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Criminal Appeal No. 2121 of 2009, Arising out of S.L.P.(Crl.) No. 6201 of 2009. Case: Gimik Piotr Vs State of Tamil Nadu and Ors.. Supreme Court (India)

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Case NumberCriminal Appeal No. 2121 of 2009, Arising out of S.L.P.(Crl.) No. 6201 of 2009
CounselFor Appellant: K.K. Mani and Ankit Swarup, Advs. and For Respondents: R. Shanmugasundram, Sr. Adv., Promila and S. Thananjayan, Advs.
JudgesDalveer Bhandari and H.L. Dattu, JJ.
IssueConservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1); Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 - Regulation 5; Customs Act, 1962; Maintenance of Internal Security Act; Terrorism and Disruptive Activities (Prevention) Act, 1985; National Security Act, 1980; ...
Citation2010 (1) ACR 75 (SC), AIR 2010 SC 924, 2010 (1) ALT 368 (Cri), 2010 (1) ALT 368 (Cri), 2010 CriLJ 877, JT 2009 (14) SC 273, 2009 (13) SCALE 706, 2010 (1) SCC 609, 2009 (15) SCR 889
Judgement DateNovember 13, 2009
CourtSupreme Court (India)

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.

  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 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.

  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 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 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...

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