COFEPOSA Act| Subjective Satisfaction Of Detaining Authority Can't Be Challenged Except On Grounds Of Malafide: Karnataka High Court

The Karnataka High Court has held that grounds on which subjective satisfaction is based while passing a detention order by the authority under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), cannot be challenged in a court of law, except on the grounds of malafides. A division bench of Justice Alok Aradhe and Justice M G S Kamal while dismissing a petition filed by the daughter of a detenu Gurmeet Singh Kohli said, "It is well settled in law that the reasonableness of satisfaction of detaining authority cannot be questioned in a court of law, for the reason that satisfaction of detaining authority to which Section 3(1)(a) of the Act refers to be subjective satisfaction of the Authority." It added,"It is an equally well settled legal proposition that the court does not interfere with the subjective satisfaction reached by the detaining authority except on exceptional and extremely limited grounds and the court cannot substitute its opinion for that of the detaining authority." Case Background: The detention order dated 23.02.2021 was passed against Kohli by the authority to prevent him from smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. Being aggrieved by the order of detention, the detenue submitted a representation before the Advisory Board, which in its report dated 21.10.2021 opined that reasons recorded by the detaining authority was sound and proper. The Central Government by an order dated 08.11.2021 also confirmed the order of detention. Petitioners arguments: Senior Advocate Kiran S Javali appearing for the petitioner submitted that the documents from which the subjective satisfaction was derived by the authority were required to be supplied to the detenu and the same was not done. Further, the documents which were taken into consideration while forming the subjective satisfaction were not furnished to the detenue. It was also urged that vital material which was required to be placed for consideration before the detaining authority to enable it to form the subjective satisfaction was not placed before it and therefore, the order of detention is vitiated in law. Finally, it was said the order of detention is violative of Article 22(5) of the Constitution of India. Prosecution Opposed plea: Advocate Madhukar Deshpande appearing for the authority argued that it is an admitted position that the grounds of detention and the documents relied upon by the detaining authority were supplied to the detenu. It was further contended that the order of detention was passed in accordance with law after due application of mind and the subjective satisfaction was derived from the material facts available on record. Court findings: Relying on two Supreme Court judgements in the case of 'Rameshwar Shaw Vs. District Magistrate, Burdwan & Anr., [AIR 1964 Sc 334] and 'Subramanian Vs. State Of Tamil Nadu & Anr.', (2012) 4 SCC 699, the court said "The subjective satisfaction has been recorded by the detaining authority on the basis of statements recorded during the search as well as several documents seized during the search to which reference has been made in the grounds of detention." It added, "Thus, from perusal of order of detention, there was adequate material before the detaining authority, on the basis of which the subjective satisfaction was recorded by it." The court then opined that"The adequacy of the material on the basis of which the subjective satisfaction has been formed cannot be examined by this court and the material upon which the aforesaid subjective satisfaction has been arrived at are not extraneous to the scope or purpose of the legislative provision." Further, it observed "All the relied upon documents have been admittedly supplied to the detenue. Therefore, the contention of the detenu that the material on the basis of which subjective satisfaction was derived was not supplied to him is sans substance." On going through the order the court also noted that it is evident that the detenue has propensity and potentiality to engage in the offences and despite service of summons has indulged in the commission of offences. Accordingly, it held "In view of the preceding analysis, we do not find any ground to interfere with the order of detention. In the result, the petition fails and is hereby dismissed." Case Title: Mrs Kiran Iccha Kaur Bhasin And Director-General Case No: WPHC 123/2021 Citation: 2022 LiveLaw (Kar) 33 Date of Order: January 24, 2022 Appearance: Senior Advocate Kiran S Javali a/w Advocate Chandrashekhara K for petitioner Advocate Madhukar Deshpande a/w Advocate Thejesh P for respondentsClick Here To Read/ Download Order

COFEPOSA Act| Subjective Satisfaction Of Detaining Authority Can't Be Challenged Except On Grounds Of Malafide: Karnataka High Court

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