TMI Blog2009 (11) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... We now proceed to give reasons for allowing the appeal and for setting aside the decision of the High Court. 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 ₹ 30,000/-, adding to ₹ 40,72,878/- pasted to six sheaves of newspapers. The currency was seized under a Mahazar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant 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 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 propensit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications. 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 the fact that his so-called statement was not voluntary and was recorded under coer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 potentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond 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 preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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