Criminal Lawyer: SC upholds detention order passed for smuggling of gold - supply of documents pari passu with detention grounds are not inviolable.

 Supreme Court of India

Justice R Banumathi and Justice A S Bopanna

The SC {Union of India versus Dimple Happy Dhakad} has set aside the judgement of the High court of Bombay, by which, HC quashed the detention orders passed under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the detaining authority, joint secretary, by allowing the appeal of the central government.

That in the said case, assail was successfully laid by the respondents before the High Court, of detention orders, on the ground that there was no application of Mind by the detaining authority in passing the detention Orders, and also that the detenues were not served with the copies of relied upon documents and material particulars along with the order of detention and ground of detention.

It was pointed submission of the respondents before the Supreme Court that the grounds of detention and relied upon documents are to be served on the detenues pari-passu, and in the instance case serving of the relied upon documents and ground of detention piecemeal deprives the detenues from making effective representation.

The SC while rejecting the contentions of the respondents and allowing the Appeal of the central government holds:

"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 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."

Accordingly, the detention orders were upheld and the judgment of HC was set aside.