10. It is further submitted that although the
of the detenue indulging in illegal activity if released. It is
likelihood of release. Therefore, the subjective satisfaction
recorded is vitiated. The detaining authority not having
11. It is contended that there is a violation of Article
drawn that the electronic devices seized from Smt.
and the detenue. However, it is contended that the relied
the electronic evidence supporting the said conclusion.
12. The learned counsel appearing for the petitioner
• Sophia Gulam Mohd. Bham v. State of
Maharashtra & Ors., reported in (1999) 6 SCC
593;
• Khaja Bilal Ahmed v. State of Telangana & Ors.,
reported in (2020) 13 SCC 632; and
• Shalini Soni & Ors. v. Union of India & Ors.,
reported in (1980) 4 SCC 544.
13. Relying on these decisions, the learned counsel
appearing for the petitioner submits that the detention order
is vitiated and is liable to be set aside.
14. The learned ASGI appearing for the respondents
contended that the detention order was legal and justified.
The respondent submitted the co-accused, Smt.
Harshavardhini Ranya and Shri. Tarun Konduru Raju, had
their bail applications rejected by the Trial Court, and their
appeals before the Sessions Court and later before this
Court were also rejected or pending at the time the
impugned detention order was issued. The detenue's own
bail application was rejected on 15.04.2025. The detaining
authority reasonably inferred that the detenue was likely to
challenge the bail rejection before higher Courts and could
obtain bail.
15. It is further contended that the detaining
authority was aware of this likelihood of the detenue
approaching appellate Courts for bail. Hence, the authority
recorded the grounds of detention that though the detenue
was in judicial custody and his bail application had been
rejected; there existed a real possibility of his release and
upon such release, a likelihood of him indulging in prejudicial
activities relating to smuggling. Therefore, preventive
detention under COFEPOSA Act was issued. It is further
stated that the detenue did, in fact, challenge the bail
rejection order before the Sessions Court, validating the
detaining authority's assessment.
16. It is further submitted that a detention order
against a person in custody is valid if (i) the authority is
aware of the custody, (ii) there is reliable material indicating
possibility of release on bail, and (iii) upon release, the
detenue is likely to engage in prejudicial activities. All three
conditions have been satisfied in the instant case. A
detention order cannot be struck down merely because
instead of contesting bail, the authority chose preventive
detention. An order is sustainable if it records awareness of
custody and reasons to believe there is a possibility of
release on bail. The detaining authority must show
awareness of custody and assess whether antecedent
activities indicate a high propensity to repeat offences.
17. It is further submitted that the detaining
authority's satisfaction cannot be said to be an ipse dixit.
The authority based its assessment on materials showing
that the detenue had previously been engaged in smuggling
operations and formed the view that he would continue such
activities if released. Therefore, preventive detention was
necessary in public interest.
18. It is further submitted that the detaining
authority carefully reviewed all the material placed before it
by the sponsoring authority and reached the informed
subjective satisfaction that the detenue is essential to
prevent the detenue from abetting smuggling in future
under Section 3(1) of COFEPOSA Act.
19. It is further submitted that the detenue's claim
that the detention is based solely on the 03.03.2025 and
04.03.2025 incident is false. The grounds clearly show that
the detenue played an active role in a well-organised
smuggling syndicate and is a repeat offender. The detenue
has disposed of smuggled gold on multiple earlier occasions.
He was also involved in another DRI Kolkata case involving
42,170.7 grams of gold. Therefore, the petitioner's claims
are incorrect.
20. It is further submitted that the evidence gathered
during investigation, including voluntary statements and
digital material corroborates the detenue's repeated
involvement. Therefore, the detention order is not based
solely on a single incident. It is further submitted that the
entire text of the voluntary statement of the detenue and
the co-accused along with all supporting materials have
been made available to the detenue in the grounds of
detention and that the detention order is based only on the
materials which have been duly provided to the detenue.
21. It is further contended that the detenue's name
did not appear in the statements of co-accused on
03.03.2025 only because the gold was seized before it
reached him for disposal, not because he was uninvolved.
Further, it is contended that the detenue has acknowledged
the receipt of the detention order dated 22.04.2025 along
with all the relied upon materials has not filed any
representation though he was perfectly aware of his chance
to do so.
22. The learned ASGI appearing for the respondents
places reliance on the following decisions:
• Ashadevi wife of Gopal Ghermal Mehta (Detenu) v
K. Shivraj, Addl. Chief Secretary to the Govt. of
Gujarat and Another, reported in (1979) 1 SCC 222;
and
• Smt. Icchu Devi Choraria v. Union of India and
Others, reported in (1980) 4 SCC 531.
23. We have considered the contentions advanced.
We notice that the detention order was passed on
22.04.2025. The detention order, along with the grounds of
detention was served on the detenue on 23.04.2025. He
was specifically informed by the detaining authority of his
opportunity to file his representation as follows:
"12. Shri Sahil Sakariya Jain i.e., you have the
right to represent against your detention to the Detaining
Authority, to the Central Government as well as the
Advisory Board. If you wish to avail this right, you should
send your representation thought the Jail Authorities
where you are detained, in the manner indicated below:-
(a) Representation meant for the Detaining
Authority should be addressed to the Joint
Secretary (COFEPOSA), Government of India,
Ministry of Finance, Department of Revenue,
Central Economic Intelligence Bureau, 6th Floor,
B-wing Janpath Bhawan, Janpath, New Delhi-
110001.
(b) Representation meant for the Central
Government should be addressed to the Director
General, Central Economic Intelligence Bureau,
Govt. of India, Ministry of Finance, Department
of Revenue 6th Floor, B-wing Janpath Bhawan,
Janpath, New Delhi-110001.
(c) Representation meant for the Advisory Board
should be addressed to the Chairman,
COFEPOSA Advisory Board, High Court of
Karnataka, Bengaluru."
However, no representation was filed by the detenue before
the detaining authority, the Advisory Board or the
Government. The detenue has signed the copy of the
detention order acknowledging copies of the same as well as
grounds for detention and supporting documents.
24. In Rekha's case (supra), the Apex Court has held
that there is a real possibility of release of a person on bail
who is already in custody provided he has moved a bail
application which is pending and if no bail application is
pending, then there is no likelihood of the person in custody
being released on bail, making the detention order illegal.
The Court observed that there can be an exception to this
Rule where a co-accused whose case stands on the same
footing had been granted bail, in which cases the detaining
authority can reasonably conclude that there is a likelihood
of the detenue being released on bail even though no bail
application is pending, since most Courts normally grant bail
on this ground. However, the Court emphasized that details
of such alleged similar cases must be given, otherwise the
bald statement of the authority cannot be believed, and
mere ipse dixit regarding the alleged imminent possibility of
the accused coming out on bail without reliable material
cannot sustain the detention order.
In Ashadevi Wife of Gopal Ghermal Mehta
(Detenue)'s case (supra), the Apex Court held at
paragraph No.6 as follows:-
"6. It is well-settled 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 will get vitiated if
material or vital facts which would have a bearing on the
issue and would influence the mind of the detaining
authority one way or the other are ignored or not
considered by the detaining authority before issuing the
detention order. x x x x x . The principle that could be
clearly deduced from the above observations is that if
material or vital facts which would influence the mind of
the detaining authority one way or the other on the
question whether or not to make the detention order, are
not placed before or are not considered by the detaining
authority it would vitiate its subjective satisfaction
rendering the detention order illegal. After all the
detaining authority must exercise due care and caution
and act fairly and justly in exercising the power of
detention and if taking into account matters extraneous
to the scope and purpose of the statute vitiates the
subjective satisfaction and renders the detention order
invalid then failure to take into consideration the most
material or vital facts likely to influence the mind of the
authority one way or the other would equally vitiate the
subjective satisfaction and invalidate the detention
order."
In Smt. Icchu Devi Choraria's case (supra), the
Apex Court held at paragraphs No.5 and 6 as follows:-
"5. x x x x x The burden of showing that the
detention is in accordance with the procedure established
by law has always been placed by this Court on the
detaining authority because Article 21 of the Constitution
provides in clear and explicit terms that no one shall be
deprived of his life or personal liberty except in
accordance with procedure established by law. This
constitutional right of life and personal liberty is placed on
such a high pedestal by this Court that it has always
insisted that whenever there is any deprivation of life or
personal liberty, the authority responsible for such
deprivation must satisfy the court that it has acted in
accordance with the law. x x x x x.
6. x x x x x If there are any documents,
statements or other materials relied upon in the grounds
of detention, they must also be communicated to the
detenu, because being incorporated in the grounds of
detention, they form part of the grounds and the grounds
furnished to the detenu cannot be said to be complete
without them. It would not therefore be sufficient to
communicate to the detenu a bare recital of the grounds
of detention, but copies of the documents, statements
and other materials relied upon in the grounds of
detention must also be furnished to the detenu within the
prescribed time subject of course to clause (6) of Article
22 in order to constitute compliance with clause (5) of
Article 22 and Section 3 sub-section (3) of the COFEPOSA
Act. x x x x x
25. In the instant writ petition, the ground of non-
supply of the pen drive which is a relied upon document is
not specifically raised. However, the detenue has
acknowledged the receipt of the pen drive and the learned
ASGI submits that in all these cases the pen drive had been
taken to the prison and was played on a laptop available
with the Officer and was shown in full to the detenue.
Further, the entire relied upon material except two pages in
Kannada, at pages No.1010 and 1011, which apparently are
totally unconnected to the facts of this case, have been
served to the detenue in English, a language which he
admittedly knows and understands.
26. Further, the detention order specifically discusses
the role of each of the detenues in the smuggling of gold
into India and also specifically notices that the detenue was
in judicial custody at the relevant time, his bail application
had been rejected and his passport was in Court custody.
But the order proceeds to specifically record that in the
nature of the organised illegal activities of the detenue, the
said steps are not sufficient to prevent the detenue from
indulging in organised smuggling if the detenue is not kept
under detention.
27. The fact that the detenue was already in custody
and that his bail applications had been rejected had not
been specifically considered cannot be accepted. In view of
these specific statements in the Detention Order, we find
that the possibility of the detenue being released on grant of
bail and his propensity to indulge in smuggling activities has
also been specially noticed by the Detaining Authority.
28. The contention that the detenue was unconnected
with the seizure which occurred on 03.03.2025 also cannot
be accepted in view of the specific finding about his
involvement in the continuous activities of smuggling. The
ASGI would submit that all relevant materials which have
been relied on to pass the order of detention have been
made available to the detenue.
29. Having given our anxious consideration to all the
grounds raised by the petitioner, the pleadings and the
materials placed on record by the learned ASGI and the
decisions relied on by both sides, we are of the opinion that
the safeguards as provided in Article 22(5) of the
Constitution of India have been duly followed in the instant
case. In spite of having been given the detention order with
all the relied on materials, the detenue in the instant case
had not chosen to make a representation before any of the
authorities.
30. In view of the fact that the procedural safeguards
have been followed and the order of detention and
subjective satisfaction has been arrived at by the detaining
authority after considering all relevant aspects in the matter.
We are of the opinion that the order of detention does not
call for interference. The writ petition accordingly fails and
the same is dismissed.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
cp*
