Supreme Court Sets Aside Preventive Detention, Citing Failure to Consider Bail Conditions as Sufficient Safeguard Against Reoffending
Kiran Raj
The Supreme Court of India has set aside the preventive detention order against an individual accused of smuggling gold, directing his immediate release. The case was heard by a Division Bench comprising Justice Sudhanshu Dhulia and Justice K. Vinod Chandran, which examined the legality of the detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The court found that the detaining authority failed to consider whether the bail conditions imposed by the jurisdictional magistrate were sufficient to prevent the accused from engaging in further smuggling activities.
The appellant, the wife of the detenu, challenged the preventive detention order issued against her husband, contending that it was based on non-application of mind. The detenu was accused of operating a syndicate engaged in smuggling foreign-origin gold into India and selling it in the domestic market. Acting on intelligence inputs, the Directorate of Revenue Intelligence (DRI) conducted a raid on March 5, 2024, at a specified location in Mumbai, recovering a substantial quantity of gold bars, coins, and Indian currency.
During the raid, individuals present at the premises admitted that the contraband was brought in by named persons on the instructions of the detenu. Their statements recorded under Section 108 of the Customs Act, 1962, revealed a well-organized smuggling network. The investigation further led to searches at the detenu’s residence, where additional contraband was recovered. Statements of other alleged accomplices confirmed that the detenu was at the helm of operations, overseeing the transportation, storage, and sale of smuggled gold.
The detenu was arrested and placed in judicial custody. Subsequently, he was granted bail by the jurisdictional magistrate on April 16, 2024, subject to stringent conditions aimed at preventing him from engaging in further illegal activities. However, the authorities later issued a preventive detention order under the COFEPOSA Act, leading to the current challenge before the Supreme Court.
The court examined the detaining authority's reasoning and found that the order was vitiated by a failure to consider relevant factors. The bench observed that the preventive detention order referred to multiple allegations under Section 3(1)(i) to (iv) of the COFEPOSA Act, encompassing smuggling, abetting smuggling, transporting or concealing smuggled goods, and dealing in smuggled goods. However, the court noted that:
“The detaining authority not only has detailed the 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.”
The appellant contended that there was no live link between the detention order and a previous conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which was also referenced in the detention order. The court observed that while the detenu’s involvement in an NDPS case was mentioned, it was not the basis for the preventive detention order. Instead, it was cited to highlight the individual’s alleged history of involvement in unlawful activities.
“Reference to the NDPS case is only to emphasize the change in name resorted to by the detenu after being released on bail.”
The court also rejected the argument that the failure to place the prosecution's application for cancellation of bail before the detaining authority invalidated the detention order. It noted that the application was filed on May 6, 2024, while the detention order was passed on May 9, 2024. Since the prosecution did not pursue the cancellation of bail, the court held that the non-placement of the application before the detaining authority did not materially affect the detention order.
However, the court identified a significant legal infirmity: the detaining authority had not examined whether the bail conditions imposed by the magistrate were adequate to prevent the detenu from re-engaging in smuggling activities. It stated that preventive detention is an extraordinary measure that should not be used when the regular criminal justice system can effectively address the issue.
“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.”
The bench relied on previous Supreme Court judgments, including Rameshwar Lal Patwari v. State of Bihar (AIR 1968 SC 1303) and Ameena Begum v. State of Telangana (2023) 9 SCC 587, which underscored that preventive detention cannot be used as a substitute for regular legal proceedings unless there is a clear necessity.
On this basis, the Supreme Court concluded that the detention order was unsustainable and directed the immediate release of the detenu.
“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.”
Accordingly, the appeal was allowed, and the detenu was ordered to be released forthwith, if still in custody.
Advocates Representing the Parties
For Appellant: Farook M. Razack, Senior Advocate.
For Respondent: Vikramjit Banerjee, Additional Solicitor General.
Case Title: Joyi Kitty Joseph v. Union of India & Ors.
Neutral Citation: 2025 INSC 327
Case Number: Special Leave Petition (Crl.) No. 16893 of 2024
Bench: Justice Sudhanshu Dhulia, Justice K. Vinod Chandran
[Read/Download order]
