What Supreme Court ruled on Preventive Detention, Individual Liberty and Public Good

In a crucial ruling on the subject of preventive detention and personal liberty, the Supreme Court on Thursday held that liberty of a person has to be subordinate to the public good..“…we are conscious that the Constitution and the Supreme Court are very zealous of upholding the personal liberty of an individual. But the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. .In this judgment rendered by the Bench of Justices R Banumathi and AS Bopanna, the Court has set aside the order of the Bombay High Court which had quashed the preventive detention order filed against the Respondents in the case and while doing so, noted,.“When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society.”.The Facts.The case pertained to alleged smuggling of a huge volume of gold of more than 3300 kgs of gold camouflaging it with brass metal scrap. Detenue Nisar Aliyar was stated to be the mastermind and kingpin of the syndicate who along with others smuggled gold from UAE to India. Detenu Happy Dhakad abetted smuggling by receiving smuggled gold from Nisar Aliyar and his group and disposing them off through jewellery outlets run by him and his relatives..The respondents were arrested for the offence punishable under Section 135 of the Customs Act on March 29, 2019 and their statements were recorded under Section 108 of the Customs Act. The orders of detention were issued on May 17, 2019. The detention orders along with grounds of detention were served on the detenues on May 18, 2019. Since the documents were running into 2364 pages and there were fifteen detention orders passed against various detenues, the compilation of documents was served on detenues on May 21, 2019 and May 22, 2019 respectively..The detention orders of May 17, 2019 was assailed by the detenues by filing writ petitions before the High Court. The High Court vide interim order dated June 4, 2019 directed the appellant to consider the writ petitions as a representation of the detenues. Accordingly, the representation was considered and the same was rejected by the Joint Secretary (COFEPOSA) who did not find any justification in modification of the detention orders..Subsequently, by an order dated June 25, 2019 the High Court allowed the writ petition and quashed the detention orders by holding that there was no application of mind by the Detaining Authority in passing the detention orders. The High Court held that as per the principles laid down in Kamarunnisa v. Union of India (1991) 1 SCC 128, there was no application of mind indicating the satisfaction of the detaining authority that there was an imminent possibility of detenues being released on bail..The High Court also held that though the detention orders and grounds of detention were served on the detenues on May 18, 2019, the detenues were not served with the copies of relied upon documents and material particulars along with the orders of detention and grounds of detention. Hence, it held that there was a violation of Article 22(5) of the Constitution of India and violation of Guideline No.21 of “Hand Book on Compilation of Instructions on COFEPOSA matters”..The Union of India challenged this order of the High Court in Supreme Court..Arguments.Additional Solicitor General KM Natraj argued that the High Court erred in passing this judgment..Natraj submitted that the material relied upon by the Jt. Secretary of COFEPOSA was voluminous. Despite that, the copies of the same were handed over to the detenu within the time frame of five days stipulated under the COFEPOSA Act. Therefore, the due procedure was followed. He further argued that the detaining authority had satisfied himself of the possibility of the release on bail of the accused and acted on his subjective satisfaction, which cannot be interfered with by the Court..Senior Counsel Mukul Rohatgi, representing the detenu, opposed the submissions of ASG Natraj. He argued that the material relied upon by the detaining authority ought to have been served to the detenu pari passu and their subsequent serving deprived the detenu of making an effective representation. Rohatgi further argued that the dismissal of bail application of the detenu was taken on record by the detaining authority and thus the absence of satisfaction of likelihood of their release on bail would vitiate the detention orders..Judgment.The Supreme Court noted that Section 3 of the COFEPOSA provides for a period of five days for the detaining authority to serve the necessary material relied upon, to the detenu and does not make it mandatory for the same to be served along with the detention order. This reason, therefore, cannot be a ground for quashing the detention given that the due procedure as provided for by the statute was followed. The judgment reads:.“There is no statutory obligation on the part of the detaining authority to serve the grounds of detention and relied upon documents on the very same day; more so, when there is nothing to show that the detaining authority was guilty of inaction or negligence.”.As regards the question of subjective satisfaction, the Court noted that the detaining authority had taken on record the fact that the detenues were under custody up until two days after the detention order was passed. The role played by the detenu in the systematic smuggling syndicate was also outlined by the detaining authority which showed that the detenues were likely to engage in the same illegal activities upon release..Laying down the well-settled principle on this issue, the judgment states,.“It is well settled that the order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities. “.Delving into the facts of the case, the Court found that the detaining authority had listed all the antecedents of the detenu and his subjective satisfaction was based on material. It was observed,.“The court must be conscious that the satisfaction of the detaining authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune from judicial reviewability.”.Answering the contention that courts should lean in favour of upholding the personal liberty, the Supreme Court observed that while the Court is zealous in upholding the liberty of an individual, has to be subordinated within reasonable bounds to the good of the people..Order of detention is clearly a preventive measure and devised to afford protection to society. When the preventive detention is aimed to protect the safety and security of the nation, a balance has to be struck between the liberty of an individual and the needs of the society, the Court made it clear..The Court thus held that that High Court erred in interfering with the satisfaction of the detaining authority and the decision was liable to be set aside..[Read Judgment]