Citation : 2025 Latest Caselaw 11641 Kant
Judgement Date : 19 December, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION (HABEAS CORPUS) NO.47 OF 2025
BETWEEN:
SMT. H.P. ROHINI
W/O RAMACHANDRA RAO
AGED 58 YEARS
No.3, 7TH CROSS
VICTORIA LAYOUT
BENGALURU-560 047.
...PETITIONER
(BY SRI. KIRAN S. JAVALI, SR. ADVOCATE FOR
SRI. CHANDRASHEKARA K., ADVOCATE)
AND:
1. JOINT SECRETARY
COFEPOSA
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
CENTRAL ECONOMIC INTELLIGENCE BUREAU
6TH FLOOR, "B" WING
2
JANPATH BHAVAN, JANPATH
NEW DELHI-110 001.
REP. BY SRI. ANUPAM PRAKASH
2. GOVERNMENT OF INDIA
BY CENTRAL ECONOMIC INTELLIGENCE
BUREAU
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
6TH FLOOR, "B" WING
JANPATH BHAVAN, JANPATH
NEW DELHI-110 001.
REP. BY DIRECTOR GENERAL
3. SENIOR SUPERINTENDENT
CENTRAL PRISON
PARAPANNA AGRAHARA
BENGALURU-560 100.
...RESPONDENTS
(BY SRI. KULOOR ARVIND KAMATH, ASGI WITH
SRI. SHANTHI BHUSHAN H., DSGI FOR R1 & R2
SRI. THEJESH P, HCGP FOR R3)
THIS WP(HC) IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA, PRAYING TO (a) ISSUE A WRIT
IN THE NATURE OF HABEAS CORPUS OR ANY OTHER
APPROPRIATE WRIT, ORDER OR DIRECTION DECLARING
THE DETENTION OF SMT. HARSHAVARDINI RANYA D/O.
HEGDESH KABBINAHALLI SIDDEGOWDA, BY ORDER
F.No.PD.12001/01/2025-COFEPOSA DATED 22.04.2025
(ANNEXURE-"A") AS ILLEGAL AND VOID ABINITIO AND
ETC.
3
THIS WP(HC) HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.12.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU
SIVARAMAN J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This Writ Petition (Habeas Corpus) has been filed by
Smt. H.P. Rohini, the mother of the detenue, Smt.
Harshavardini Ranya, seeking issuance of a writ of Habeas
Corpus declaring the Order of Detention bearing F.No. PD-
12001/01/2025-COFEPOSA dated 22.04.2025 under
Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 ("COFEPOSA
Act" for short), as illegal.
2. We have heard Shri. Kiran S. Javali, learned
senior counsel as instructed by Shri. Chandrashekara K,
learned Advocate appearing for the petitioner, Shri. Kuloor
Arvind Kamath, learned Additional Solicitor General of
India, along with Shri Shanthi Bhushan H, learned Deputy
Solicitor General of India appearing for Respondents No.1
and 2 and Shri Thejesh P, learned High Court Government
Pleader, appearing for Respondent No.3.
3. The facts of the case are as follows:-
Smt. Harshavardini Ranya, the detenue herein was
intercepted on 03.03.2025 at the Green Channel of the
Kempegowda International Airport, Bengaluru while
attempting to leave the Airport after arrival from Dubai
without making any declaration. A personal search
revealed that she was attempting to smuggle 17 foreign-
marked gold bars weighing approximately 14,213.050
grams of foreign origin gold brought from Dubai into India.
A voluntary statement was recorded on 04.03.2025.
Thereafter, a search was conducted at her residence and
cash of Rs.2,67,00,000/- and jewellary worth
Rs.2,06,00,000/- along with two customs declarations
were seized. Further, voluntary statements of the detenue,
Shri. Tarun Konduru Raju, who was implicated by the
detenue and Shri. Sahil Sarkariya Jain and several others
were recorded. Based on these and other materials
procured during the course of investigation, a detention
order under Section 3(3) of the COFESPOSA Act was
passed on 22.04.2025.
4. The detenue was in Judicial Custody. The order
of detention was served on her on 23.04.2025. On
27.04.2025, the Grounds of Detention and the list of relied
upon documents were served. The detenue filed
representations including a representation dated
05.05.2025 to the Joint Secretary (COFEPOSA) which was
disposed of on 13.05.2025. Representation dated
08.05.2025 was made to the Government of India which
was also disposed of on 14.05.2025 and representation
dated 08.05.2025 addressed to the Advisory Board was
forwarded along with comments of the Detaining Authority.
5. The learned senior counsel appearing for the
petitioner contended that the order of detention is illegal
and suffers from non-application of mind by respondent
No.1. The detention order alone was served on
23.04.2025. The relied upon documents were served only
on 27.04.2025, that too, without informing the detenue of
her right to make a representation against the detention.
This constitutes a violation of Article 22(5) of the
Constitution of India and is contrary to Article 21 of the
Constitution of India, as the procedure established by law
has not been followed.
6. It is further contended that the petitioner has
challenged the impugned detention order based on the
following grounds and relied upon the following decisions
as well:-
I. The order of detention is vitiated due to failure
to furnish the relied upon documents in full. The making
available of the Pen Drive which is at Sl.No.51 of the
documents relied on appended to the detention order to
the detenue to merely verify the contents and size of the
pen drive and the service to only the mother of the
detenue amounts to non-service and is beyond the
statutory mandate of 15 days thereby, vitiating the order
of detention. In support of these contentions, the following
decisions are relied on:-
• Smt. Icchudevi Choraria v. UOI and others reported in (1980) 4 SCC 531;
• Shalini Soni v. UOI and others reported in (1980) 4 SCC 544;
• Lallubhai Jogibhai Patel v. Union of India and others reported in (1981) 2 SCC 427;
• Kamala K Khushalani v. State of Maharashtra. Kamla K reported in (1981) 2 SCC 748;
• Kirit Kumar Chaman Lal Kundaliya v. Union of India and others reported in (1981) 2 SCC 436;
• Mehrunissa v. State of Maharashtra reported in (1982) 2 SCC 709;
• Thahira Haris and others v. Government of Karnataka and others reported in (2009) 11 SCC 438;
• Rushikesh Tanaji Bhoite v. State of Maharashtra and others reported in (2012) 2 SCC 72;
• Zakir Khan V/s. Union of India and others reported in 2022 SCC Online Del 1284;
• Smitha Gireesh v. Union of India and Others, reported in 2016 SCC OnLine Del 3697;
• Hajira N.K. v. Union of India and Others, by Order dated 26.11.2019 passed in WP (Crl.) No.324 of 2019;
• S. Reshmi v. Union of India and Others by Order dated 28.01.2016 passed in WP (Crl.) No.386 of 2015; and
• Shaikh Mohammed Rizwan v. UOI and Another, reported in 2017 SCC OnLine Del 7887.
II. The order of detention is vitiated as pages no.
1010 and 1011 being in Kannada language has not been
read and understood, affecting the legality of the order of
detention. The following decisions are relied on:-
• Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Jqbal alias Gulam, reported in (1982) 3 SCC 440;
• Narayan Laxmansa Shiralkar v. Government of Karnataka and Others, by Order dated 09.08.2005 passed in Writ Petition (HC) No.58 of 2005;
• Smt. Doulat Unnisa v. Commissioner of Police and Others, by Order dated 09.08.2007 passed in Writ Petition (HC) No.129 of 2006;
• Smt. P. Vijayalakshmi v. The Commissioner of Police, reported in 2015 SCC OnLine Kar 9020;
• Sri. Mohammad Shafiulla v. The D.G. and I.G.P. of Police and Others, by Order dated 07.12.2023 passed in WPHC No.75 of 2023; and
• Sri. Anil Kumar V. v. Commissioner of Police and Others, by Order dated 28.02.2025 passed in WPHC No.4/2025.
III. The order of detention is vitiated as pages
No.1077 and 1099 of the relied upon documents,
were furnished in a truncated form. The following
decisions are relied on:-
• Bhupinder Singh v. Union of India and Others, reported in (1987) 2 SCC 234;
• Smt. Dharmista Bhagat v. State of Karnataka and Another, reported in 1989 Supp (2) SCC 155;
• Smt. Parvathamma v. Commissioner of Police and Others, by Order dated 26.08.2022 passed in Writ Petition (HC) No.33/2022;
• Smt. R. Ramya v. Commissioner of Police and Others, by Order dated 26.08.2022 passed in Writ Petition (HC) No.51/2022; and
• Smt. Shruthi T.K. v. Deputy Commissioner and Others, by Order dated 18.07.2023 passed in W.P.H.C. No.39 of 2023.
IV. The order of detention is vitiated as there was
no subjective satisfaction recorded, because of the
following reasons:
(i) The detaining authority did not consider the prospect of the detenue to be released on bail for issuing an order of detention whilst in judicial custody.
(ii) No material existed to derive subjective satisfaction that the detenue had traveled 31 times from January 2024 and pages 438, 439, 779 and 780 did not reveal the same, in the absence of the Passport, to support the same.
(iii) The entire subjective satisfaction has been derived only on the purported statement of the detenue.
(iv) No subjective satisfaction has been recorded to place reliance on the statement of the detenue by rejecting the retraction.
In support of these contentions the following
decisions are relied on:-
• N.Meera Rani v.Govt of Tamil Nadu and another reported in (1989) 4 SCC 418 and
• Kamarunnissa v. Union of India reported in (1991) 1 SCC 128.
V. The order of detention is vitiated as no
subjective satisfaction has been recorded to the effect that
the passport of the detenue was in court custody and there
was no prospect for the detenue to indulge in smuggling in
future. The following decisions are relied on:-
• Dharmendra Suganchand Chelawat and Another v. Union of India and Others, reported in (1990) 1 SCC 746;
• Rekha v. State of Tamil Nadu, reported in (2011) 5 SCC 244;
• Huidrom Konungjao Singh v. State of Manipur and Others, reported in (2012) 7 SCC 181;
• Rajesh Gulati v. Govt. of NCT of Delhi and Another, reported in (2002) 7 SCC 129;
• Gimik Piotr v. State of Tamil Nadu and Others, reported in (2010) 1 SCC 609;
• Moulana Shamshunnisa and Others v. Additional Chief Secretary and Others, reported in (2010) 15 SCC 72;
• Ameena Begum v. State of Telangana and Others, reported in (2023) 9 SCC 587;
• Kashmira v. State of Kerala and Others, reported in 2022 SCC OnLine Ker 7001;
• Smt. Nafisa Syed Ali v. The State of Maharashtra and Others, reported in 2013 ALL MR (Cri) 78;
• Husainbi Abdulla Ghalamsalam Indian Inhabitant v. State of Maharashtra and Others, reported in 2013 SCC OnLine Bom 160; and
• Shanawaz v. Government of Karnataka and Others, by Order dated 11.02.2010 passed in WP No.133/2009 (HC).
VI. The order of detention is vitiated for non-
application of mind and is not in conformity with the
COFEPOSA Act. The following decisions are relied on:-
• Ram Manohar Lohia v. State of Bihar and others reported in 1965 SCC OnLine SC 9;
• Kishori Mohan Bera v. State of West Bengal reported in (1972) 3 SCC 845;
• Akshoy Konai v. State of West Bengal reported in (1973) 1 SCC 297;
• R. Prakash v. State of Karnataka reported in 1979 SCC OnLine Kar 151; and
• Smt. Shashikala K Rana v. Union of India and others reported in 1986 SCC OnLine Bom 282;
• Ayya alias Ayub v. State of U.P. and Another, reported in AIR 1989 SC 364;
• Tulshi Rabidas v. The State of West Bengal, reported in AIR 1975 SC 638; and
• Mohd. Dhana Ali Khan v. State of West Bengal, reported in AIR 1976 SC 734.
VII. In the matter of detention prejudice cannot be
urged and the requirement is strict compliance of the law.
• Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi and Others, reported in (1987) 2 SCC 6;
• State of Punjab v. Sukhpal Singh, reported in (1990) 1 SCC 35; and
• Mangalbhai Motiram Patel v. State of Maharashtra and Others, reported in (1980) 4 SCC 470.
VIII. The order of detention is vitiated inasmuch as
neither in the grounds of detention nor in the
communication from the Advisory Board had the detenue
been appraised of her right of being assisted by a friend
before the Advisory Board proceedings.
IX. The order of detention is vitiated inasmuch as
the Advisory Board has not considered the representation
dated 09.05.2025 of the detenue, seeking for permission
to be represented by a Legal Practitioner before the
Advisory Board proceedings. The following decisions are
relied on:-
• A.K. Roy v. Union of India and Others, reported in (1982) 1 SCC 271; and
• State of Andhra Pradesh and Another v.
Balajangam Subbarajamma, reported in (1989) 1
SCC 193.
7. In response to the grounds raised by the
petitioner, the learned ASGI raises the following
contentions:-
The material gathered during investigation
demonstrates the existence of a well-orchestrated,
commercially motivated, transnational smuggling syndicate
operated by the detenues over a sustained period. The
detaining authority carefully examined the voluminous
material, including statements recorded under Section 108
of the Customs Act, 1962 ("Customs Act" for short)
documents seized from the residences and business
premises, forensic extraction of mobile phones, and
statements of various facilitators who enabled the
syndicate. On this basis, the authority recorded its
subjective satisfaction that the detenues possess both the
propensity and the potentiality to continue engaging in
prejudicial smuggling activities unless preventively
detained.
8. Section 1(2) of the Customs Act states that the
Act extends to the whole of India and extends even to
offences committed outside its territory. In the present
case, a significant part of the planning, procurement and
documentation was carried out in the foreign jurisdiction of
Dubai. Section 2(39) of the Customs Act defines smuggling
in relation to goods as any act or omission which renders
such goods liable to confiscation under Sections 111 or
113 of the Customs Act. The definition is intentionally
wide, covering not only physical carriers but also
organizers, financiers, handlers and facilitators who
orchestrate the process from behind the scenes, ensuring
to capture every component of the illicit chain. Section
111(d) of the Customs Act provides that any goods
imported or attempted to be imported contrary to
prohibition under any law are liable for confiscation. Under
Rule 3 of the Baggage Rules, 2016, gold other than
ornaments is prohibited as per Item 5 of Annexure I. Gold
bars and biscuits are therefore prohibited goods. The
deliberate and repeated import of gold bars and biscuits by
the detenues falls squarely within this prohibition. Section
135 of the Customs Act prescribes punishment for evasion
of duty and related offences. It forms part of the statutory
framework that marks clandestine import activities as
serious offences, thereby reinforcing the preventive
purpose of COFEPOSA Act. Section 3(1) of COFEPOSA Act
extends to preventive detention not only of persons who
directly smuggle goods, but also of those who abet,
transport, conceal, keep, deal with, or harbor persons
engaged in smuggling.
I. On the ground of non-supply of the pen drive in
Sl.No.51 of the relied upon documents, the learned ASGI
submitted that contents of the pen drive were shown to the
detenue on a laptop on 27.04.2025 and the detenue has
given an acknowledgement to that effect. Owing to the
rules of the prison, the pen drive could not have been
handed over to the detenue as they do not allow handing
over electronic devices to the inmates of the prison.
Therefore, the detenue directed the sponsoring authority to
furnish the pen drive to her Advocate Shri. Shashwath S.
Prakash on 28.04.2025. However, multiple attempts were
made to contact the authorised person but to no avail.
Further, the sponsoring authority furnished the pen drive to
the detenue's mother, petitioner in this case. It is
submitted that Article 22(5) of the Constitution of India
requires grounds of detention to be communicated and the
earliest opportunity for representation to be afforded.
Paragraph No.25 of the Statement of Objections reads
as follows:-
"25. Re: Para 15, 17 and 19:
With reference to these Paras, save and except what are matters of facts and record, each and every contention is denied. In this regard, it is submitted that at the time of serving the ground of detention together with the relied upon documents to the detenu on 27.04.2025, the detenu was shown all the contents of the pen drive on a Laptop and upon her satisfaction, the detenu gave her written acknowledgement to this effect. The entire proceedings
were witnessed by a lady officer of the prison and the acknowledgement given by the detenu of having seen and verifying the contents of the pen drive has been duly attested by the lady officer.
It is further submitted that the rules of the prison do not allow handing over of any electronic devices to the inmates of the prison. After seeing and watching the contents of the pen drive to her satisfaction, the detenu made a request to the Sponsoring Authority on the same day i.e. on 27.04.2025 to contact Shri Shashwath S. Prakash, the Advocate of the detenu to deliver the said pen drive. Accordingly, the Sponsoring Authority made efforts to hand over the said pen drive to Shri Shashwath S. Prakash, the Advocate and on 28.04.2025, i.e. the immediate next day, the Sponsoring Authority informed about the serving of grounds of detention and also the RUDs to the petitioner through WhatsApp.
Further, apart from the above, the Sponsoring Authority also informed the petitioner on 28.04.2025 itself that her daughter i.e. the detenu had authorized her (the detenu's) advocate to collect the same from the Sponsoring Authority's office, Bangalore. In response to the said message, the petitioner, the detenu's mother shared the advocate's contact number and also informed that detenu's advocate would contact the Sponsoring Authority. However, the advocate of the detenu did not contact the Sponsoring Authority.
Further, the sponsoring authority also made efforts to call the detenu's advocate on 01.05.2025. However, detenu's advocate did not attend the call in the first attempt. In
the second attempt, he attended the call and informed the sponsoring authority that he would come and collect the said pen drive, within a couple of days. However, he did not turn up before the Sponsoring authority. Therefore, on 08.05.2025 and 09.05.2025, the sponsoring authority made further attempts to contact the detenu's advocate, but he did not respond to the calls made.
On 09.05.2025, the Sponsoring Authority sent a WhatsApp message to the detenu's advocate requesting him to collect the said pen drive or authorize some other person to collect the pen drive from the sponsoring authority. On 10.05.2025, the detenu's advocate replied through WhatsApp that the pen drive is for the detenu and the same be given to her. Hence, the sponsoring authority wrote a letter dated 10.05.2025 to the detenu requesting her to authorize somebody else to collect the said pen drive failing which the pen drive would be served on detenu's mother i.e. the petitioner.
Accordingly, the sponsoring authority waited till 15.05.2025, but no reply was received from the detenu and hence, the sponsoring authority visited the petitioner's house on 16.05.2025 to serve the pen drive on her. However, the petitioner was not available in the house. Again on 17.05.2025, the sponsoring authority visited the petitioner's house and shown her the contents of the pen drive and handed over to her.
In view of the above, it is clear that in spite of the fact that the detenu had herself seen the contents of the said pen drive to her satisfaction, the sponsoring authority made sincere efforts as per the instructions of the detenu
to hand over the pen drive to the persons designated by her. A copy of the acknowledgement in this regard given by the detenu along with the efforts made to serve the Pen Drive are collectively placed at Annexure R-1. Hence, all the requirements to serve all the relied upon documents along with the pen drive have been duly complied with and no prejudice has been caused to the detenu in this regard." x x x x x
II. On the ground relating to the non supply of
Kannada translations, it is contended that the Kannada
pages No.1010 and 1011 of relied upon documents related
to an unrelated bail petition, was used only as backing
sheets and were not relied upon. In Jaseela Shaji v.
Union of India reported in (2024) 9 SCC 53, the Apex
Court held that the documents must be supplied only if
relied upon and casual references do not mandate supply.
Since the said Kannada pages were not relied upon while
passing the detention order, no prejudice is caused to the
petitioner in making an effective representation against the
order.
III. In response to the truncated documents in pages
No.1077 and 1099, it is submitted that the said documents
are annexures to the bail application submitted by the
detenue to this Court. While formulating the Grounds of
Detention and arriving at the subjective satisfaction, the
detaining authority relied upon the bail application only.
The annexures of the said bail applications have been
served to the detenue only for the sake of completeness.
IV. In response to the grounds raised against the
subjective satisfaction of the detaining authority, it is
submitted that when the detention order was passed, the
detenu was already in judicial custody and her bail
application was pending, which fact was duly considered by
the detaining authority. In Senthamilselvi v. State of
Tamil Nadu reported in (2006) 5 SCC 676, it was held
that the authority's subjective satisfaction regarding the
likelihood of release on bail cannot ordinarily be interfered
with.
The relevant portion of the Statement of Objections is
extracted below:
"With reference to these Paras, save and except what are matters of facts and record, each and every contention is denied. In this regard, it is humbly submitted that the Hon'ble High Court of Karnataka dismissed the bail
application of the detenue on 26.04.2025 while the detention order was issued on 22.04.2025. As such, at the time of issuance of the impugned detention order, the detenue was in judicial custody and her bail application filed in the Hon'ble High Court of Karnataka was pending as elaborated by the detaining authority in the grounds of detention. Hence the contention of the detenue is wrong,
baseless and misleading."
Further, regarding the existence of no material relating to
the travel of the detenue, it is submitted that all material
facts and evidence concerning the 31 trips undertaken by
the detenue between India and Dubai since January 2024
were collected by the Sponsoring Authority during
investigation and duly placed before the Detaining
Authority along with supporting documents. The
documents relied upon at pages no. 438, 439, 779 and
780 clearly reflect the detenue's complete travel history
between India and Dubai during the said period.
It is further submitted that preventive detention under
COFEPOSA Act rests on the subjective satisfaction of the
detaining authority that a person is likely to engage in
prejudicial activities in the future. The Apex Court has
consistently held that this assessment includes the
propensity, potentiality, and likelihood of the detenues
engaging in smuggling or its allied acts. The Court's
jurisdiction is limited to examining whether relevant
material existed and whether the decision was based on
that material and it cannot substitute its own opinion for
the satisfaction of the detaining authority. The petitioner's
attempt to challenge the merits of the detaining authority's
assessment is contrary to settled legal principles. Once the
subjective satisfaction is formed on the basis of relevant
material, the Court cannot be drawn into second-guessing
that satisfaction or substitute its own opinion for that of the
detaining authority.
The learned ASGI submitted that the court cannot go into
correctness or otherwise of facts stated or allegations
levelled in the grounds of detention. Permissible grounds of
the challenge include:-
i) order is not made by competent authority;ii) condition precedent for exercise of power does not exist;
iii) subjective satisfaction arrived at by detained authority is irrational;
iv) order is mala fide; v) there is non-application of mind; vi) grounds are vague, indefinite, irrelevant, extraneous, non-existent or stale; vii) order is belated;viii) person detained is already in jail;
ix) order is punitive in nature; x) order is not approved by government as required by law; and xi) failure to refer the case to the Advisory Board.It is submitted that none of the above grounds are
raised by the detenues and as such, the challenge is not
under any of the permissible grounds. It is further
submitted that the grounds of detention describe, the
following:
i) the nature of roles played by each detenue with reference to the material evidence gathered during investigation;
ii) the nature of roles played by facilitators, with specific referenced to evidence on record;
iii) recording of satisfaction, based on material evidence on record, of the potentiality and propensity of thedetenues to continue the commission of gold smuggling activities;
iv) recording of awareness of the detenues being in judicial custody and their likelihood of being released, and v) intimating the detenues about their rightto make representation against the order of detention.
It is submitted that this shows that the order is
passed by the competent authority, gives detailed reasons
for detention, reflects thorough analysis of evidence and
application of mind, is based on valid grounds and
provides definite attribution of roles of all the detenues.
Further, it is made in time, no extraneous materials were
considered and no mala fides are alleged.
V. In response to the ground of impoundment of
passport of the detenue acting as a deterrent to any future
prejudicial activity, it is submitted that the material on
record demonstrates that the detenues were operating a
structured and well-planned smuggling syndicate. Their
conduct reflects a detailed understanding of regulatory
controls, deliberate and systematic efforts to circumvent
customs and baggage rules, coordinated roles in
procurement, transport, disposal of goods, and clandestine
remittances, and an operational framework intentionally
designed to avoid detection and leave no trace. These
features indicate not an isolated or spontaneous act but the
functioning of a pre-existing, well-organized network. The
evidence shows that their enterprise does not require their
personal movement abroad. The arrangements in Dubai,
the use of carriers, coded communication, the Hawala link,
and the disposal mechanism in India all demonstrate that
the syndicate can function even without any of them
travelling internationally.
Relevant portion from the Statement of Objections
addressing the specific ground reads as follows:
"31. Re: Para 26 & 27: With reference to these
Paras, save and except what are matters of facts and record, each and every contention is denied. In this regard, it is humbly submitted that there are sufficient grounds against the detenu with regard to her potentiality
and propensity of inter-alia concealing and keeping the smuggled goods for which passport is not required. Paras 1(xlvi), 2, 6 and 7 of the Grounds of Detention read together provide the subject satisfaction of the detaining authority. It has been clearly elaborated in the Grounds of Detention that the detenu is the kingpin of a smuggling network and has the resources to orchestrate and execute smuggling activities even without traveling abroad. The detenue's involvement is not limited to physical smuggling but extends to planning, organizing, and coordinating the smuggling operations through associates and intermediaries. The absence of a passport does not impede the detenu's potentiality and propensity to continue these illegal activities. Hence, the contention of the detenu is misconceived, wrong and untenable."
Further, Section 3 of COFEPOSA Act is preventive
rather than punitive, with its focus on neutralizing the
likelihood and continuing potential of a person engaging in
or abetting acts of smuggling. Therefore, the mere
impounding of their passports does not obviate the need for
preventive detention under COFEPOSA Act.
VI. In response to the non-application of mind by
the detaining authority while passing the order of detention
is in contravention to the COFEPOSA Act, it is submitted
that the phrase "smuggling goods, transporting, concealing
and keeping smuggling goods" in the detention order is
referable to Sections 3(1)(i) and 3(1)(iii) of the COFEPOSA
Act and, by reason of the commas used, is to be read
conjunctively. The use of a comma instead of the word "or"
signifies that the detention is based on cumulative
involvement in multiple activities, namely smuggling goods
as well as transporting, concealing and keeping smuggled
goods, rather than on any single act. This drafting reflects
the detaining authority's satisfaction that the detenue is
engaged in all such activities, and therefore the relevant
provisions of the COFEPOSA Act have been lawfully
invoked.
9. The learned for ASGI rebuts the citations relied
upon by the petitioner for the following reasons:-
Sl.
Citation Reason for inapplicability No. 1. Gracy v. State of Distinguished in Jasbir Singh v. Lt. Kerala Governor, Delhi, (1999) 4 SCC 228 (Annexure 1) 2. Mortuza Hussain when the detenue is in custody Choudhary v. State Detention Order should indicate of Nagaland awareness of the fact that detenues is actually in custody. Mere reading out the grounds without translation script in language understood by the detenue is not sufficient.3. Jaseela Shaji v. Union Not all documents casually referred to of India be given to the detenue. Due & timely consideration of representation to Appropriate Authority.
4. Pramod Singla v. Delay in Consideration of Union of India, and representation
Kenneth Jideofor v.
Union of India
5. Joyi Kitty Joseph v. If Bail already granted before passing Union of India of Detention Order, it should reflect why Bail conditions are not sufficient for preventing detenue from further indulgence in smuggling activities.
6. Ankit Ashok Jalan v. Four basic principles of Consideration Union of India of representation by Appropriate Authority: opportunity of representation; consideration of representation by Appropriate Authority is independent of action by Advisory board; timely consideration of representation; & exercise of opinion & judgment by Appropriate government before forwarding the case to Advisory Borad.
7. Kamleshkumar Failure to inform the right to Ishwardas Patel v. representation causes denial of the Union of India right u/ Art 22.
8. Shabana Abdulla v. WhatsApp chats of Four accused were Union of India relied upon but were not furnished to them. Writ filed by three accused was allowed by High Court but dismissed the Petitioner's Writ. It was reversed by Supreme Court
9. Vihaan Kumar v. Relates to arrest and communication State of Haryana, of grounds of arrest under Prevention Prabhir Purkhyastha of Money Laundering Act (PMLA) v. State of Haryana,
and Pankaj Bansal v.
Union of India
10. Having considered the contentions advanced,
we notice that the major contention on which the order of
detention is challenged is that the copy of the pen drive
which is one of the relied on materials had not been made
available to the detenue along with the other relied on
documents.
11. We notice that in the Statement of Objections, it
has been clearly stated by the learned ASGI that the pen
drive was taken to the prison where the detenue was
housed and was played on a laptop and the detenue was
shown the entire contents of the pen drive. She duly
acknowledged this fact on 27.04.2025 and also specifically
asked for the pen drive to be delivered to her lawyer-Shri.
Shashwath S. Prakash. It is specifically pleaded that
repeated attempts were made to deliver the pen drive
either to the lawyer or to the detenue's mother, that is,
the petitioner herein. Eventually, the petitioner-mother
accepted the pen drive on 17.05.2025 at 6:20 p.m.
12. We have given our anxious consideration to the
decisions on the point which are relied on by the learned
senior counsel for the petitioner. We notice that the
providing of copies of all relied on materials, which are
taken into account by the detaining authority for passing
the order of detention is sine qua non for the passing of a
valid detention order.
13. It is not in dispute that the pen drive would also
be one of the relied on materials. However, in the instant
case, it is clear that the detenue was in judicial custody
when the detention order and the relied on materials were
served on her. It is clear that the serving of a pen drive
without the hardware required to play the same would
have served no purpose at all. It is clearly contended that
an Officer of the respondents had gone to the prison with a
laptop and had played the entire contents of the pen drive
to the detenue in her presence which she acknowledges in
writing. She thereafter required the pen drive to be
handed over to her lawyer.
14. The Statement of Objections also speaks about
the repeated attempts made by the respondents to serve
the pen drive on the lawyer as required by the detenue.
However, the lawyer refused to accept the pen drive.
Ultimately, the pen drive was made available to the
petitioner herein, who is the mother of the detenue.
15. In the facts and circumstances of the instant
case, we are of the opinion that the contents of the pen
drive having been clearly shown to the detenue, the fact
that the person designated by her to accept the pen drive,
refused to do so, cannot be relied on by the petitioner to
contend that the order of detention was vitiated.
16. In the peculiar facts and circumstances of the
instant case, we are of the clear opinion and the
contention that the pen drive was not served on the
detenue cannot be a reason to invalidate the order of
detention.
17. The next serious ground urged is that pages
No.1010 and 1011 of the materials supporting the
detention being in Kannada language and the detenue
being unable to read Kannada, the order of detention was
vitiated on that count also. However, the objections clearly
show that the writing in Kannada language related to an
unrelated bail petition and the said pages were used only
as backing sheets in the relied on documents by mistake
and were not relied upon at all.
18. That specific statement in the Statement of
Objections regarding the provision of translated documents
reads as follows:-
"40. x x x x x It is humbly submitted that the bail application vide Crl. Misc. No. 2598 of 2025 submitted by Shri Tarun Konduru Raju to Hon'ble Sessions Court, Bengaluru (CCH-64) as received by the Sponsoring Authority were furnished to the Detaining Authority. These documents also included two pages which happened to be in Kannada Language. These two pages were given to the Sponsoring Authority as part of the bail application by Shri Tarun Konduru Raju's Advocate and the same were attached by them to shield the documents from mutilation of the main documents. Hence, these two pages were not relevant to the present case. However, for the sake of completeness, the said two pages were also provided to the Detaining Authority who, while formulating the grounds of detention, has not relied on these two pages but only on the bail application, objection to the said bail application filed by DRI, BZU and the order passed by the Hon'ble Court rejecting the said bail application." x x xxx
19. We have perused the relied on documents and
we also find that pages No.1010 and 1011 in the relied on
documents written in Kannada are only used as backing
sheets and are not actually a part of the relied on
documents. Further, in the case of Jaseela Shaji (supra)
the Apex Court has observed as follows:
"28. There can be no doubt that it is not necessary
to furnish copies of each and every document to which a
casual or passing reference may be made in the narration
of facts and which are not relied upon by the Detaining
Authority in making the order of detention. However,
failure to furnish copies of such document/documents as
is/are relied on by the Detaining Authority which would
deprive the detenu to make an effective representation
would certainly amount to violation of the fundamental
right guaranteed under Article 22(5) of the Constitution of
India.
31. It could thus be seen that though this Court
held that a copy of every document mentioned in the
order is not required to be supplied to the detenu, copies
of only such of those documents as have been relied on
by the detaining authority for reaching the satisfaction
that preventive detention of the detenu is necessary are
required to be supplied to him."
20. In the above view of the matter, we are clear in
our minds that the non-supply of the translations of pages
No.1010 and 1011 cannot be fatal to the Detention Order
since the said two pages in Kannada language are not part
of the relied upon materials at all. Further, with regard to
the contention that pages No.1077 and 1099 of the relied
on documents were furnished in a truncated form. We
notice that the truncation was only due to a faulty
Photostat copy and that the relied upon documents have
been served in their full form along with the detention
order to the detenue. The said ground also therefore
cannot be relied on.
21. Further, the order of detention specifically
records that the detenue is suffering imprisonment and
that her applications for bail have been rejected. However,
the detention order also records that there is every
possibility of the detenue being released on bail and that
the detention of the passport of the detenue in Court
custody would not be sufficient in the nature of the
offences committed by her to deter her from committing
similar offences of smuggling in the future as well.
Further, the contention that she has not been informed of
her right to submit the representations is also incorrect
since the order of detention specifically contains such
information. Further, the contention that the detenue has
a right to be represented by Legal Counsel is also
absolutely incorrect since there is no such right provided
under Section 8(e) of the COFEFOSA Act. Further, the
representations submitted by the detenue have been
placed before the Advisory Board and have been
considered and rejected by the Central Government. The
contention raised that there is a delay in serving the
grounds of detention also cannot be accepted since Section
3(3) of the COFEPOSA Act provides that the grounds of
detention shall be communicated to the person detained 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. In the instant case, the
grounds of detention supporting the detention order dated
22.04.2025 has admittedly been served on 27.04.2025.
22. We therefore come to the conclusion on a
consideration of the materials placed on record and the
pleadings of the parties that the order of detention has
been passed after considering all the relevant aspects of
the matter. We also notice that the representations
submitted by the detenue have been duly considered.
23. In the above situation, we are of the opinion
that the challenge raised as against the order of detention
cannot be sustained. The writ petition fails and the same is
accordingly dismissed.
Sd/-
(ANU SIVARAMAN) JUDGE
Sd/-
(VIJAYKUMAR A. PATIL) JUDGE cp*
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