Gimik Piotr vs State Of T.Nadu & Ors

Gimik Piotr ..............Appellant

Versus

State of Tamil Nadu & Ors. ..............Respondents

JUDGMENT

H.L. DATTU,J:

1) Leave granted.

2)By our order dated 28.10.2009, we had ordered release of the detenu at

once, subject to his custody being required in any other proceedings. We

had not assigned reasons while doing so and we had observed that the

detailed reasons will follow later.

3)We now proceed to give reasons for allowing the appeal and for setting

aside the decision of the High Court.

1 4)The appeal is directed against the order passed by the Madras High Court

in HCP No. 1874 of 2008, dismissing the petition filed by the appellant for

grant of a Writ in the nature of habeas corpus, and thereby sustaining the

order of detention passed by the detaining authority under Section 3(1)(i) of

the Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974.

5)The appellant-detenu is a Polish citizen and having business in Singapore.

He had come to India on earlier occasions for purchase of antiques and

garments (Textiles). He came to India for such business on 5.9.2008 and he

was due to return to Singapore on 7.9.2008 via Air India flight IC-557.

However in the Chennai International Airport, he was intercepted by the

customs officers. The detenu stated, that, he was carrying 2300 Pounds and

400 US Dollars only. A search of his baggage revealed currency worth

15,500 Euros, 39,700 US Dollars, 16,200 British Pound and Rs. 30,000/-,

adding to Rs. 40,72,878/- pasted to six sheaves of newspapers. The currency

was seized under a Mahazar for further action under Customs Act, 1962,

read with Regulation 5 of the Foreign Exchange Management (Export and

Import of Currency) Regulations, 2000, for trying to smuggle foreign

currency outside the country. The detenu was produced before E.O. II

Additional Chief Metropolitan Magistrate, Madras on 8.9.2008, who passed

2 an order remanding the appellant to judicial custody. The appellant filed

two bail applications, one before the E.O. II Additional Chief Metropolitan

Magistrate and another before the Court of Sessions. Both the applications

are dismissed.

6)The wife of the detenu sent a representation dated 12.9.2008, to the

Commissioner of Customs (Airport) Chennai, and the same was rejected as

well.

7)The Government of Tamil Nadu (respondent no.1), with a view to prevent

the appellant from smuggling goods in future, passed detention order

against the detenu under Section 3(1) (i) of the Conservation of Foreign

Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter

referred to as COFEPOSA) and kept him in custody in the Central Prison,

Chennai. The detenu requested through a representation dated 14.11.2008 to

the Advisory Board to allow him to represent through a lawyer before the

Advisory Board to effectively put forth his case. This plea was not

considered by the Advisory Board. The detenu being aggrieved by the order

of detention passed under the Act dated 04.11.2008 filed a writ petition

before the High Court inter-alia questioning the said order on various

grounds.

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8)The contention of the detenu-appellant before the High Court was that the

detention order was passed against him on the basis of a single, solitary and

isolated act of alleged smuggling activity is unsustainable in law in the

absence of any past antecedent and past prejudicial activities. Further the

material on record is not suggestive of any potentiality or tendency on the

part of the detenu for future smuggling activities. The appellant also

contended that the passport of the appellant has been impounded and,

therefore, there is no possibility of the detenu moving outside the country

for the purpose of smuggling. Hence the order of detention cannot be said to

be in accordance of the law, as the same has been passed by non-application

of the mind by the detaining authority.

9)The respondents resisted the challenge of the appellant on the ground that

the appellant by his own admission brought the currencies from a foreign

country for monetary consideration of $2000. Hence there is possibility of

the appellant being engaged in similar activities if he is allowed to move out

of the country. As far as retention of the passport by the customs

department, the respondents contended that even if the appellant remains in

the country, he may engage in abetment of smuggling activities. The nature

of past antecedents and activities of the detenu indicate that he is likely to

4 indulge in smuggling activities, if released and therefore, it is necessary to

detain him in order to prevent him from engaging in such activities.

10)The High Court placing reliance on the observations made in the case of

Pooja Batra v. Union of India, [(2009) 5 SCC 296], has concluded, that, a

single incident can prove the propensity and potentiality of the detenu to

carry out smuggling activities in the future also. It has also observed that the

statement of the appellant that he was smuggling foreign currency on the

behest of other people for monetary consideration is another factor that

requires to be taken note of to arrive at the conclusion that there was

propensity and potentiality of the appellant to engage in future with his

smuggling activities. The High Court is also of the view, that, if the

appellant remains in India, there is possibility that he will be involved in

abetment of smuggling activities. Accordingly, dismissed the writ petition.

The decision of the High Court has been impugned before us.

11)The learned counsel for the appellant contended that the detaining

authority based on single and solitary instance could not have passed an

order of detention under the Act. It is submitted, that, for the purpose of

passing detention order, the detaining authority need to show that the detenu

5 is likely to resume the prejudicial activity if not detained. It is further

contended that there was no compelling necessity to pass an order of

preventive detention when the passport of the appellant is retained by the

custom authorities. In aid of his submission, the learned counsel has relied

on the observations made by this Court in the case of Attorney General for

India and Ors. vs. Amratlal Prajivandas and Others, [(1994) 5 SCC 54],

wherein this Court has observed, that, in short, the principle appears to be,

"Though ordinarily one act may not be held sufficient to sustain an order of

detention, one act may sustain an order of detention if the act is of such a

nature as to indicate that it is an organised act or a manifestation of

organised activity. The gravity and nature of the act is also relevant. The

test is whether the act is such that it gives rise to an inference that the

person would continue to indulge in similar prejudicial activity. That is the

reason why single acts of wagon-breaking, theft of signal material, theft of

telegraph copper wires in huge quantity and removal of railway fish-plates

were held sufficient. Similarly, where the person tried to export huge

amount of Indian currency to a foreign country in a planned and

premeditated manner, it was held that such single act warrants an inference

that he will repeat his activity in future and, therefore, his detention is

necessary to prevent him from indulging in such prejudicial activity. If one

6 looks at the acts the COFEPOSA is designed to prevent, they are all either

acts of smuggling or of foreign exchange manipulation. These acts are

indulged in by persons, who act in concert with other persons and quite

often such activity has international ramifications. These acts are preceded

by a good amount of planning and organisation. They are not like ordinary

law and order crimes. If, however, in any given case a single act is found to

be not sufficient to sustain the order of detention that may well be quashed

but it cannot be stated as a principle that one single act cannot constitute the

basis for detention. On the contrary, it does. In other words, it is not

necessary that there should be multiplicity of grounds for making or

sustaining an order of detention.

12)Reference is also made to the decision of this Court in the case of

Chowdarapu Raghunandan vs. State of Tamil Nadu (2002) 3 SCC 754,

wherein it is stated, "that the past conduct of the petitioner is that he is an

engineering graduate and at the relevant time he was the Managing Director

of a public limited company. There is no other allegation that he was

involved in any other anti-social activities. The only allegation is that he

visited Singapore twice as a "tourist". Admittedly, the petitioner has filed

bail application in a criminal prosecution for the alleged offence narrating

7 the fact that his so-called statement was not voluntary and was recorded

under coercion. The baggages were not belonging to him and there were no

tags on the same so as to connect him with the said baggages and the crime.

At the time of hearing of this matter also, it is admitted that the baggages

were without any tags. It is also an admitted fact that there is nothing on

record to hold that the petitioner was involved in any smuggling activity.

However, the learned Additional Solicitor-General submitted that in the

statement recorded by the Customs Department the petitioner had admitted

that previously he had visited Singapore twice as a "tourist", and, therefore,

it can be inferred that the petitioner might have indulged and was likely to

indulge in such activities. This submission is far-fetched and without any

foundation. From the fact that a person had visited Singapore twice earlier

as a "tourist", inference cannot be drawn that he was involved in smuggling

activities or is likely to indulge in such activities in future. Hence, from the

facts stated above it is totally unreasonable to arrive at a prognosis that the

petitioner is likely to indulge in any such prejudicial activities".

13)This Court in the case of KundanBhai Dhulabhai Shaikh Etc. vs. District

Magistrate, Ahmedabad and Ors. Etc. (1996) 3 SCC 194, has observed that

Black marketing is a social evil. Persons found guilty of economic offences

8 have to be dealt with a firm hand, but when it comes to fundamental rights

under the Constitution, this Court, irrespective of enormity and gravity of

allegations made against the detenu, has to intervene as was indicated in

Mahesh Kumar Chauhan's case, [(1990) 3 SCC148] and in an earlier decision

in Prabhu Dayal Deorah v. Distt. Magistrate, [(1974) 1 SCC 103] in which it

was observed that the gravity of the evil to the community resulting from

anti-social activities cannot furnish sufficient reason for invading the

personal liberty of a citizen, except in accordance with the procedure

established by law particularly as normal penal laws would still be available

for being invoked rather than keeping a person in detention without trial.

14)The counsel for the appellant also relies on the decision of this court in

the case of Rajesh Gulati v. Government of NCT of Delhi and another

[(2002) 7 SCC 129], wherein it is held, that, once the customs department

has seized the passport of the detenu, the possibility of detenu moving

outside the country for the purpose of smuggling was effectively foreclosed,

and therefore, there could be no question of detaining the detenu to prevent

him from smuggling goods into India.

15)The learned counsel for the State tried to justify the order passed by the

detaining authority.

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16)The two issues that require to be decided are:-

(i) Whether the respondents can prove satisfactorily that there is propensity and potentiality of the appellant to engage in smuggling activities in the future, if set free?

(ii) Whether the impounding of the passport of the appellant so as to prevent him from leaving the country will suffice in satisfying the object sought to be achieved by passing the detention order?

17)Preventive detention is not punitive but a precautionary measure. The

object is not to punish a person, but to intercept or prevent him from doing

any illegal activity. Its purpose is to prevent a person from indulging in

activities, such as smuggling and such other anti social activities as

provided under the preventive detention law. This court in the case of Union

of India v. Paul Manickam (AIR 2003 SC 4622), stated the following:-

"Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced on the materials available and placed before it that such detention is necessary in order to prevent the person detained from acting in a matter prejudicial to certain objects which are specified by the law. The action of Executive in detaining a person

1 being only precautionary, the matter has necessarily to be left to the discretion of the Executive Authority."

18)Preventive detention essentially deals with the curtailment of a person's

liberty and is therefore a potential weapon for human rights abuses. In the

US, some state statutes authorize preventative detention, where there is

clear and convincing evidence that the defendant is a danger to another

person or to the community, and that no condition or combination of

conditions of pretrial release can reasonably protect against that danger. It

has been noted that pretrial detention is not to be employed as a device to

punish a defendant before guilt has been determined, nor to express outrage

at a defendant's evident wrongdoing, but its sole purpose is to ensure public

safety and the defendant's future appearance in court when the government

proves that conditions of release cannot achieve those goals. In the UK,

preventive detention is used more or less employed in counter-terrorism

measures. In India, the Preventive Detention Act was passed by Parliament

in 1950. After the expiry of this Act in 1969, the Maintenance of Internal

Security Act (MISA) was enacted in 1971, followed by its economic

adjunct the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act in 1974 and the Terrorism and Disruptive

1 Activities (Prevention) Act (TADA) in 1985. Though MISA and TADA

have been repealed, COFEPOSA continues to be operative along with other

similar laws such as the National Security Act 1980, the Prevention of

Black marketing and Maintenance of Essential Commodities Act 1980.

19) COFEPOSA is enacted to curb the thriving smuggling business of

foreign currencies, antiques and other valuable items from India to its

neighbouring countries. From the objects and reasons of the Act, it is

clear that the purpose of the Act is to prevent violation of foreign

exchange regulations or smuggling activities which are having

increasingly deleterious effect on the national economy and thereby

serious effect on the security of the State.

20)Section 3(1) of COFEPOSA reads:-

"3. Power to make orders detaining certain persons. (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange

1 or with a view to preventing him from- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained."

21) The Act contemplates two situations for exercise of the power of

preventive detention, viz., to prevent violation of foreign exchange

regulations and to prevent smuggling activities. The justification for

passing the order of detention is suspicion or reasonable probability of

the person sought to be detained to prevent him in carrying on smuggling

activities in the future. In other words, what needs to be proved is the

potentiality or propensity of the person to engage in future prejudicial

activities.

22)It is a well established principle of law that even a single incident is

enough to prove the propensity and potentiality of the detenue so as to

justify the order of preventive detention as laid down by this court in the

case of Pooja Batra v. Union of India, [(2009) 5 SCC 296] :-

"As already discussed, even based on one incident the Detaining Authority is free to take appropriate

1 action including detaining him under COFEPOSA Act. The Detaining Authority has referred to the violation in respect of importable goods covered under Bill of Entry No. 589144 dated 25.04.2007. In an appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activities, however, for that purpose antecedents and nature of the activities already carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent, it was necessary to detain him."

This court further observed:-

"If there is no adequate material for arriving at such a conclusion based on solitary incident the Court is required and is bound to protect him in view of the personal liberty which is guaranteed under the Constitution of India. Further subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the detenue would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future. In other words, while a single act of smuggling can also constitute the basis for issuing an order of detention under the COFEPOSA Act, highest standards of proof are required to exist. In the absence of any specific and authenticated material to indicate that he had the propensity and potentiality to continue to indulge in such activities

1 in future, the mere fact that on one occasion person smuggled goods into the country would not constitute a legitimate basis for detaining him under the COFEPOSA Act. This can be gathered from the past or future activities of the said person."

23)In the case of Gurdev Singh v. Union of India, [(2002) 1 SCC 545] this

court held:-

"Whether the detention order suffers from non- application of mind by the detaining authority is not a matter to be examined according to any straight-jacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenue, the materials collected in supported of such allegations, the propensity and potentiality of the detenue in indulging in such activities, etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, the Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the competent authority."

24)What emerges from the abovementioned cases is that, even a single

solitary act can prove the propensity and potentiality of the detenu to

carry on with similar smuggling activities in future. The mere fact that

on one occasion person smuggled goods into the country may constitute

1 a legitimate basis for detaining a person under COFEPOSA. For this

purpose, the antecedents of the person, facts and circumstances of the

case needs to be taken into consideration. In the present case, the

respondents seek to rely extensively on the confession statement made by

the detenu, where he had admitted to be carrying the foreign currency in

return for monetary consideration. The respondents contend that the

confession made by the appellant proves that, the appellant is a part of a

smuggling ring and hence his detention is warranted under the provisions

of COFEPOSA. This submission of the respondent's learned counsel, in

our view, has no merit. In the statement made before the customs

authorities, the appellant has only narrated his antecedents, the nature of

business carried on by him while he was in Singapore and how he was

induced to carry the foreign currency by a person who has business

dealings in Singapore. In the statement so made, he has not even

suggested that he had indulged himself in foreign currency smuggling

activities earlier. It is not the case of the respondents that if he is not

detained, he would indulge himself in foreign currency smuggling

activities and it is their specific case that he may abet the smuggling

activity. In matters of personal liberty, the standard of proof needs to be

high to justify an order of preventive detention. In our considered view,

1 there were no compelling reasons for the detaining authority to pass the

impugned order. Therefore, the order of detention is unsustainable.

25)Moving over to the second issue, it is not in doubt that the appellant

carried foreign currency in person which is in contravention of the

amount stated in Regulation 5 of Foreign Exchange Management (Export

and Import of Currency) Regulations, 2000. The issue in question is,

whether, the act of the appellant justifies a preventive detention order to

be passed against him. The detention order was passed under Section

3(1)(i) of COFEPOSA. The sub-section authorizes the Central

Government or the State Government to pass an order of preventive

detention to prevent the person from carrying on with the smuggling

activities. The reasons stated in the order is that, the appellant is detained

as a remand prisoner and thereafter he would be released on bail.

Therefore according to respondent no.1, there is possibility that he will

indulge in illegal activity and smuggling of goods when out on bail. Para

6 of the detention order goes on to state:-

"6. The State Government are also satisfied that on the facts and material mentioned above, if you are released on bail, you will indulge in such activities again and that further recourse to normal criminal law would not have the desired effect of effectively preventing you from indulging in such

1 activities though your passport has been submitted in the court. The State Government, therefore, considers that, it is necessary to detain you under Section 3(1)(i) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from indulging in the smuggling of goods in future."

26) During the course of the hearing, the learned counsel appearing for the

State, submits that the mere retention of the passport of the detenu, will

not be enough, as the preventive detention order has been passed so as to

prevent him from abetting the smuggling of goods by staying in the

country. This was argued before the High Court. The High Court

accepted this as a satisfactory answer to justify the passing of a

preventive detention order. In the counter affidavit filed on behalf of

respondent no.1 and 3 in para 3 it is stated:-

"It is accepted by the detenue himself in the representation that he cannot even survive in India. Therefore for the survival, till he goes out of this country, there is all likelihood for him to indulge in such activities indirectly and illegally without the passport and can also abet in such activities. Hence, the averments made in these grounds are unsustainable and untenable and the detention order passed is valid in law."

27)In our view, if that be the position, the order of preventive detention

could have been passed under Section 3(1) (ii) of COFEPOSA, as it

1 authorizes the State Government to pass a preventive detention order to

preventing him from abetting smuggling of goods. The argument

advanced by the respondents is devoid of any logic. In the present case,

the detention order is passed under Section 3(1)(i) of COFEPOSA. The

customs department has retained the passport of the detenu. The

likelihood of the appellant indulging in smuggling activities was

effectively foreclosed. As observed by this Court in Rajesh Gulati's

case, that the contention that despite the absence of a passport, the

appellant could or would be able to continue his activities is based on no

material but was a piece of pure speculation.

28)The counsel appearing for the State relied on the observations made by

this court in the case of Abdul Sathar Ibrahim Malik v. Union of India

and others with Ibrahim Shareef M. Madhafushi v. Union of India and

Others, [(1992) 1 SCC 1] with particular reference to para 4 of the

judgment. A careful perusal of the aforesaid paragraph reveals that the

court did not answer the question of the passport being impounded. In

the said case, the detention order was based on possession of 50 gold

biscuits of foreign origin being found in person of the detenu. It was also

found that the detenu was a part of a larger international smuggling ring

and therefore court sustained the order of detention passed by the

1 detailing authority. This court did not go into the issue as to whether the

impounding of the passport of the detenu was enough to curb the

potentiality of smuggling and to render the order of preventive detention

unjustified.

29)The other case on which reliance was placed by the learned counsel

appearing for the State, was the case of Sitthi Zuraina Begum v. Union of

India and Others, [(2002) 10 SCC 448]. In our view, the findings and

conclusions reached in this case would not assist contention of the

respondents, as the court held in that case that the impounding of the

passport of the detenu effectively foreclosed the chances of the detenu

engaging in smuggling activities in the future.

30)In our considered view, the submission of the learned counsel for the

appellant requires to be accepted. In the instant case as the facts reveal,

that, there was no pressing need to curtail the liberty of a person by

passing a preventive detention order. Foreign currency cannot be

smuggled as the person cannot move out of the country on account of his

passport being impounded. Merely because a person cannot otherwise

survive in the country, is no basis to conclude that a person will again

resort to smuggling activities, or abetting such activities by staying in the

2 country. There is higher standard of proof required in these

circumstances involving the life and liberty of a person. The material

provided by the respondents is not enough to justify the curtailment of

the liberty of the appellant under an order of preventive detention in the

fact and circumstances of the case.

31)In view of the foregoing discussion, we, after having considered the

submissions of the learned counsel on both sides, by our order dated

28.10.2009, had directed the release of the detenu and have now recorded

the reasons therefor.

.......................................J. [ DALVEER BHANDARI ]

.......................................J. [ H.L. DATTU ]

New Delhi, November 13, 2009.

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