Delhi High Court
Sushmeet Kaur vs Union Of India & Anr on 23 July, 2020
#J-1
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On: 09.07.2020
Judgment Pronounced On: 23.07.2020
W.P.(CRL) 474/2020
SUSHMEET KAUR ..... Petitioner
versus
UNION OF INDIA & ANR .....Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Ramkant Gaur, Advocate
For the Respondents : Mr. Ajay Digpaul, CGSC for UOI
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. MR. JUSTICE TALWANT SINGH
JUDGMENT
SIDDHARTH MRIDUL, J (via Video Conferencing)
1. The present writ petition under Article 226 of the Constitution
of India read with Section 482 of the Code of Criminal Procedure,
1973, has been instituted by Sushmeet Kaur, the petitioner herein, who
is the wife of Shri Greeshm Sharma (hereinafter referred to as 'the
Detenue'), and essentially prays for a writ in the nature of habeas
corpus seeking quashing of the Detention order bearing No.PD-12002/
11/2019-COFEPOSA dated 19.07.2019 (for short 'Detention Order')
issued by the Joint Secretary to Government of India, Respondent
No.2 herein (hereinafter referred to as the 'Detaining Authority'),
directing the Detenue's detention under section 3 (1) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred to as 'COFEPOSA').
2. The factual matrix as is relevant and germane for the
adjudication of the present proceeding, is adumbrated as follows:
i. On receipt of specific intelligence, a passenger namely, Shri
Raju Singh Sachdeva (for short 'Shri Sachdeva'), resident of
SF/2 Prerna Apartment, New Gandhi Nagar, Ghaziabad,
U.P.-201001, holder of Indian Passport No. R3111421,
issued at Ghaziabad, was intercepted near the Exit Gate of
the Arrival Hall, Terminal-I, IGI airport, New Delhi on
16.05.2019. Shri Sachdeva had arrived from Bangkok to
Varanasi by flight No. 6E 98 dated 16.5.2019 and from
Varanasi to New Delhi by flight No. 6E 6635 on the said
date. Shri Sachdeva was carrying one checked-in baggage
and two hand bags. Upon being asked by the Customs
Authorities whether he was carrying any dutiable or
prohibited goods, Shri Sachdeva replied in the negative.
However, not being convinced by his reply and in view of
the specific intelligence received, Shri Sachdeva was
brought to the Arrival Hall, Terminal 3 of the IGI Airport,
New Delhi for further examination. Thereafter, in the
presence of independent Panchas and after due service of
notice under Section 102 of the Customs Act, 1962
(hereinafter referred to as 'said Act') dated 17.05.2019, a
search of Shri Sachdeva's person as well as his baggage was
conducted by the Customs Officers, leading to the recovery
of the following items:
a) On personal and baggage search, following were
recovered:
(i) 232 (Two Hundred Thirty Two) silver
colour coated metal rings, having collective
weight 2001 grams, suspected to be made
of Gold, concealed as buckle rings in 29
sling bags;
(ii) 29 sling Bags used for concealment of item
at SL. No.1;
(iii) Two used mobiles (One Gionee and one
MI-6) and four mobile numbers, i.e.,
+919582152838 (Indian), +66619280350
(Bangkok), +919958079595 (Indian) and
+918700702083 (Indian);
(iv) One Acer Brand E-1-470 P series Laptop,
Model No. MS2376 Serial No.
33505064466;
(v) Baggage Tag No.6E 0312 782736;
(vi) Indian Passport No. R3111421 issued at
Ghaziabad on 09.10.2017;
(vii) Indian Currency Rs. 18,000/-;
(viii) Personal effects - Old and Used.
b) All items, except items at serial Nos. 1 to 5 above,
were returned to Shri Sachdeva on the spot. A copy of Shri
Sachdeva's Passport was also retained for further
investigation.
c) During the course of proceedings, the Jewellery
Appraiser was called who appraised the weight value and
purity of the recovered 232 (Two Hundred Thirty Two)
Silver colour coated metal rings and gave his Appraisement
Report dated 17.05.2019 which is summarized as under:
Rate of Gold as per Notification No. 36/2019-Customs (N.
T) dated 15.05.2019 in US $ 418 per 10 Grams Exchange
Rate of US$ as per notification No. 372019-Customs (N.T)
dated 16.05.2019 is Rs.71.15. As per the above said
notifications, total tariff value of the recovered Gold comes
to Rs.59,51,114/- (Rupees Fifty Nine Lakhs Fifty One
Thousand One Hundred Fourteen only). The market value
of the recovered Gold as per rate taken from the printout of
The Economic Times dated 17.05.2019 through Internet is
Rs.31,993/- per 10 gram and worked out to be
Rs.64,01,799/- (Rupees Sixty Four Lakhs One Thousand
Seven Hundred Ninety Nine only).
d) The entire proceedings above was recorded under
Panchnama dated 17.05.2019. Shri Sachdeva was asked to
produce documents/evidences, if any, regarding legal
possession of the recovered Gold, but he failed to produce
any such documents. Since Shri Sachdeva failed to produce
any documents regarding his legal possession of the
recovered Gold, the same was seized vide Seizure Memo
dated 17.05.2019 and placed inside a transparent plastic
container, wrapped with transparent adhesive tape and
sealed with Customs Seal bearing "Customs PC-IGI" on one
side and 'Ashoka Stambh' on another side over a paper slip
bearing the dated signatures of two independent Panchas,
Shri Sachdeva and the Customs Officers. A Detention
Receipt No.35301 dated 17.05.2019 was also issued in
respect of above said seized Gold. Further, all concealing
material viz. 29 sling bags were also placed in a bag and
sealed with Customs Seal bearing "Customs PC-IGl" on one
side and 'Ashoka Stambh' on another side over a paper slip
bearing the dated signatures of the independent Panchas,
Shri Sachdeva and the Customs Officers. A Detention
Receipt No.35302 dated 17.05.2019 was also issued against
it.
ii. During investigation of the case, the statement of Shri.
Sachdeva was recorded under section 108 of the said Act on
17.05.2019, wherein, he inter alia stated that, he could read,
write, speak and understand English and Hindi language;
that his family apart from him consisted of his wife and two
children who stay with him; that his wife was housewife
and his son and daughter were studying in 10th standard and
graduation respectively; that he was born and brought up in
Ghaziabad and that he was a law graduate from Meerut
University; that he was using two mobile phones (One
Gionee and one Ml-6) and four mobile numbers, i.e.,
+919582152838 (Indian), +66619280350 (Bangkok),
+919958079595 (Indian) and +918700702083 (Indian); that
in the year 2010, he started working as a property dealer at
Ghaziabad; that he did not have any office and operated
from his home; that he also worked as a commission agent
in providing loans to customers. Shri Sachdeva further
stated that on 16.05.2019 he had arrived in Varanasi from
Bangkok by flight No. 6E 98 and that he thereafter took a
domestic flight from Varanasi to New Delhi viz. flight No.
6E 6635. Shri Sachdeva also stated that he had with him
one trolley bag as his checked-in-baggage bearing tag No.
6E 0132782736 and that he was also carrying two hand
bags with him. Shri Sachdeva furthermore stated that in his
checked-in-baggage he was carrying 29 sling bags and that
as soon as he reached Arrival Hall of Domestic Airport
(Terminal-I), New Delhi he was intercepted by the Customs
Officers; that having reached the Arrival Hall, Terminal-3,
IGI Airport, New Delhi, his personal and baggage search
was conducted in the presence of two independent Panchas;
that thereafter thorough consensual examination of his
baggage resulted in the recovery of 232 Gold rings
collectively weighing 2001 grams, which were found
concealed as buckle rings in the said 29 sling bags carried
by him in his checked-in-baggage. Shri Sachdeva further
stated that towards the end of the year 2018, he was
introduced by the Detenue to one of his associates namely,
Ms. Neha (Mobile No.+918307986755), and that he was
persuaded by the Detenue and said Ms. Neha, inter alia to
smuggle gold with the same modus operandi that he had
employed during the current visit.
iii. Shri Sachdeva further stated that, he used to be contacted by
one unknown person at his Hotel room in Bangkok who
used to deliver to him the bags of readymade shirts and bags
containing concealed gold, which he used to deliver to the
Detenue or the latter's associates at a chosen place.
iv. Shri Sachdeva further admitted that on each of his total nine
visits to Bangkok, he had smuggled same quantity of gold,
employing the same modus operandi.
v. Shri Sachdeva unequivocally stated that, the recovered gold
belonged to the Detenue and Ms. Neha and, that the funds
for the purchase thereof were transferred by the Detenue to
one Shri Avtar, an associate of the Detenue, who also paid
amounts for his tickets, boarding and lodging.
vi. Lastly, Shri Sachdeva stated that upon his exit from the
airport Terminal he was to be contacted by the Detenue or
his associate, at a place chosen for the delivery of the
subject gold and he has also admitted to have illegally
imported gold weighing 14 Kilograms in total during his
seven previous visits, valued at Rs.4,16,57,798/-, thus
bringing the total value of the smuggled gold in the past and
during the current visit to a sum of Rs.4,76,08,912/-.
vii. In view of the afore-extracted depositions of Shri Sachdeva,
in relation to the Detenue's role and involvement in the
business of smuggling of gold hidden in garments, brought
from the Detenue's associates in Bangkok, surveillance was
kept on the latter's activities and his travel history and
thereafter the Detenue was finally apprehended on
30.06.2019. In the Detenue's statement recorded on
30.06.2019, under Section 108 of the said Act, it was stated
by the Detenue that, he was born and brought up in Delhi
and after completing his schooling from Ravindra Public
School, Pitampura he started doing choreography for
wedding events and also engaged himself in the business of
Event Management as a freelancer. The Detenue further
stated that he was facing acute financial crisis, he sought
assistance from his childhood friend namely, Tarun Jain in
the year 2014-15; who offered the Detenue to join his
business of trading of Gold by bringing the same from
Bangkok and selling it in Delhi for profit; and that the
Detenue was paid Rs.7,000/- per trip in addition to all
expenses of air travel and stay at Bangkok. It was further
deposed by the Detenue that after two trips, he temporarily
stopped smuggling Gold in this manner from 2014-15 till
November 2018. However, it was categorically admitted by
the Detenue that since November 2018 till May 2019, he
had made a total of 29 trips to Bangkok, out of which
approximately 18 to 20 trips were made exclusively at the
said Tarun Jain's behest to smuggle Gold and in between he
also made other trips in connection with his own
choreography business, resulting in total smuggling of Gold
in the afore-stated visits to 8350 grams approximately. The
details of Detenue's Bangkok trips and the purpose of his
visits as per his said statement under Section 108 of the said
Act have been enumerated as under:-
S.No. Date of Cash carried on Date of Qty of Gold
Departur Departure Arrival and its form
e from in India
India
1. 20.11.18 Packet of Un- 22.11.18 Wire Ring
quantified currency via 200gms
given by Tarun to Lucknow approx
handover to Avtar at
Bangkok
2. 24.11.18 Packet of Un- 25.11.18 Wire ring
quantified currency via 200gms
given by Tarun to Lucknow approx
handover to Avtar at
Bangkok
3. 27.11.18 Packet of Un- 28.11.18 Wire ring
quantified currency via 200gms
given by Tarun to Lucknow approx
handover to Avtar at
Bangkok
4. 04.12.18 Personal trips, for 06.12.18 Event
via choreography
choreography, Mumbai
Rs.2,00,000
5. 08.12.18 Un-quantified 08.12.18 250 gms
currency via approx
Lucknow
6. 10.12.18 Event purpose 12.12.18 Event
via choreography
Mumbai
7. 19.12.18 Un-quantified 20.12.18 Shirt
currency via Button250
Mumbai gms approx
8. 24.12.18 Un-quantified 26.12.18 Shirt Button
currency Delhi 250gms
approx.
9. 27.12.18 Event purpose 28.12.18 Event
Delhi choreography
10. 09.01.19 Un-quantified 09.01.19 500 gms
currency via approx.
Lucknow
11. 12.01.19 Event purpose 15.01.19 Event purpose
Delhi
12. 24.01.19 Un-quantified 26.01.19 450 gms
currency via approx
Varanasi
13. 28.01.19 Un-quantified 30.01.19 400 gms
currency via approx
Varanasi
14. 04.02.19 Un-quantified 06.02.19 450 gms
currency via approx
Varanasi
15. 11.02.19 Un-quantified 12.02.19 300 gms
currency via approx
Varanasi
16. 24.02.19 Un-quantified 26.02.19 500 gms
currency via approx
Varanasi
17. 27.02.19 Un-quantified 02.03.19 250gms
currency via approx
Varanasi
18. 05.03.19 Un-quantified 07.05.19 450 gms
currency via approx
Varanasi
19. 12.03.19 Un-quantified 14.03.19 400gms
currency via approx
Varanasi
20. 17.03.19 Event purpose 20.03.19 Event purpose
via
Lucknow
21. 21.03.19 Un-quantified 23.03.19 450 gms
currency via approx
Lucknow
22. 29.03.19 Un-quantified 03.04.19 350 gms
currency via approx
Lucknow
23. 05.04.19 Un-quantified 07.04.19 400 gms
currency via approx
Lucknow
24. 09.04.19 Un-quantified 12.04.19 500 gms
currency via approx
Lucknow
25. 18.04.19 Un-quantified 19.04.19 500 gms
currency via approx
Lucknow
26. 22.04.19 Un-quantified 24.04.19 400 gms
currency via approx
Lucknow
27. 27.04.19 Un-quantified 29.04.19 350 gms
via
currency Varanasi approx
28. 30.04.19 Event purpose 03.05.19 Event purpose
29. 08.05.19 Un-quantified 09.05.19 300 gms
currency approx
Therefore, the total Gold smuggled by the Detenue in his
admitted trips to Bangkok aggregates to 8350 grams
approximately.
viii. Another statement under Section 108 of the said Act of the
Detenue was recorded on 01.07.2019. On being questioned
about the role of Shri Avtar in the smuggling of gold under
the guise of the readymade garments; the Detenue stated
that, the former operates an electronic shop in the name of
Gulati Electronics, Patunam, Bangkok, Thailand and that
Shri Avtar used to deal with the persons carrying currency
from India by receiving the packet containing cash, which
was arguably counted by the said Shri Tarun Jain before
sending the same and used to be communicated to said Shri
Avtar in advance. Shri Avtar seldom counted the cash
carried by Detenue or other such persons. Shri Avtar would
visit the Detenue's hotel for a brief period to deliver
readymade garments or any other goods wherein gold was
concealed in exchange for the packet of the currency sent by
the said Shri Tarun Jain. Shri Avtar lived in Bangkok along
with his family and is stated to be a citizen of Thailand.
ix. Further, upon being asked about the role of Ms. Neha
Sharma and whether she used to act as a handler, it was
revealed that she used to plan smuggling of gold and illegal
export of foreign exchange to Thailand in connivance with
her husband Shri Tarun Jain and that she used to direct the
Detenue and other persons doing the same task on how to go
about the process of carrying cash and carrying foreign
currency and smuggling back gold. It was further stated by
the Detenue that Ms. Neha Sharma used to oversee the
financing, ticketing and hotel booking for the persons doing
the job; in addition to handing over foreign currency to the
outgoing persons, as well as receiving the smuggled Gold on
their return. On being asked about the role of Shri Sanjay
Basoya and Shri Raj Kumar, it was stated that they were
also carrying currency and gold like the Detenue on the
directions of Shri Tarun Jain and Ms. Neha Sharma. Further,
on being asked about the approximate currency carried at
the time of departure, it was revealed by the Detenu that the
same would be equivalent to gold brought from Thailand.
On being further asked, Detenue had disclosed of bringing
the abovementioned quantity of gold in India on the
direction of Shri Tarun Jain whose mobile number saved as
"T007" in the phone of Detenue. It was further disclosed by
him that the mobile no. of Ms. Neha Sharma was
8929607849, who had guided the Detenue in all the above
visits. Predicated on the Detenue's deposition and
categorical admission in relation to smuggling of foreign
currency and at least 8350 gms Gold, he was arrested under
section 104 of the said Act on 01.07.2019 vide Arrest Memo
dated 01.07.2019. On being produced before learned Chief
Metropolitan Magistrate, Patiala House Courts, New Delhi,
Detenue was forwarded to judicial custody till 15.07.2019
vide Order dated 01.07.2019 by learned CMM. The judicial
custody was further extended up to 29.07.2019.
x. That on 19.07.2019, the impugned Detention Order was
passed and served on the Detenu along with the grounds of
detention, admittedly on the 21.07.2019, whilst he was
already in judicial custody and lodged at Tihar Jail, Delhi.
xi. The Detenu filed his representation dated 24.08.2019, under
Article 22(5) of the Constitution of India read with Section
3(3) of the COFEPOSA, addressed to the Detaining
Authority, against the impugned detention order through the
jail authorities.
xii. The afore-stated detention order was confirmed by the
Advisory Board vide its order dated 09.10.2019, which
affirmed and ordained the detention of the Detenu for period
of one year from the date of his detention.
3. Mr. Ramkant Gaur, learned Counsel appearing on behalf of the
petitioner assails the Detention Order, firstly, on the ground that, the
Sponsoring Authority did not place the vital documents including the
Detenue's 'Letter Of Extrication' dated the 03.07.2019 before the
Detaining Authority, thereby vitiating the subjective satisfaction of the
latter and rendering the Detention Order invalid and illegal.
4. Mr. Ramakant Gaur, Advocate would then urge that the
Detention Order is also vitiated, since the Detaining Authority
considered his inculpatory statements dated 30.06.2019 and
01.07.2019, which were alleged to be in Detenue's handwriting, but
was prevented by the Sponsoring Authority from due consideration of
the 'Letter of Extrication' dated 03.07.2019, which was the only
document asserted by him to be in his handwriting and the
consideration of which in juxtaposition with his inculpatory statements
dated 30.06.2019 and 01.07.2019, would have clearly established that
the Detenue had not authored the latter.
5. Mr. Ramakant Gaur, Advocate would also urge that the
Detention Order is unsustainable in the light of the non-placement of
the Sponsoring Authority of other relevant documents, namely, the
alleged summons, issued to him, as well as, the non-production of the
'No-Recovery Panchnama', in relation to the raid conducted at his
residence on the 30.06.2019, before the Detaining Authority. It is,
therefore, urged on behalf of the Detenue that, vital and exonerating
material was withheld by the Sponsoring Authority from the scrutiny
of the Detaining Authority, thereby vitiating the Detention Order.
6. In order to buttress his submissions, Mr. Ramkant Gaur,
Advocate has placed reliance on the decision of the Hon'ble Supreme
Court in Asha Devi, w/o Gopal Gherman Mehta (Detenu) vs. K.
Shivraj, Addl. Chief Secretary to the Government of Gujarat)
reported as 1979 (1) SCC 222.
7. On the other hand, Mr. Ajay Digpaul, the Central Government
Standing Counsel, appearing on behalf of the Union of India invited
our attention to the circumstance that the Detaining Authority could
not consider the 'Letter of Extrication', dated 03.07.2019, since the
same was supplied by the Detenue to the Sponsoring Authority,
through proper channels, only after the issuance of the subject
Detention Order and therefore, this plea has been taken by the
petitioner only with a motive to mislead this Hon'ble Court. Insofar
as, the non-consideration of the 'Summons' and 'No Recovery
Panchnama' is concerned, it was pointed out that the same were not
documents relied upon by the Sponsoring Authority, since the same
were not relevant or germane for determining the gravity of the
offences alleged to have been committed by the Detenue, to the
satisfaction of the Detaining Authority. It was also urged on behalf of
the official respondent that the assertion made by the Detenue that his
voluntary statements, recorded under Section 108 of the said Act, were
not in his handwriting, as the same purportedly did not match with his
handwriting in the 'Letter of Extrication' dated the 03.07.2019, is false
to the knowledge of the Detenue, since the same was also duly
considered by the Advisory Board during its hearing and outrightly
rejected.
8. Lastly, Mr. Ajay Digpaul, learned CGSC would invite our
attention to the grounds of detention and in particular paragraphs
1(xii), (xiii), (xiv), (xvi), (xviii), 2,5,6 and 7, which are extracted
hereinbelow:
" (1) xii. In view of the depositions of Shri Raju Singh
Sachdeva about involvement of you i.e. Shri Greeshm
Shanna, surveillance was kept on you and you were
apprehended on 30.06.2019. Statement of you i.e. Shri
Greeshm Shanna were recorded under section 108 of the
Customs Act, 1962 on 30.06.2019 wherein you, inter-alia,
stated that you were born and brought up in Delhi; that
you did your schooling from Ravindra Public School,
Pitampura and completed your studies upto 12th standard
in Commerce stream with Maths in 2007; that after
passing your school, you started doing choreography for
wedding events and also engaged himself in the business
of Event Management as a freelancer. On being asked
whether you knew Shri Monish and Shri Vikas Kumar,
you admitted that you had met them at Rohini Metro
Station through Shri Tarun, Jain, who happened to be
your neighbour at Shakti Apartment, Sec-9, Rohini, New
Delhi-110085, in October 2018.
a) On being asked about your relationship with Shri
Tarun Jain, you stated that he (Tarun Jain) happened
to be your neighbour and they were acquainted with
each as friends since your childhood days but you
were not aware about his profession after they grew
up. Since your business of event management was
not going well, you were facing acute financial
crisis and he (Tarun Jain) was doing well in life and
was well off. Therefore, you asked him to find a job
for you where you could earn around Rupees 50 to
60 thousand per month so as to live a comfortable
life. In 2014-15 he (Tarun Jain) offered you to join
his business of trading of Gold by bringing it from
Bangkok and sell it in Delhi on profit. You agreed to
his proposal and made two trips to Bangkok for
transporting Gold on his advice for which he (Tarun
Jain) promised you to pay Rs.7,000/- per trip in
addition to all expenses of air travel and stay at
Bangkok. You admitted that in these 2 trips, you had
brought Gold in the form of buttons of ready made
shirts wherein you used to conceal Gold rings in the
buttons of shirt. These two trips were made from
Bangkok to Delhi via Calcutta and then from
Calcutta to Delhi by domestic flights for which all
expenses were paid by Shri Tarun Jain. You i.e.
Greeshm Sharma admitted that you used to
handover the Gold brought clandestinely to Shri
Tarun Jain but you were not aware as to how he was
disposing it off. You further deposed that after these
2 trips, you found this job non-remunerative and
stopped doing that from 2014-15 till November
2018.
b) On being asked, you i.e. Shri Greeshm Sharma
further deposed that once again you came in contact
with Shri Tarun Jain in 2018 when he persuaded you
to restart bringing the Gold using the same modus
operandi; as in June, 18 you visited Bangkok for
your own choreography business. Shri Tarun Jain
told you that when you were going to Bangkok for
your own business, why did not you restart bringing
Gold for him (Tarun Jain) on return and he (Tarun
Jain) promised you to take care of all your air travel
and lodging expenses for Bangkok trips. You i.e.
Shri Greeshm Sharma categorically admitted that
since November, 2018 till May, 2019, you had made
total 29 trips to Bangkok, out of which
approximately 18 to 20 trips were made exclusively
on Tarun Jain's behest and in between other trips
were made in connection with your own
choreography business. You provided the following
details of his Bangkok trips and the purpose of his
visits:-
S.No. Date of Cash carried on Date of Qty of Gold
Departure Departure Arrival and its form
from in India
India
1. 20.11.18 Packet of Un-quantified 22.11.18 Wire Ring
currency given by Tarun via 200gms
to handover to Avtar at Lucknow approx
Bangkok
2. 24.11.18 Packet of Un-quantified 25.11.18 Wire ring
currency given by Tarun via 200gms
to handover to Avtar at Lucknow approx
Bangkok
3. 27.11.18 Packet of Un-quantified 28.11.18 Wire ring
currency given by Tarun via 200gms
to handover to Avtar at Lucknow approx
Bangkok
4. 04.12.18 Personal trips, for 06.12.18 Event
via choreography
choreography,Rs.2,00,000 Mumbai
5. 08.12.18 Un-quantified currency 08.12.18 250 gms
via approx
Lucknow
6. 10.12.18 Event purpose 12.12.18 Event
via choreography
Mumbai
7. 19.12.18 Un-quantified currency 20.12.18 Shirt
via Button250
Mumbai gms approx
8. 24.12.18 Un-quantified currency 26.12.18 Shirt Button
Delhi 250gms
approx.
9. 27.12.18 Event purpose 28.12.18 Event
Delhi choreography
10. 09.01.19 Un-quantified currency 09.01.19 500 gms
via approx.
Lucknow
11. 12.01.19 Event purpose 15.01.19 Event
Delhi purpose
12. 24.01.19 Un-quantified currency 26.01.19 450 gms
via approx
Varanasi
13. 28.01.19 Un-quantified currency 30.01.19 400 gms
via approx
Varanasi
14. 04.02.19 Un-quantified currency 06.02.19 450 gms
via approx
Varanasi
15. 11.02.19 Un-quantified currency 12.02.19 300gms
via approx
Varanasi
16. 24.02.19 Un-quantified currency 26.02.19 500 gms
via approx
Varanasi
17. 27.02.19 Un-quantified currency 02.03.19 250gms
via approx
Varanasi
18. 05.03.19 Un-quantified currency 07.05.19 450 gms
via approx
Varanasi
19. 12.03.19 Un-quantified currency 14.03.19 400gms
via approx
Varanasi
20. 17.03.19 Event purpose 20.03.19 Event
via purpose
Lucknow
21. 21.03.19 Un-quantified currency 23.03.19 450 gms
via approx
Lucknow
22. 29.03.19 Un-quantified currency 03.04.19 350 gms
via approx
Lucknow
23. 05.04.19 Un-quantified currency 07.04.19 400 gms
via approx
Lucknow
24. 09.04.19 Un-quantified currency 12.04.19 500 gms
via approx
Lucknow
25. 18.04.19 Un-quantified currency 19.04.19 500 gms
via approx
Lucknow
26. 22.04.19 Un-quantified currency 24.04.19 400 gms
via approx
Lucknow
27. 27.04.19 Un-quantified currency 29.04.19 350 gms
via approx
Varanasi
28. 30.04.19 Event purpose 03.05.19 Event
purpose
29. 08.05.19 Un-quantified currency 09.05.19 300 gms
approx
Total Gold smuggled in the above visits is 8350 gms
approx.
c) On being further asked since you are a resident of
Delhi, why you had been routing through other
Airports of India while returning from Bangkok,
you i.e. Shri Greeshm Sharma stated that Varanasi
Airport, there was virtually no checking by Customs
or very little checking by them. You admitted that
this route was suggested by Shri Tarun Jain and you
were following the same route. Thereafter, you used
to catch domestic flight of Indigo Airlines to Delhi
which used to usually land at T-1, IGI Airport, New
Delhi, where there was no presence of Customs.
d) On being shown a group photograph and asked to
identify the persons therein, you identified all the
four persons as Shri Tarun Jain, Shri Vikrant, Shri
Sanjay Basoya and Shri Monish Kumar
respectively. On being shown a photograph of a
person in Blue Jersey and asked to identify him, you
identified him as Vikas Kumar.
xiii. Statement of you i.e. Shri Greeshm Sharma were again
recorded under section 108 of the Customs Act, 1962 on
01.07.2019; On being asked about the role of Shri Avtar
in the smuggling of Gold under guise of readymade
garments, you stated that he is running an electronic shop
Gulati Electronics, Patunam, Bangkok, Thailand and he
used to deal with the persons carrying currency from
India by taking the packet containing cash which was
presumably counted by Shri Tarun Jain before sending
and used to be communicated to Shri Avtar. He (Avtar)
seldom counted the cash carried by you or other such
person. He (Avtar) used to visit his hotel for a brief period
to deliver readymade garments or any other goods where
gold were concealed in exchange of the packet. Shri
Avtar lived m Bangkok along with his family and has
acquired citizenship of Thailand.
a) On-being asked about the role of Ms. Neha Sharma
and whether she used to act as a handler, you
disclosed that she used to plan smuggling of Gold
and illegal export of foreign exchange to Thailand in
connivance with her husband Shri Tarun Jain and
she used to direct you and other persons doing the
same job how to go about the process of carrying
cash and carrying foreign currency and bringing
back Gold. She used to oversee the financing,
ticketing and hotel booking for the persons doing
the job. Several times, she had handed over foreign
currency to the outgoing persons and had received
Gold on return.
(b) On being asked about the role of Shri Sanjay Basoya
and Shri Raj Kumar, you stated that they were also
carrying currency and Gold like you on the direction
of Shri Tarun Jain and Ms. Neha Sharma. On being
asked about the approximate currency carried at the
time of departure, you admitted that you used to
carry cash which would be equivalent to Gold
brought from Thailand. On being further asked, you
admitted that you had brought the abovementioned
quantity of Gold in India on the direction of Shri
Tarun Jain. You had his mobile number in your
mobile phone saved as "T007". You further
disclosed the mobile No. of Ms. Neha Sharma as
8929607849 who had guided you in all the above
visits.
c) In view of the depositions and categorical admission
with regard to smuggling of foreign currency and
atleast 8350 gms Gold, you i.e. Shri Greeshm
Sharma were arrested under section 104 of the
Customs Act, 1962 on 01.07.2019 vide Arrest
Memo dated 01.07.2019 and produced before the
Hon'ble Chief Metropolitan Magistrate, Patiala
House Courts, New Delhi, after your medical
examination conducted, at RML Hospital, New
Delhi. You i.e. Shri Greeshm Sharma was
forwarded to judicial custody till 15.07.2019 vide
Order dated 01.07.2019 of the Hon'ble Chief
Metropolitan Magistrate, Patiala House Courts, New
Delhi. The judicial custody has been further
extended up to 29.07.2019. You i.e. Shri Greeshm
Sharma have filed a bail application on 15.07.2019
(through your advocate) before the Hon'ble Court of
CMM, Patiala House, New Delhi, which is fixed for
hearing on 22.07.2019. In the said bail application
you i.e. Shri Greeshm Sharma have alleged that you
were asked to sign the pre narrated statements and
blank papers under force and coercion and you were
also beaten up to admit your involvement in the
same gold case. You i.e. Shri Greeshm Sharma have
also alleged that you were falsely implicated in the
said case.
xiv. During investigation of the case, forensic examination of
the Pen Drive resumed from the residence of Shri Tarun
Jain and Ms. Neha Sharma, Mobile Phone of M/s Travel
in Style, Mobile Phone of Shri Greeshm Sharma i.e. you
and Laptop of Shri Raju Singh Sachdeva was conducted
in the-presence of two independent witnesses under
Panchnama dated 08/09.07.2019. However; no data
relevant to the investigation was found stored therein.
xxxx xxxx xxxx
xvi. Further, Shri Raju Singh Sachdeva has admitted that he
came in contact with Ms. Neha Sharma through Shri
Greeshm Sharma i.e. you (one of his relatives, who is
husband of his niece Ms. Ginni) and Ms. Neha Sharma
and Shri Greeshm Sharma i.e. you persuaded him to visit
to Bangkok and smuggle Gold concealed in readymade
denim shirts as buttons and buckle rings in sling bags
alongwith him. He further, admitted in his statement
recorded under section 108 of the Customs Act, 1962 that
Shri Avtar used to receive foreign currency from Shri
Greeshm Sharma i.e. you at Bangkok and paid him some
amount for his expenses there. As in his 9th visit, Shri
Greeshm Sharma i.e. you paid USD 90,000/- (USD
89500+500) to Shri Avtar and he got some amount from
Shri Avtar for his expenses. The details of money
received and paid was found scribbled on a note on the
backside of a top-up bill of Bangkok Mobile number, said
to be used by Shri Raju Singh Sachdeva, during his visit
from 13.05.2019 to 16.05.2019.
xvii. During investigation of the case, so far, a reference has
been made to the FRRO, Ministry of External Affairs, RK
Puram, New Delhi vide letter dated 13.06.2019 to provide
the travel details of Shri Raju Singh Sachdeva, Ms. Neha
Sharma, Shri Tarun Jain and Shri Greeshm Sharma i.e.
you for further investigation From the statements dated
17.05.2019 and 9.06.2019 of Shri Raju Singh Sachdeva
recorded under Section 108 of the Customs Act, 1962;
forensic data recovered from his mobile phones,
documents recovered from travel agency M/s Travel in
Style and other corroborative evidences, as aforesaid, it is
evident that Shri Raju Singh Sachdeva is deeply involved
in organised smuggling of Gold into India being a part of
syndicate run by Ms. Neha Sharma and Shri Tarun Jain
actively aided and abetted by Shri Greeshm Sharma i.e.
you. His involvement appears to be deep rooted which is
amply manifested by the unique modus operandi, number
of persons involved, scale of operation, his contacts and
dealings with other members of the syndicate, viz., Shri
Monish Kumar and Shri Vikas Kumar with a well thought
out plan. Evidences collected, so far, clearly indicate that
the smuggling network is being run and operated by
common mastermind Shri Tarun Jain, Ms. Neha Sharma
and Shri Greeshm Sharma i.e. you.
2. In view of the facts, circumstances, findings,
corroborative evidences and your role in the whole
operation, I am satisfied that you i.e. Shri Greeshm
Sharma are an important part of a well organised
smuggling syndicate involved in smuggling of foreign
origin gold and foreign currency. You along with other
associates are in the habit of regularly smuggling goods
into India from abroad without declaring the same before
the Customs Authorities and paying applicable duty
which amounts to "smuggling" in terms of Section 2 of
the Customs Act, 1962. The underlying common threat is
your propensity to smuggle goods for making illicit profit
and putting the national economy into danger which
needs to be curbed and yon need to be prevented from
indulging in such activities further.
xxxx xxxx xxxx xxxx xxxx
5. In view of the facts and circumstances explained above, I
have no hesitation in concluding that you i.e. Shri
Greeshm Shanna played a vital role in smuggling of
foreign origin gold and foreign currency along with other
accomplices. You i.e. Shri Greeshm Sharma have also
designed plan in an organised and repeated manner in the
act of smuggling. Investigations done by
Commissionerate of Customs, IGI Airport, New Delhi
clearly establish your continued propensity and
inclination to indulge in acts of smuggling in a planned
manner to the detriment of the economic security of the
country and that unless prevented you i.e. Shri Greeshm
Shanna will continue to do so. Further considering the
nature and gravity of offence in an organized manner in
which you i.e. Shri Greeshm Sharma have engaged
yourself in such prejudicial activities and your role
therein, all of which reflect your high potentiality and
propensity to indulge in such prejudicial activities in
future, I am satisfied that there is a need to prevent you
i.e. Shri Greeshm Sharma from smuggling goods. Hence,
you i.e. Shri Greeshm Sharma ought to be detained under
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities (COFEPOSA) Act,1974 with a
view to preventing you from smuggling goods, abetting
the smuggling of goods and engaging in transporting or
concealing or keeping smuggled goods in terms of
Section 3(1) of the COFEPOSA Act, 1974.
6. I am aware that prosecution under Section 135may be
launched against you i.e. Shri Greeshm Sharma and
adjudication proceedings are also likely to be initiated
soon, which are however, punitive in nature and
independent of the preventive detention provided under
the COFEPOSA Act, 1974. However, considering your
i.e. Shri Greeshm Sharma's high propensity to indulge in
the prejudicial activities, I am satisfied that in the
meantime you should be immobilised by detention under
the COFEPOSA Act, 1974 with a view to prevent you
from smuggling goods, abetting the smuggling of goods
and engaging in transporting or concealing or keeping
smuggled goods in future.
7. As regards retraction of you i.e. Shri Greeshm Sharma
vide your bail application dated 15.07.2019,1 have noted
that your house was searched on 30.06.2019 where you
i.e. Shri Greeshm Sharma were found and as per the
Summons issued to you, you visited the IGI airport and
your statements were recorded under section 108 of the
Customs Act, 1962 on 30.06.2019 and 1.07.2019 in total
12 pages of your own handwriting. So your allegation of
signing of pre narrated statements and blank papers is
nothing but an afterthought. Further, all retraction
towards your voluntary statements recorded on
30.06.2019 and 1.07.2019 under section 108 of Customs
Act, 1962 are after a lapse of nearly 15 days which itself
justifies that your retraction is just an afterthought to
mislead the investigation. I have also taken note of
documentary evidences, corroborative statement and
available records relating to your involvement in the
syndicate of smuggling of gold and foreign currency and
hence, I am satisfied that, your retraction of statements is
devoid of merits."
9. In view of the foregoing, it would be submitted by Mr. Ajay
Digpaul, learned CGSC that the Detaining Authority has passed a
well-reasoned and legally sustainable Detention Order, after
considering all the relevant facts of the case and after minutely
examining the material available against the Detenu. Mr. Ajay
Digpaul, learned CGSC places reliance on the recent decision of the
Hon'ble Supreme Court in Union of India (UOI) and Ors. v. Dimple
Happy Dhakad reported as AIR 2019 SC 3428, which was affirmed
in Union of India (UOI) v. Ankit Ashok Jalan reported as 265
(2019) DLT 53, to urge that 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.
10. Having heard learned counsel appearing on behalf of the
parties and perused the material on record and in particular the
impugned Detention Order, we observe that the subjective satisfaction
requisite on the part of the Detaining Authority, the formation of
which is a condition precedent to the passing of the Detention Order,
gets vitiated only if material or vital documents, which could have a
bearing on the issue and would influence the mind of the Detaining
Authority, one way or the other, are not placed by the Sponsoring
Authority before the Detaining Authority.
11. In the present case, it is however, observed that the 'Letter of
Extrication' dated 03.07.2019, which was strongly relied upon, on
behalf of the petitioner, was received by the Sponsoring Authority
only on the 20.07.2019, viz a day after the impugned Detention Order
had been passed and thus could not have been placed before the
Detaining Authority for consideration. Even otherwise, the connected
assertion made on behalf of the Detenue that a perusal of the said
'Letter of Extrication' could establish that the incriminatory
statements made under Section 108 of the said Act by him were not in
his handwriting, are not tenable and has already been considered and
rejected by the Advisory Board, comprising three Judges of this
Hon'ble Court. Consequently, the said 'Letter of Extrication' cannot
be said to be a vital or relevant document, the non-consideration of
which by the Detaining Authority, would result in vitiating the
Detention Order. Similar is the position qua the 'Summons' and the
'Non-Recovery Panchnama', referred to vigorously on behalf of the
Detenue. Insofar as, the 'Summons' dated 30.06.2019 is concerned,
the same was duly received by the Detenue, who put his signatures on
the face of it, as token of receipt of the same and voluntarily went to
the IGI Airport, in compliance thereto. Therefore, the assertion of the
Detenue that, the said 'Summons' were not relied upon by the
Sponsoring Authority or placed before the Detaining Authority does
not vitiate the 'subjective satisfaction' recorded by the Detaining
Authority, since the same was not relevant for the formation of the
'subjective satisfaction' of the Detaining Authority. Further, the
Detenue's assertion that he was not even supplied with a copy of the
said 'Summons' is factually incorrect and does not further his case.
Coming to the submission qua the 'Non-Recovery Panchnama', the
Sponsoring Authority did not rely upon that document, since the
search proceedings did not result in the recovery of any incriminating
documents, other than some personal documents of the Detenue, such
as PAN Card, Aadhaar Card and Driving License. Therefore, the
Panchnama, in our view, cannot be said to be material, the non-
placement of which would render the Detention Order illegal. In this
view of the matter, the decision in Asha Devi (supra) pressed into
service on behalf of the petitioner, does not come to the aid of the
Detenue.
12. The Hon'ble Supreme Court of India was pleased to delineate
precisely qua the subjective satisfaction of the Detaining Authority in
Dimple Happy Dhakad (supra), which was affirmed by the Hon'ble
3-Judges in that Bench in Union of India (UOI) v. Ankit Ashok Jalan
(supra), as follows:-
" 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 Ors. 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
services essential to the community, prevention of
smuggling and black marketing 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.
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."
13. On a conspectus of the decisions of the Hon'ble Supreme Court
in Dimple Happy Dhakad (supra) and Ankit Ashok Jalan (supra), it
is axiomatic that, though procedural safeguards are required to be
rigorously adhered to and that although the courts must lean in favour
of personal liberty of the citizens and remain conscious and zealous in
upholding the personal liberties of citizens but in appropriate cases the
liberty of an individual has to be subordinated within reasonable
bounds to the good of the people. It is observed that an order of
detention is clearly and unequivocally a preventive measure devised to
afford protection to the society and particularly where the preventive
detention is aimed to protect the security and safety of the nation, the
Courts must strike a balance between the liberty of an individual and
the needs of the society.
14. In the present case, it is observed that huge volumes of gold had
been smuggled into the country, illegally and unabatedly for the last
five years and that about 8350 grams of gold has been brought into
India during the period from November 2018 to May 2019 by the
Detenue camouflaging the same as accessories of garments and buckle
rings of bags. It is further observed that the Detaining Authority was
justifiably satisfied, founded on the relevant material placed before it
by the Sponsoring Authority, that the Detenue demonstrably has the
propensity to indulge in the same acts of smuggling, if not prevented
by way of the Detention Order from so doing. It is trite to state that
the order of preventive detention is a preventive measure and that
predicated on the admissible voluntary statements of the Detenue,
which clearly bring out the role of the Detenue in the smuggling of
Gold, as well as, other materials placed before the Detaining
Authority, the subjective satisfaction of the Detaining Authority,
recorded in the Detention Order qua the continued propensity and
inclination of the Detenue to continue to indulge into acts of
smuggling in a planned manner, to the detriment of the economic
security of the country, cannot be faulted and does not warrant
interference of this Court in exercising its extraordinary jurisdiction.
15. In view of the foregoing discussion, we are of the considered
view that the present writ petition is devoid of merit and the same is
accordingly dismissed.
16. A copy of this Judgment be provided to the learned counsel
appearing on behalf of the parties electronically and be also uploaded
on the website of this Court forthwith.
SIDDHARTH MRIDUL
JUDGE
TALWANT SINGH
JUDGE
JULY 23, 2020
dn/di
