UNION OF INDIA 2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA, MINISTRY OF FINANCE versus DIMPLE HAPPY DHAKAD

Citation: [2019] 8 S.C.R. 1153 · Decided: 18-07-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Disposed off

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Judgment (excerpt)

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1. UNION OF INDIA
2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA,
MINISTRY OF FINANCE
v.
DIMPLE HAPPY DHAKAD
(Criminal Appeal No. 1064 of 2019)
JULY 18, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 – s.3 – Customs Act, 1962 – ss.135,
108 – Appellants-Union of India case that respondents smuggled
huge volume of gold weighing more than 3300 kgs. from UAE to
India – Respondents were arrested for the offence punishable u/
s.135 of the Customs Act – Orders of detention were passed on
17.05.2019 against the respondents u/s.3 of COFEPOSA – Detention
orders were served on respondents-detenues on 18.05.2019 however,
compilation of documents was served on detenues on  21.05.2019
and 22.05.2019 – High Court quashed the detention orders on the
ground that the relied upon documents were not served upon the
detenues together with the detention orders and there was violation
of guideline No.21 (Part A of DO’s) and guideline No.9 (Part B of
Don’ts) of “Hand Book on compilation of Instructions on
COFEPOSA matters” – On appeal, held:s.3(3) of COFEPOSA
stipulates the statutory period of five days to serve the grounds of
detention and in exceptional circumstances and for reasons to be
recorded not later than fifteen days from the date of detention – In
the instant case, the detention orders and the grounds of detention
were served upon the detenues on 18.05.2019 – The relied upon
documents were served upon them between 20.05.2019 and
22.05.2019 i.e. within five days from the date of serving detention
orders i.e. 18.05.2019 – Therefore, the statutory requirement was
complied with – The High Court erred in quashing the detention
orders on the ground that the documents and materials were not
supplied pari passu the detention orders – In so far, “Hand Book on
compilation of Instructions on COFEPOSA matters” is concerned,
   [2019] 8 S.C.R. 1153
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SUPREME COURT REPORTS
[2019] 8 S.C.R.
the said guidelines were also fully complied with – Also, it is well
settled principle that any executive instructions like guidelines
cannot curtail the provisions of any statute or whittled down any
provision of law – Thus, impugned judgment of the High Court
quashing the detention orders set aside.
Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 – s.3 – Appellants-Union of India
alleged that respondents smuggled huge volumes of gold from UAE
to India – Detaining Authority-Joint Secretary (COFEPOSA) being
satisfied that the respondents had high propensity to indulge in the
prejudicial activities, passed order of detention dated 17.05.2019
u/s.3 of the COFEPOSA Act – High Court quashed the detention
orders on the ground that the detaining authority has to record
grounds of detention indicating the reasons with the satisfaction
that there is imminent possibility of detenue’s release from the custody
and after release, such person is likely to continue to indulge in the
prejudicial activities – On appeal, held: The detention orders dated
17.05.2019 recorded the awareness of the detaining authority : (i)
that the detenue is in custody; (ii) that the bail application filed by
the detenues was rejected by the Court – Merely because in the
detention orders, the detaining authority has not specifically
recorded that the ‘detenue is likely to be released’, ‘detenue’s
likelihood of being released on bail’ and ‘if so released, he is likely
to indulge in the same prejudicial activities’ , it cannot be said that
detaining authority did not apply its mind – The detaining authority
had clearly recorded the antecedent of the detenues – On the facts
and circumstances of the present case, the subjective satisfaction
of the detaining authority that the detenue is likely to be released
on bail was based on materials – On perusal of the grounds of
detention, it is clear that detenues were indulging in smuggling of
gold and disposing of the foreign origin smuggled gold through
jewellery outlets – High Court erred in quashing the detention orders
merely on the ground that the detaining authority had not expressly
recorded the finding that there was real possibility of the detenues
being released on bail – Thus, order of the High Court not
sustainable.
Allowing the appeals of Union of India and dismissing the
appeals of detenues, the Court
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HELD : 1. Section 3(3) of the Conservation of Foreign
Exchange & Prevent

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