While upholding the detention orders passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Supreme Court has held that a detenu cannot seek legal assistance in a routine manner when an officer merely places the records and assists the Advisory Board on behalf of the Detaining Authority.

The petitioners approached the Apex Court challenging the judgments of the Karnataka High Court upholding the Detention Orders issued in exercise of the powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

The Division Bench of Justice M. M. Sundresh and Justice Nongmeikapam Kotiswar Singh held, “In other words, when an officer merely places the records and assists the Advisory Board on behalf of the Detaining Authority, a detenu cannot seek legal assistance in a routine manner. As stated above, such officials do not have any other role, other than merely assisting the Advisory Board to produce necessary records/documents. Thus, we are of the view that the decision rendered in A.K. Roy (supra) actually helps the case of the respondents, as it has been specifically averred by them that the concerned officers did not participate in the proceedings, except for assisting in production of the relevant records.”

Senior Advocate Kiran S Javali represented the Petitioner while Additional Solicitor General Raghvendra P Shankar represented the Respondent.

Factual Background

It was the specific case of the respondents that the detenu Sahil Sarkariya Jain had facilitated the disposal of consignments of foreign-marked gold bars on four different occasions, along with the other detenu Harshavardhini Ranya. Specific intelligence was received by the Department of Revenue Intelligence (DRI), Bengaluru Zonal Unit, that one female passenger bearing an Indian Passport was suspected of carrying gold, either in the form of gold bars or in the form of a paste, while travelling from Dubai, United Arab Emirates, to Bengaluru, India. An interception of the detenu Harshavardhini was made, which was followed by the recovery of a huge quantity of gold amounting to 17 foreign-marked gold bars, weighing approximately 14.2 kilograms. Harshavardhini was arrested, followed by the recording of her statement under Section 108 of the Customs Act, 1962, along with that of her associate.

In exercise of the powers conferred under Section 3(1) of the COFEPOSA Act, detention orders were passed by the Joint Secretary, Government of India, Ministry of Finance, DRI, Central Economic Intelligence Bureau (CEIB), COFEPOSA Wing. The representations made by the detenue were duly considered by the Detaining Authority and the Government of India, CEIB, and the rejection was, accordingly, communicated. The representation made by the detainee seeking legal assistance during the proceedings before the Advisory Board was also rejected. The reports of the Advisory Board were accepted by the Central Government, thereby confirming the Detention Orders in respect of both the detenus. Aggrieved, writ petitions were filed before the High Court by the mother of the detenu, Harshavardhini and the cousin of the detenu, Sahil.

Reasoning

The Bench, at the outset, explained that the import of Article 22(3)(b) of the Constitution can be seen on a reading of Section 8(e) of the COFEPOSA Act. “A detenu cannot seek legal assistance as a matter of right. The hearing provided under Section 8(c) of the COFEPOSA Act is meant for the detenu alone and, therefore, an officer representing the Detaining Authority has no other role while participating in the proceedings, except for producing the records.

The Bench further explained, “It is only when a hearing takes place where there is an active participation of the Detaining Authority, and that too with the leave of the Advisory Board, does the question of affording an opportunity of being heard through a legal practitioner arise qua the detenu. Any interpretation of the provision to the contrary would render Section 8(e) of the COFEPOSA Act otiose and redundant, especially when it draws its source from the mandate provided under Article 22(3)(b) of the Constitution.”

Coming to the facts of the case, the Bench noted that adequate reasons were recorded in the grounds of detention and the materials were also to the effect that there were prior occurrences of disposal of foreign marked-gold bars in India, and a live and proximate link to the present incident also stood established insofar as the detenu Sahil Sarkariya Jain was concerned. It was also noticed by the Bench that all the documents relied upon were duly furnished to the detenus.

Dealing with the contention made by the petitioners with respect to the nonsupply of the pen drive, the Bench found that substantial compliance was made by the officials of the respondents. The Bench found that the contents of the pen drive were displayed to the detenus on a laptop in the prison and endeavours were also made to supply the pen drive to the concerned representatives of the detenus. “When the prison rules, as such, do not facilitate a detenu/prisoner to have access to electronic gadgets, it cannot be said that the same should be made available to the detenus, more so, when no such requests were renewed by the detenus. Thus, we hold that the contention of non-supply of the pen-drive would amount to non-furnishing of the relied upon documents is nothing but an afterthought”, it held.

Reiterating that every document need not be supplied, the Bench held that the High Court had considered the contention of non-supply of the relied upon documents in the right perspective and correctly found that due service of the same had been made. “In our view, the Detention Order is also quite clear qua the imminent possibility of the detenus being released on bail”, it added.

Thus, the Bench dismissed the Special Leave Petitions.

Cause Title: Priyanka Sarkariya v. The Union of India & Anr. (Neutral Citation: 2026 INSC 371)

Appearance

Appellant: Senior Advocate Kiran S Javali, AOR Amol B. Karande, Advocates T. Archana, Rajeev Gupta, AOR K. K. Mani

Respondent: Additional Solicitor General Raghvendra P Shankar, AOR Gurmeet Singh Makker, AOR Rooh-e-hina Dua, Advocates Arav Pandit, Shrutika Garg, Shreya Arora, Yashika Kapoor, Riccky Chaudhary, Piyush Jain, Aroha Kadyan, Shivam Gandhi

Click here to read/download Judgment


Justice MM SundreshJustice N. Kotiswar Singh

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.