kamrunnissa, it was submitted that when the detention orders

do not record the satisfaction of the detaining authority as to

the  possibility  of  detenues  being  released  on  bail  and  if  so

released,  there  is  likelihood  of  their  indulging  in  prejudicial

activities;  and absence of  finding as to  the possibility  of  the

detenu being released on bail would vitiate the detention order

and  the  High  Court  rightly  quashed  the  detention  orders.

Placing reliance upon number of judgments, the learned senior

counsel submitted that  the preventive detention order should

28

not  be  passed  merely  to  pre-empt  or  circumvent  the

enlargement on bail.  

29. The  learned  Additional  Solicitor-General  has  submitted

that  the  detaining  authority  was  aware  that  the  detenu  was

already in custody up to 20.05.2019 which is clearly recorded in

the  grounds  of  detention.  Taking  us  through  the  grounds  of

detention,  the learned Additional  Solicitor-General  urged that

the detaining authority has succinctly brought out the role of the

detenu in the smuggling syndicate and thereafter recorded the

satisfaction  as  to  detenu’s  propensity  and  likelihood  of  his

indulging  in  the  smuggling  activity  and  the  subjective

satisfaction of the detaining authority based upon the material

particulars cannot be interfered with by the court.  In support of

his  contention,  the  learned  ASG placed  reliance  upon  Vijay

Kumar v. Union of India and others (1988) 2 SCC 57 and other

judgments.

30. 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

29

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.  

31. After reviewing all the decisions, the law on the point was

enunciated  in  Kamarunnisa  v.  Union  of  India  and  Another

(1991) 1 SCC 128 where the Supreme Court held as under:-

“13. From the catena of  decisions referred to above it  seems clear  to  us  that  even  in  the  case  of  a  person  in  custody  a

detention order can validly be passed (1) if the authority passing

the order is aware of the fact that he is actually in custody; (2) if

he has reason to believe on the basis of reliable material placed

before him (a) that there is a real possibility of his being released

on  bail,  and  (b)  that  on  being  so  released  he  would  in  all

probability  indulge  in  prejudicial  activity  and  (3)  if  it  is  felt

essential  to  detain  him  to  prevent  him  from  so  doing.  If  the

authority passes an order after recording his satisfaction in this

behalf, such an order cannot be struck down on the ground that

the proper course for the authority was to oppose the bail and if

bail  is  granted notwithstanding  such opposition,  to  question  it

before  a  higher  court.  What  this  Court  stated  in  the  case  of

Ramesh Yadav (1985) 4 SCC 232 was that ordinarily a detention

order should not be passed merely to pre-empt or circumvent

enlargement on bail  in cases which are essentially criminal  in

30

nature and can be dealt with under the ordinary law. It seems to

us well settled that even in a case where a person is in custody,

if the facts and circumstances of the case so demand, resort can

be had to the law of preventive detention. …….”

32. The same principle  was  reiterated in  Union of  India  v.

Paul  Manickam  and  Another  (2003)  8  SCC  342 where  the

Supreme Court held as under:-

“14. ……..  Where  detention  orders  are  passed  in  relation  to

persons  who  are  already  in  jail  under  some  other  laws,  the

detaining  authorities  should  apply  their  mind  and  show  their

awareness  in  this  regard  in  the  grounds  of  detention,  the

chances of release of such persons on bail.  The necessity of

keeping  such  persons  in  detention  under  the  preventive

detention laws has to be clearly indicated. Subsisting custody of

the detenu by itself does not invalidate an order of his preventive

detention, and the decision in this regard must depend on the

facts  of  the  particular  case.  Preventive  detention  being

necessary  to  prevent  the  detenu  from  acting  in  any  manner

prejudicial to the security of the State or to the maintenance of

public order or economic stability etc. ordinarily, it is not needed

when the detenu is already in custody.  The detaining authority

must show its awareness to the fact of subsisting custody of the

detenu and take that factor into account while making the order.

If  the  detaining  authority  is  reasonably  satisfied  with  cogent

materials that there is likelihood of his release and in view of his

antecedent  activities  which are  proximate in  point  of  time,  he

must be detained in order to prevent him from indulging in such

prejudicial  activities,  the detention order  can be validly  made.

Where  the  detention  order  in  respect  of  a  person  already  in

31

custody  does  not  indicate  that  the  detenu  was  likely  to  be

released on bail,  the order  would  be vitiated.  (See  N. Meera

Rani v.  Govt.  of  T.N.  (1989)  4  SCC  418  and  Dharmendra

Suganchand Chelawat v. Union of India (1990) 1 SCC 746) The

point  was gone into  detail  in  Kamarunnissa v.  Union of  India

(1991) 1 SCC 128. …...” [underlining added]

33. Whether  a  person  in  jail  can  be  detained  under  the

detention  law has  been the  subject  matter  for  consideration

before this Court time and again. In Huidrom Konungjao Singh

v. State of Manipur and Others (2012) 7 SCC 181, the Supreme

Court  referred  to  earlier  decisions  including  Dharmendra

Suganchand Chelawat v. Union of India (1990) 1 SCC 746 and

reiterated that if the detaining authority is satisfied that taking

into  account  the  nature  of  the  antecedent  activities  of  the

detenu, it is likely that after his release from custody he would

indulge in prejudicial activities and it is necessary to detain him

in order to prevent him from engaging in such activities.

34. In  Veeramani v. State of T.N.  (1994) 2 SCC 337 in para

(6), the Supreme Court held as under:-

“6. From the catena of decisions of this Court it is clear that even

in the case of a person in custody, a detention order can validly

be passed if the authority passing the order is aware of the fact

that he is actually in custody; if he has reason to believe on the

32

basis of the reliable material that there is a possibility of his being

released on bail and that on being so released, the detenu would

in  all  probabilities  indulge  in  prejudicial  activities  and  if  the

authority  passes  an  order  after  recording  his  satisfaction  the

same cannot be struck down.”

35. In the light of the well settled principles, we have to see, 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 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

33

recorded the antecedent  of  the detenues and its satisfaction

that detenues Happy Dhakad and Nisar Aliyar have the high

propensity to commit such offences in future.

36. The satisfaction of the detaining authority that the detenu

is already in custody and he is likely to be released on bail and

on being released, he is likely to indulge in the same prejudicial

activities is the subjective satisfaction of the detaining authority.

In  Senthamilselvi v.  State of T.N. and Another  (2006) 5 SCC

676,  the  Supreme  Court  held  that  the  satisfaction  of  the

authority coming to the conclusion that there is likelihood of the

detenu being released on bail  is  the “subjective satisfaction”

based on the materials and normally the subjective satisfaction

is not to be interfered with.  

37. 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

detenu Nisar Aliyar has been indulging in smuggling gold and

34

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 detenu Happy Dhakad 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,  in our view, 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.  

38. Guideline No.24 of (Part A of Do’s) stipulates that when

the detenu was in judicial custody, the detaining authority has

to record in the grounds of detention its awareness thereof and

then  indicate  the  reasons  for  the  satisfaction  that  there  is

imminent possibility of his release from the custody and after

release such person is likely to continue to indulge in the same

35

prejudicial activities. As discussed earlier, the detention order

shows the application of mind of the detaining authority based

on the materials available on record, facts and circumstances

of  the  case,  nature  of  activities  and  the  propensity  of  the

detenues indulging in such activities.  

39. After  we  have  reserved  the  matter  for  judgment,  the

learned senior counsel for  the respondent-detenu has drawn

our  attention  to  the  detention  order  No.PD-12001/34/2019-

COFEPOSA  dated  01.07.2019  passed  against  one  Ashok

Kumar  Jalan  (Kolkata)  under  the  COFEPOSA  Act  and

submitted  that  in  the  said  detention  order,  the  detaining

authority  –  Joint  Secretary  (COFEPOSA)  has  recorded  the

satisfaction as to the likelihood of the detenu being released on

bail and in the present case, non-recording of such satisfaction

clearly indicates non-application of mind.  The said detention

order dated 01.07.2019 has no relevance to the present case.

It does not strengthen the contention of the respondent as to

the  non-application  of  mind  of  detaining  authority,  which

contention we have rejected for the reasons recorded supra.

36

40.  The learned senior counsel for detenues submitted that

personal liberty and compliance of procedural safeguards are

the prime consideration and since the procedural requirements

are  not  complied  with  violating  the  personal  liberty  of  the

detenues, the High Court rightly quashed the detention orders

and the same cannot be interfered with. As discussed earlier, in

the case in hand, the procedural safeguards are complied with.

Insofar as the contention that the courts should lean in favour of

upholding  the  personal  liberty,  we  are  conscious  that  the

Constitution  and  the  Supreme  Court  are  very  zealous  of

upholding the personal liberty of an individual. But the liberty of

an individual has to be subordinated within reasonable bounds

to  the  good  of  the  people.   Order  of  detention  is  clearly  a

preventive  measure  and  devised  to  afford  protection  to  the

society.  When the preventive detention is aimed to protect the

safety  and  security  of  the  nation,  balance  has  to  be  struck

between liberty of an individual and the needs of the society.

41. Observing that the object of preventive detention is not to

punish a man for having done something but to intercept and to

37

prevent him from doing so, in Naresh Kumar Goyal v. Union of

India and others (2005) 8 SCC 276, it was held as under:-

“8. It is trite law that an order of detention is not a curative or

reformative or punitive action, but a preventive action, avowed

object of which being to prevent the antisocial and subversive

elements  from  imperilling  the  welfare  of  the  country  or  the

security of the nation or from disturbing the public tranquillity or

from indulging in smuggling activities or from engaging in illicit

traffic  in  narcotic  drugs  and  psychotropic  substances,  etc.

Preventive detention is devised to afford protection to society.

The authorities on the subject have consistently taken the view

that  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 so………”.

42. Considering  the  scope  of  preventive  detention  and

observing that it is aimed to protect the safety and interest of

the  society,  in  State  of  Maharashtra  and  others  v.  Bhaurao

Punjabrao Gawande (2008) 3 SCC 613, it was held as under:-

“36. Liberty  of  an  individual  has  to  be  subordinated,  within

reasonable bounds, to the good of the people. The framers of

the  Constitution  were  conscious  of  the  practical  need  of

preventive detention with a view to striking a just and delicate

balance  between  need  and  necessity  to  preserve  individual

liberty and personal freedom on the one hand and security and

safety  of  the country  and interest  of  the society  on the other

hand.  Security  of  State,  maintenance  of  public  order  and

38

services  essential  to  the  community,  prevention  of  smuggling

and blackmarketing activities, etc. demand effective safeguards

in the larger interests of  sustenance of a peaceful  democratic

way of life.

37. In  considering  and  interpreting  preventive  detention  laws,

courts ought to show greatest concern and solitude in upholding

and safeguarding the fundamental right of liberty of the citizen,

however,  without  forgetting  the historical  background in  which

the necessity—an unhappy necessity—was felt by the makers of

the  Constitution  in  incorporating  provisions  of  preventive

detention in the Constitution itself. While no doubt it is the duty of

the court to safeguard against any encroachment on the life and

liberty of individuals, at the same time the authorities who have

the responsibility to discharge the functions vested in them under

the law of the country should not be impeded or interfered with

without  justification (vide  A.K.  Roy v.  Union of  India  (1982)  1

SCC 271,  Bhut Nath Mete v.  State of W.B.  (1974) 1 SCC 645,

State  of  W.B. v.  Ashok  Dey  (1972)  1  SCC 199 and  ADM v.

Shivakant Shukla (1976) 2 SCC 521).” [underlining added].

43. The court must be conscious that the satisfaction of the

detaining authority is “subjective” in nature and the court cannot

substitute  its  opinion  for  the  subjective  satisfaction  of  the

detaining authority and interfere with the order of detention. It

does not mean that the subjective satisfaction of the detaining

authority  is  immune  from  judicial  reviewability.  By  various

decisions,  the  Supreme  Court  has  carved  out  areas  within

39

which the validity of subjective satisfaction can be tested. In the

present case, huge volume of gold had been smuggled into the

country unabatedly for the last three years and about 3396 kgs

of the gold has been brought into India during the period from

July  2018  to  March,  2019  camouflaging  it  with  brass  metal

scrap.  The detaining  authority  recorded finding  that  this  has

serious  impact  on  the  economy  of  the  nation.  Detaining

authority  also  satisfied  that  the  detenues have propensity  to

indulge in the same act of smuggling and passed the order of

preventive detention, which is a preventive measure.  Based on

the documents and the materials placed before the detaining

authority and considering the individual role of the detenues,

the  detaining  authority  satisfied  itself  as  to  the  detenues’

continued propensity and their inclination to indulge in acts of

smuggling  in  a  planned  manner  to  the  detriment  of  the

economic security of the country that there is a need to prevent

the detenues from smuggling goods. The High Court erred in

interfering with the satisfaction of  the detaining authority and

the impugned judgment cannot be sustained and is liable to be

set aside.  

40

44. In the result,  the impugned judgment of the High Court

dated 25.06.2019 in  W.P.  (Crl.)  Nos.2843 and 2844 of  2019

quashing  the  detention  orders  of  the  detenues  viz.  Happy

Arvindkumar  Dhakad  and  Nisar  Pallathukadavil  Aliyar  is  set

aside and the appeals preferred by Union of India are allowed.

Consequently,  the  appeals  preferred  by  the  detenues  shall

stand dismissed.

…………………………..J.                                                                   [R. BANUMATHI]

…………………………..J.                                                              [A.S. BOPANNA]

New Delhi; July 18, 2019

41