Moulana Shamshunnisa & Etc vs Additional Chief Sec.& Ors

SMT. MOULANA SHAMSHUNNISA & ETC. ...APPELLANTS

Versus

ADDITIONAL CHIEF SECRETARY & ORS. .....RESPONDENTS

O R D E R

HARJIT SINGH BEDI, J.

1. These appeals arise out of the following facts:

The son of the appellant, Nazhar Ahmed by name, was detained

under the provisions of the Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by the order of

the Additional Chief Secretary to the Government, Home Department

dated 20th January, 2010. As per the case put up against the detenu, he

had been arrested at the Bangalore International Airport after he had

been found in possession of 4.35 kgs. of Gold Jewellery which he had not

declared to the Customs. He moved an application for bail which was

rejected by the Special Court for Economic Offences. He thereafter filed

an appeal before the City Civil and Sessions Judge, Bangalore (which

was numbered as Criminal Miscellaneous No.4858 of 2009) which was

ultimately allowed and bail was granted to him on the 5th December,

Crl. Appeal Nos.2391-

2009. He was 2392/2010 however detained 2

under the COFEPOSA on the 24th January, 2010. He was thereafter

produced before the Advisory Board and the Board too confirmed his

detention for a period of one year from the date of his detention. A writ

petition was thereafter filed by the petitioner impugning the detention of

her son. Before the High Court, several submissions were made :

(i) that the advisory board did not send a report within 11

weeks from the date of the order of detention as required

by Section 8(c) of the COFEPOSA ;

(ii) that in view of the seizure of the passport of the detenu

by the respondents, the apprehension of the detaining

authority that the petitioner's son would continue his

smuggling activities could not be accepted as it would not

have been possible for him to leave India without a

passport.

In reply, the Government's stand was that the report of the

Advisory Board has been submitted within time and that the Additional

Chief Secretary had made the detention observing that there were clear

chances that the detenu would continue his smuggling activities despite

the seizure of his passport as the smuggling activities could continue

even within India after he had been released on bail.

Crl. Appeal Nos.2391-

2. The High Court 2392/2010 examined both the 3

contentions and held that there was no violation of Section 8 (c) of the

COFEPOSA and insofar as the second contention was concerned, the

apprehension that if enlarged on bail the detenu could continue with his

smuggling activities without even travelling abroad was a possibility, and

as such, the detention order was justified. The writ petitions were,

accordingly, dismissed.

3. Mr. K.K. Mani, the learned counsel for the appellants has raised

substantially one plea before us. He has pointed out that this court had

upheld the vires of several preventive detention statutes primarily on the

ground that adequate safeguards for the protection of the rights of a

detenu had been provided while noticing that smuggling activities by

individuals was a matter of deep concern to India and its economy, but if

the procedural safeguards were in any manner not observed, the

detention order would fail. The learned counsel has in this connection

relied on the observations made by this Court in Smt. Icchu Devi

Choraria Vs. Union of India & Ors. [1980 (4) SCC 531] and

Kamleshkumar Iswardas Patel Vs. Union of India & Ors. 1995 (4)

SCC 51]. He has pointed out that in the light of the observations in

these two judgments, if the detaining authority was oblivious of certain

significant facts with regard to the detention that itself was a ground for

the quashing of a detention order. In this background, he has submitted

that the observations of the detaining authority and the High Court

Crl. Appeal Nos.2391-

therefore, that in case 2392/2010

the detenu was 4

released from jail, he could continue with his smuggling activities within

India, notwithstanding that he could not travel abroad as his passport

had been seized, was not acceptable as there was no material to justify

this conclusion. In this connection, the learned counsel has placed

reliance on Rajesh Gulati Vs. Govt. of NCT of Delhi & Anr. [2002 (7)

SCC 129] and Gimik Piotr Vs. State of Tamil Nadu and Ors. [2010

(1) SCC 609].

4. In Rajesh Gulati's case (supra), the question that came to be

canvassed on behalf of the detenu was that as his passport continued to

be in the possession of the customs authorities, there was no question of

the appellant travelling abroad or indulging in any smuggling activity.

This plea was accepted by this court by observing that it was not the

case of the detaining authority at any stage that the detenu would be

able to continue with his smuggling activities within India, though he

could not go abroad his passport having been seized. It was observed

thus :

"15. xxxxxxxxxxxx

xxxxxxxxxxxxxxxx

The conclusion that despite the absence of his

passport the appellant could or would be able to

continue his activities is based on no material but was

a piece of pure speculation on the part of the detaining

authority. These findings are sufficient to invalidate

the impugned detention order and it is not necessary

to consider the other issues raised by the appellant."

Crl. Appeal Nos.2391-

This opinion 2392/2010 has been further 5

fortified by this court in Gimik Piotr's case (supra). In para 32, it has

been held as under :

"32. In the present case, the detention order was

passed under Section 3(1) (i) of COFEPOSA. The

Customs Department has retained the passport of

detenu. The likelihood of the appellant indulging in

smuggling activities was effectively foreclosed. As

observed by this Court in Rajesh Gulati 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."

And again in para 35 ;

"35. 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

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 facts and circumstances of the case."

5. The learned counsel for the respondents has, however, contended

that the respondent had been intercepted on specific intelligence and he

had been arrested twice earlier on similar charges. We are of the opinion

Crl. Appeal Nos.2391-

that this fact is 2392/2010 immaterial insofar as 6

the present detention order is concerned.

6. We, accordingly, allow these appeals and quash the detention

order dated 24th January, 2010.

........................................J.

(HARJIT SINGH BEDI)

........................................J.

(CHANDRAMAULI KR. PRASAD)

DECEMBER 15, 2010,

NEW DELHI.