Joyi Kitty Joseph vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._______________ OF 2025 (@Special Leave Petition (Crl.) No.16893 of 2024)

JOYI KITTY JOSEPH …Appellant

VERSUS

UNION OF INDIA & ORS. …Respondents

JUDGMENT

Leave granted.

2. The wife of the detenu; detained under

the provisions of the Conservation of Foreign

Signature Not Verified Exchange and Prevention of Smuggling Digitally signed by Nirmala Negi Date: 2025.03.06 15:24:45 IST Reason: Page 1 of 30 Activities Act, 19741, is before us challenging

the order of detention. There is no challenge to

the procedural aspects which have been

scrupulously complied with. The High Court,

before whom the detention order and its

subsequent confirmation have been assailed

rejected the contentions; which decision is

impugned in the above appeal. The detention

order, impugned before the High Court, is

produced as Annexure P-1.

3. We have heard Mr. Farook M.

Razack, learned Senior Counsel for appellant

and Mr. Vikramjit Banerjee, learned Additional

Solicitor General for India for the respondents.

4. Essentially, three grounds are raised

before us to secure the release of the detenu

1 “the COFEPOSA Act”

Page 2 of 30 who is behind bars for almost a year, the arrest

being on 05.03.2024. That there is clear non-

application of mind since the allegations are

raised under clauses (i) to (iv) of Section 3(1) of

the COFEPOSA Act, in an omnibus manner,

clearly revealing the bias of the detaining officer.

The attempt was to somehow obtain preventive

detention of the person who was arrested on the

basis of the offences alleged; in which crime he

was granted bail by the jurisdictional Court,

imposing very stringent conditions. Then, the

Department had moved an application for

cancellation of bail which was never pursued

and importantly, the said application was not

placed before the detaining authority. The

detaining authority, thus, did not have the

opportunity to consider the grounds raised for

cancellation of bail and to consider as to why

Page 3 of 30 preventive detention should be made when such

an application for cancellation of bail was

pending before the competent Court. A

cancellation would have resulted in the detenu

being taken back in custody, in which event

there was no cause for shackling the appellant

on a preventive basis. When a judicious

consideration was possible, as to whether the

appellant should be taken back in custody, an

order for preventive detention ought to have

been avoided, which would also be in violation

of the salutary provisions under Article 14, 19

and 21 of the Constitution of India, 1951. The

last ground urged is that the impugned order

refers to a conviction in a case involving

narcotics which conviction is challenged before

the Hon’ble Supreme Court by way of an appeal

in which the detenu is also released on bail. The

Page 4 of 30 crime itself was registered way back and the

incident has no live link with the order of

detention. It is also urged that the proviso to

Section 3(1) of the COFEPOSA Act specifically

prohibited a detention under that provision if an

order of detention can be made under Section 3

of the Narcotic Drugs and Psychotropic

Substances Act, 19852.

5. To press home the contention of

complete non-application of mind, the learned

Senior Counsel for the appellant relied on a

number of decisions. Clauses (i) to (iv) of Section

3(1) in seriatim refers to, smuggling goods (i),

abetting the smuggling of goods (ii), engaging in

transporting or concealing or keeping smuggled

goods (iii) and dealing in smuggled goods

2 “NDPS Act”

Page 5 of 30 otherwise than by engaging in transporting or

concealing or keeping smuggled goods (iv). To

consider whether the allegations against the

detenu falls within all these, necessarily, we

have to go through the detention order detailing

the allegations raised against the detenu.

6. There was intelligence gathered that

the detenu along with his wife (appellant-herein)

were operating a syndicate involved in

smuggling foreign original gold into India and

selling it in the market. There was also specific

intelligence regarding the transmission of 10 kg.

of smuggled gold through named persons for

selling in the local Mumbai market at a specified

location; a shop room, wherein a raid was

conducted on 05.03.2024. Huge cache of gold

bars, coins and cut pieces along with a huge

quantity of Indian currency was recovered from

Page 6 of 30 the premises. On enquiry with the persons

present in the shop, it was disclosed that the

contraband was brought in by Mohammad

Rafique Noor Mohammad Razvi @ Aarif and

Mahendra Jain and kept therein for sale in the

local market on a cash basis without any invoice

or bill. Mohammad Rafique Noor Mohammad

Razvi @ Aarif and Mahendra Jain on being

questioned admitted to the gold having been

brought and kept at the shop on instructions

from the detenu and they were stated to be

acting as agents to sell the gold in the market

on a commission basis. There were no

documents produced pertaining to the cash and

gold, to substantiate the legal sourcing of such

goods and the same was seized by the officers of

Page 7 of 30 the Directorate of Revenue Intelligence3 who

had conducted the raid.

7. The DRI officers then, based on the

statements under Section 108 of the Customs

Act, 19624, raided the residential premises of

the detenu. The attempt made by the inmates to

prevent entry was thwarted by the officers and

the premises were found to be in complete

disarray clearly indicating attempts to conceal

contraband and other evidence regarding the

smuggling activities carried on by the residents

therein. The mobile phones and contraband,

thrown away, were recovered from the office

bearers of the Society of the residential complex

and further contraband was also recovered from

the residential premises of the detenu. The

3 “DRI” 4 “Customs Act”

Page 8 of 30 statements under Section 108 of the Customs

Act reveal that continued smuggling activities

involving gold bars and cut pieces of foreign

origin was carried on by a syndicate headed by

the detenu, in which Mohammad Rafique Noor

Mohammad Razvi @ Aarif and Mahendra Jain

acted as commission agents, the actual sale

having been carried out through Ummed Singh

and Mahipal Vyas, employees of the agents. All

of them confirmed their involvement in the

smuggling activities carried on by the detenu,

who was the kingpin of the operation.

Mohammad Rafique Noor Mohammad Razvi @

Aarif confessed to his involvement of smuggling

gold bars acting as an agent for the detenu at a

commission of Rs. 2000/- per kilogram.

According to him, the detenu used to send 2 to

3 kilograms of smuggled gold, with foreign

Page 9 of 30 markings, every day for sale, upon which, the

agent used to contact Mahendra Jain at his

shop; which was the subject matter of the raid

from which premises, the sale was effected. On

the basis of the statement recorded of the

aforesaid persons which was confirmed by the

statement of the detenu under Section 108 of

the Customs Act, the modus operandi of

smuggling gold from Dubai to India through

carriers, receipt of the same at Mumbai Airport

at a pre-determined location by the detenu and

his wife, the subsequent delivery to Mohammad

Rafique Noor Mohammad Razvi @ Aarif and

sale through him on a commission basis has

been detailed in the order of detention. We are

convinced that the above facts reveal that the

detenu has not only been involved in smuggling

of goods, but also has abetted such smuggling

Page 10 of 30 of goods through carriers, engaged in receiving

the same, dispatching it to middle-men for

keeping it concealed in their premises and

effecting sale through them; who were paid a

commission. This definitely brings in the

ingredients of each of the clauses under (i) to (iv)

of Section 3(1)1.

8. Narendra Purshotam Umrao v. B.B.

Gujral5, held that the different grounds

mentioned in Section 3(1) are all regarding

smuggling of goods and the word smuggling

includes abetting smuggling activities. Therein

also, the contention of non-application of mind

was held to be not sustainable since there is

always, on facts, overlapping of smuggling and

its abetting. As was noticed above, in the

5 (1979) 2 SCC 637

Page 11 of 30 present case it has been clearly substantiated

that the detenu was at the helm of affairs of the

smuggling of gold, a continuing activity,

wherein he had engaged carriers to carry out the

act of smuggling, from whom the smuggled

goods were received either by him or his wife,

alone or together and then transmitted to the

agents who would sell them in the market on a

cash basis without invoices or bills; the

proceeds of which minus the commission is

received by the detenu. There is a complete

chain of activity revealed which commences

with the detenu and ends with him, bringing in

the ingredients of all the four provisions.

9. We, further, notice from the

detention order, which has been extracted in the

judgment of the High Court, from paragraph 3

to 9 where the satisfaction has been entered by

Page 12 of 30 the detaining authority. The detenu was found

to be a habitual offender and a key person of the

well-organized syndicate involved in smuggling

and disposal of foreign gold brought illegally

into India, which activity was habitually carried

out through his associates without declaration

before the customs authorities and without

payment of applicable duties. The smuggling of

gold was for the purpose of illegal profiteering

putting the national economy into danger which

activity was sought to be curbed by the

detention order. The detenu was found to have

indulged in the activities amounting to

smuggling under both the Customs Act and the

COFEPOSA Act. The detenu was also found to

have an innate propensity to devise ways and

means to smuggle foreign gold into India which

was done through a well-organized smuggling

Page 13 of 30 network and an established mechanism

operated through trusted associates. The

habitual indulgence in such fraudulent

activities by way of smuggling goods, abetting of

smuggling of goods, engaging in transporting

and concealing or keeping the smuggled goods

and dealing in such smuggled goods at the cost

of government revenue and national security

was found to be with a clear motive of illegal

enrichment with no concern to the general

economy and national security interests. The

detenu was found to have played a vital role in

smuggling foreign original gold through the

organized network and executing disposal of

such smuggled goods with meticulous planning

and deliberate design, regardless of the

consequences to the society at large. The

detaining authority not only has detailed the

Page 14 of 30 various aspects of smuggling carried out by the

detenu but has also brought out the ingredients

of each of clauses (i) to (iv) of Section 3(1) for the

purpose of ordering preventive detention,

validated further by the huge seizures made

from different locations.

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;

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

Page 15 of 30 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

Page 16 of 30 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

6 (2020) 13 SCC 632

Page 17 of 30 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;

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

Page 18 of 30 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

Page 19 of 30 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

Page 20 of 30 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 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

Page 21 of 30 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

Page 22 of 30 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 Bihar7 :

“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

7 AIR 1968 SC 1303

Page 23 of 30 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]

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

8 (2023) 9 SCC 587 9 (2011) 5 SCC 244

Page 24 of 30 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

10 (1975) 3 SCC 198

Page 25 of 30 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

Page 26 of 30 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 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 Begum8, 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 11 (1984) 3 SCC 14

Page 27 of 30 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

Page 28 of 30 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 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.

Page 29 of 30

23. Pending application(s), if any, shall

stand disposed of.

……………………..……………, J.

[SUDHANSHU DHULIA]

……………………..……………, J.

[K. VINOD CHANDRAN]

NEW DELHI;

March 06, 2025.

Page 30 of 30