Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. The further contention taken by the appellant is of there being no live link insofar as the reference to the case under the NDPS Act; 426 the subject matter of which cannot also be proceeded with under the COFEPOSA Act, due to the prohibition in the proviso to Section 3(1). True, there is a reference to the crime under the NDPS Act as one in which the appellant was involved. However, the same was only in relation to the specific ground taken by the detaining authority that after release of the detenu from jail in Baroda, in October, 2013; pursuant to the bail granted by this Court, the detenu had officially changed his name from ‘Afzal Haroon Batatawala’ to ‘Sameer Haroon Marchant’, in which name he was arrested in a case of gold smuggling in the year 2017. We do not find any reference made to the allegations in the narcotics case in the operative portion of the detention order. It cannot be disputed that there is no live link with the arrest in the narcotics case, in which, by the year 2013, he had spent nine years of the sentence awarded. The subject matter of a narcotics case cannot also be a ground for preventive detention under Section 3(1) of the COFEPOSA Act. Be that as it may, we do not find either of these points, vitiating the impugned order, since, neither is the subject matter of offence under the NDPS Act referred to in the detaining order nor is the involvement in the said crime a ground taken for detention under the COFEPOSA Act. As is noticed above, reference to the NDPS case is only to emphasise the propensity of the detenu to involve in such illegal activities by even changing the name officially, to supress his real identity. We do not find any reason to hold the detention to be illegal on the ground of a mere reference to the NDPS case; which we reiterate is only to emphasise the change in name resorted to by the detenu after being released on bail.
11. The decision in Khaja Bilal Ahmed v. State of Telangana6 deprecated the order of the detaining authority which merely referred to a pending criminal case, without any clear indication and casual connection to hold it as the basis of an order of detention. We have already found that, here, the involvement in a case under the NDPS Act, was not raised as a ground, anywhere in the detention order. The incidents which led to the impugned detention order commenced on a raid in the premises of the detenu’s associates followed up with successive raids at the residence of the detenu and other associates, from all of which locations there was recovery of huge cache of contraband; (2020) 13 SCC 632 [2025] 3 S.C.R. Joyi Kitty Joseph v. Union of India & Ors. commending us to uphold the subjective satisfaction entered into by the detaining authority.
12. The last contention raised is with respect to the application for cancellation of bail having not been placed before the detaining authority. The impugned judgment has specifically considered the said ground and finds that the application for cancellation of bail was filed on 06.05.2024 and the detention order was passed on 09.05.2024. There was no possibility of placing the said document before the detaining authority and the same would not amount to non-supply of a vital document, since the cancellation of bail cannot be considered as an alternative to a detention order. We would, rather, emphasise on the undisputed fact that both the parties are in agreement that the cancellation of bail has not been pursued by the department. The grounds for cancellation of bail could not have swayed the detaining authority this way or that way; since it was not competent on the authority to speculate as to whether the jurisdictional Court would permit such cancellation. In fact, if the application for cancellation of bail was allowed then probably the situation would have been different. We are also of the opinion that the non-supply of the application for cancellation of bail would not be a compelling circumstance to find the order itself to be vitiated. We find absolutely no reason to interfere with the preventive detention order on the grounds stated herein above.
13. However, as the sentinel on the qui vive we cannot, but, notice a compelling ground, which was not argued before us. Admittedly, after the successive raids and the arrest of the accused, including the detenu, the accused were remanded to judicial custody. The original confessional statements were retracted when they were produced before the Additional Chief Metropolitan Magistrate at the 19th Court, Esplanade, Mumbai. The detenu was initially placed in judicial custody till 19.03.2024 and an extension was subsequently granted till 01.04.2024 by the jurisdictional Magistrate who further extended the judicial custody till 15.04.2024. The bail application dated 01.04.2024 before the jurisdictional Magistrate was replied to by the DRI, Mumbai on 15.04.2024.
14. The jurisdictional Magistrate released the detenu on bail vide order dated 16.04.2024 on certain conditions. The order of the Magistrate is extracted in the impugned judgment. The contentions raised by the 428 DRI regarding the all-pervasive role of the detenu and his propensity to indulge in such smuggling activities, detrimental to the interest of the nation was considered in juxtaposition with the contention raised by the accused; on the basis of the investigation carried out thus far. The specific ground raised by the prosecution of apprehension of involvement in similar type of smuggling activity was reckoned by the jurisdictional Magistrate while granting bail and imposing conditions to prevent the detenu from engaging in such smuggling activities. The various conditions are revealed from the order extracted and have been referred to in paragraph-(xxii) of the detention order. However, nothing is stated by the detaining authority as to why the conditions are not sufficient to prevent the detenu from engaging in further activities of smuggling; which was the specific ground on which the conditions were imposed while granting bail.
15. We are not examining the conditions imposed by the Magistrate since it was for the detaining authority to look into it and enter into a subjective satisfaction as to whether the same was sufficient to avoid a preventive detention or otherwise, insufficient to restrain him from further involvement in similar smuggling activities. As has been held in Rameshwar Lal Patwari v. State of Bihar 7 : “The formation of the opinion about detention rests with the Government or the officer authorised. Their satisfaction is all that the law speaks of and the courts are not constituted an Appellate Authority. Thus the sufficiency of the grounds cannot be agitated before the court. However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors. The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others.’ [underlining by us for emphasis] AIR 1968 SC 1303 [2025] 3 S.C.R. Joyi Kitty Joseph v. Union of India & Ors.
16. If there is a consideration, then the reasonableness of the consideration could not have been scrutinised by us in judicial review, since we are not sitting in appeal and the provision for preventive detention provide for such a subjective satisfaction to be left untouched by the Courts. However, when there is no such consideration then we have to interfere.
17. Ameena Begum v. State of Telangana and others8 held that the observations in Rekha v. State of T.N.9; that preventive detention is impermissible when the ordinary law of the land is sufficient to deal with the situation was per incuriam to the Constitution Bench decision in Haradhan Saha v. State of W.B.10, in the limited judicial review available to constitutional courts in preventive detention matters. The Courts would be incapable of interference by substituting their own reasoning to upset the subjective satisfaction arrived at by the detaining authority, especially since preventive detention law is not punitive but preventive and precautionary.
18. In Ameena Begum8, this Court was concerned with the true distinction between a threat to “law and order” and acts “prejudicial to public order”, which was not to be determined merely by the nature or quality of the act complained of, but was held to lie, in the proper degree and extent of its impact on the society. It was held that there could be instances where “disturbance of public order” would not be attracted but still, would fall within the scope of maintenance of “law and order”. It was held that :- “preventive detention laws—an exceptional measure reserved for tackling emergent situations—ought not to have been invoked in this case as a tool for enforcement of “law and order” (sic para 47), especially when the existing legal framework to maintain law and order is sufficient to address the offences under consideration.
19. Likewise, in the present case, we are not concerned as to whether the conditions imposed by the Magistrate would have taken care of the apprehension expressed by the detaining authority; of the detenu indulging in further smuggling activities. We are more concerned with the aspect that the detaining authority did not consider the efficacy (2023) 9 SCC 587 (2011) 5 SCC 244 (1975) 3 SCC 198 430 of the conditions and enter any satisfaction, however subjective it is, as to the conditions not being sufficient to restrain the detenu from indulging in such activities.
20. Ameena Begum,8 noticed with approval Vijay Narain Singh v. State of Bihar 11 and extracted paragraph 32 from the same: “It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” [underlining by us for emphasis]
21. The criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling activities, through a network set up, revealed on successive raids carried on at various locations, on specific information received, leading to recovery of huge cache of contraband. When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered. The detention order being silent on that aspect, we interfere with the detention order only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations in which also have led to the preventive detention, assailed herein, to enter a satisfaction as to (1984) 3 SCC 14 [2025] 3 S.C.R. Joyi Kitty Joseph v. Union of India & Ors. whether those conditions are sufficient or not to restrain the detenu from indulging in further like activities of smuggling.
22. We, hence, allow the appeal and set aside the order of detention. The detenu shall be released forthwith, if still in custody.
23. Pending application(s), if any, shall stand disposed of. Result of the case: Appeal allowed. †Headnotes prepared by: Ankit Gyan