Gold Smuggler, Nisar Aliyar

Smuggling of huge volume of gold is common. Nisar Pallathukadavil Aliyar was the mastermind of the smuggling syndicate. Happy Dhakad abetted smuggling by receiving gold from Nisar Aliyar and disposing them off through outlets run by him and his relatives.

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On 28.03.2019 search and interception of a Honda Activa scooter and a Honda City car resulted in recovery of 75 kilograms of gold in the form of five circular discs valued at Rs. 24.5 Crores. Follow-up searches conducted in the offices and residential premises of the connected persons resulted in further recovery of 110 kilograms of gold and currency amounting to Rs. 1.81 Crores.

Shoeb Zarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad were summoned; they are alleged to have made statements regarding receiving of smuggled gold from Nisar Aliyar, who was arrested on 31.03.2019 for commission of offences punishable under Section 135 of The Customs Act, 1962. The Detaining Authority-Joint Secretary [COFEPOSA], on being satisfied that the detenues have high propensity to indulge in prejudicial activities, with a view to prevent them from smuggling and concealing smuggled gold in future, passed orders of detention on 17.05.2019 under Section 3 of The Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974.

Section 3(3) of The COFEPOSA Act allows a leeway of five days at least for the grounds of detention and the documents relied upon in the grounds to be served on the detenues. By the term “as soon as may be…”, the statute considers five days as a reasonable time in normal circumstances to convey the grounds of detention to the detenues. There is no statutory obligation on the part of the detaining authority to serve the relied upon documents on the very same day of the service of the order of detention; more so, when there is nothing to show that the detaining authority was guilty of inaction or negligence. In view of the time stipulated in Section 3(3) of The COFEPOSA Act and the language used in Article 22(5), non-serving of copies of documents together with detention order cannot be a ground to quash the detention order. The High Court erred in quashing the detention orders on the ground that the documents and the material were not supplied pari passu the detention orders.

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. By various decisions, SC has carved out areas within which the validity of subjective satisfaction can be tested. In the present case, huge volume of gold had been smuggled into the country unabatedly for the last three years and about 3396 kilograms of the gold has been brought into India during the period July, 2018 – March, 2019. Based on the documents and the materials placed before the detaining authority and considering the individual role of the detenues, the detaining authority satisfied itself as to the detenues’ continued propensity and their inclination to indulge in acts of smuggling in a planned manner to the detriment of the economic security of the country. The High Court erred in interfering with the satisfaction of the detaining authority.”

Hon’ble Justice R. Banumathi, Union of India v. Dimple Happy Dhakad, [Criminal Appeal No. 1064 of 2019].

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Nisar Pallathukadavil Aliyar