In a significant legal development, the Supreme Court has resolved the challenge regarding the quashing of detention orders in the case involving Nisar Aliyar and Happy Dhakad. The court’s decision provides crucial insights into the nuanced aspects of preventive detention laws and procedural safeguards. This judgment addresses the concerns raised regarding the application of mind by the detaining authority and the timely service of relied-upon documents, ensuring a balanced approach towards the right to personal liberty and national security.
Facts
- Detenue Nisar Aliyar is the mastermind and kingpin of the syndicate involved in smuggling gold from UAE to India.
- Detenu Happy Dhakad abetted smuggling by receiving smuggled gold from Nisar Aliyar.
- The detention orders dated 17.05.2019 against the detenues were quashed by the High Court on the grounds of violation of constitutional safeguards under Article 22(5).
- The High Court found that the detenues were not served with copies of relied upon documents along with the detention orders and grounds of detention.
- The High Court extended the stay on its judgment to allow the appellants to approach the Supreme Court.
- The High Court quashed the detention orders citing a lack of application of mind by the Detaining Authority.
- The principles laid down in Kamarunnisa v. Union of India were referred to by the High Court regarding application of mind by the detaining authority.
- The detention orders were served on the detenues on 18.05.2019, but the relied upon documents were not served along with the grounds of detention.
- The appellants challenged the judgment quashing the detention orders through appeals in the Supreme Court.
- Due to the large volume of documents, the compilation was served to detenues on 21.05.2019 and 22.05.2019.
- The High Court stayed the operation of its order for one week to allow the appellants to approach the Supreme Court as per the COFEPOSA Act.
- The Detaining Authority passed detention orders on 17.05.2019 under COFEPOSA.
- Documents were served on the detenues on 21.05.2019 and 22.05.2019.
- Investigations revealed connections between detenue Happy Dhakad and Nisar Aliyar.
- Detenue Happy Dhakad admitted to receiving smuggled gold.
- Detenue Happy Dhakad was arrested on 29.03.2019 for Customs Act offences.
- Detenue Happy Dhakad was involved in abetting Nisar Aliyar in smuggling activities.
- Multiple jewellery outlets owned by detenue were involved in disposing of smuggled gold.
- Follow-up searches revealed significant amounts of gold recovered.
- Representation against detention was rejected.
- Detenues filed writ petitions against detention orders on 18.05.2019.
- Detenue Nisar Aliyar was arrested on 31.03.2019.
- Searches resulted in significant gold and currency recovery.
- Detention orders mentioned serving documents along with grounds, served later.
- Detaining authority relied on documents for passing the Detention Order.
- Detenues had the right to represent against detention to various authorities.
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Issue
- Whether the High Court was correct in quashing the detention orders solely on the basis of the lack of express satisfaction by the detaining authority regarding the imminent possibility of the detenues being released on bail.
- Controversy over the quashing of the detention order as an infringement of Article 22(5) of the Indian Constitution and non-compliance with the Guidelines of the ‘Hand Book on compilation of instructions on COFEPOSA matters’.
- Analysis of the arguments presented and the judgments referred to by both sides regarding the legality of the detention orders.
- The key issues for consideration in the appeals including the service of relied-upon documents along with the detention orders and compliance with the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act.
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Arguments
- The learned Additional Solicitor-General argued that the detention orders and grounds were served within the stipulated time period as per Section 3(3) of the COFEPOSA Act.
- Challenges were raised on the High Court’s decision to quash the detention orders based on the non-simultaneous service of relied-upon documents and grounds of detention, citing violations of guidelines that are only advisory in nature.
- Reference was made to the necessity of procedural safeguards in preventive detention orders, emphasizing the importance of compliance with procedural requirements.
- Concerns were raised regarding the detaining authority’s application of mind in passing fifteen detention orders in one day after reviewing voluminous documents, indicating potential lack of due diligence.
- The argument was made that the detaining authority’s awareness of the detenues’ custody status and bail dismissal was insufficient, highlighting the absence of satisfaction regarding the likelihood of detenues being released on bail.
- Instances from past cases were cited to support the contention that non-compliance with mandatory provisions, such as failure to supply relied-upon documents along with grounds of detention, can invalidate detention orders.
- The detaining authority’s satisfaction with the detenues’ propensity to engage in criminal activities was emphasized as a crucial factor in justifying the detention orders.
- Discrepancies in the service of relied-upon documents and grounds of detention were pointed out as violations of procedural guidelines, leading to the deprivation of the detenues’ right to effective representation.
- The importance of following established legal procedures and guidelines in preventive detention cases was reiterated, highlighting the court’s role in safeguarding fundamental rights, particularly the right to personal liberty.
- The detaining authority must be aware of the fact that the detenu is already in custody before passing an order of detention.
- The detaining authority must be satisfied that the detenu, who is in custody, is likely to be released and indulge in prejudicial activities upon release.
- The purpose of detention is to prevent the detenu from engaging in such prejudicial activities.
- The case law on this point was summarized in the case of Kamarunnisa v. Union of India, where the Supreme Court provided the key principles regarding detention of a person already in custody.
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Analysis
- The High Court erred in quashing the detention orders on the grounds of documents not being supplied pari passu with the detention orders, as per Section 3(3) of the COFEPOSA Act.
- The detention orders and relied upon documents were served within the statutory period of five days, complying with the requirements of the COFEPOSA Act.
- The detaining authority’s satisfaction regarding the detenu’s likelihood of being released on bail is subjective and based on materials, as upheld by previous judgments.
- The High Court’s quashing of detention orders based on non-explicit recording of the detaining authority’s satisfaction of detenu’s bail release was found to be erroneous.
- Guidelines No.21 and No.9 of handling COFEPOSA matters were fully complied with in serving the grounds of detention and relied upon documents.
- The detention orders are preventive measures aimed at protecting society without being punitive in nature, as clarified by Supreme Court judgments.
- The balance between personal liberty and societal needs is crucial in cases of preventive detention, as the objective is to intercept unlawful activities.
- The detaining authority’s application of mind based on evidence and circumstances of the case was evident in the detention orders.
- The ‘Hand Book on Compilation of Instructions on COFEPOSA matters’ serves as guidelines for officials, and in this case, they were followed adequately.
- Preventive detention is viewed as a necessary measure to maintain the delicate balance between individual liberty and national security
- Detention orders should be carefully considered, especially for individuals already in custody
- The satisfaction of the detaining authority is subjective and not immune from judicial review
- The detaining authority must have solid reasons to believe that the individual, even if in custody, may engage in prejudicial activities upon release
- Courts must uphold the fundamental right of liberty while recognizing the historical context behind preventive detention laws
- Serving of detention orders and related documents must be timely and contemporaneous, as mandated by relevant laws
- Preventive detention can be valid even for individuals already in custody, under certain circumstances
- The necessity of preventive detention must be clearly indicated, with a focus on national security and public order
- The subjective satisfaction of the detaining authority should not be substituted by the court’s opinion
- Proper safeguards are essential for the effective functioning of preventive detention laws in maintaining a peaceful democratic society
- Section 3(3) of the COFEPOSA Act sets a time limit of five days to convey the grounds of detention to the detenues.
- In exceptional circumstances, and with recorded reasons, the grounds can be conveyed within fifteen days from the date of detention.
- The term ‘as soon as may be’ in the statute implies that five days is considered a reasonable time for conveying the grounds of detention.
- There is no legal requirement for the detaining authority to serve the relied upon documents on the same day as the detention order.
- Based on the language in Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act, delayed service of documents along with the detention order cannot be a basis for quashing the order.
- In the case of Sophia Gulam Mohd. Bham v. State of Maharashtra and Others (1999) 6 SCC 593, the Supreme Court emphasized the importance of timely supply of grounds of detention, interpreting ‘as soon as may be’ as requiring prompt action by the detaining authority.
- Detaining authority satisfied with the evidence against the detenues
- Detenues deemed to have continued propensity for smuggling
- Detaining authority identified detenues’ inclination for planned smuggling
- Prevention of detenues from smuggling deemed necessary for national economic security
- High Court’s interference with detaining authority’s satisfaction deemed erroneous
- Impugned judgement not sustainable and to be set aside
Decision
- High Court judgment dated 25.06.2019 in W.P. (Crl.) Nos.2843 and 2844 of 2019 quashing the detention orders of Happy Arvindkumar Dhakad and Nisar Pallathukadavil Aliyar is set aside.
- Appeals preferred by Union of India are allowed.
- Appeals preferred by the detenues, Happy Arvindkumar Dhakad and Nisar Pallathukadavil Aliyar, shall stand dismissed.
Case Title: UNION OF INDIA Vs. DIMPLE HAPPY DHAKAD
Case Number: Crl.A. No.-001064-001064 / 2019
