GIMIKPIOTR v. STATE OF TAMIL NADU AND ANR

Citation: [2009] 15 S.C.R. 889

Court: Supreme Court of India

Bench: DALVEER BHANDARI, H.L. DATTU

Case summary

GIMIKPIOTR v. STATE OF TAMIL NADU AND ANR.pdf

Judgment text

[2009] 15 (ADDL. ) S. C. R. 889 GIMIKPIOTR v. STATE OF TAMIL NADU AND ANR. (Criminal Appeal No. 2121 of 20Q9) NOVEMBER 13, 2009 [DALVEER BHANDARI AND H. L. DATTU, JJ. ] Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - s. 3 (1)(i) - Detenu trying to -"+ smuggle foreign currency outside the country - Detention order uls. 3 (1)(i) - Passport also impounded- Challenge to - Held: In matters ofpersonal liberty, standard ofproof needs to be high to justify order of preventive detention - Material provided by State not enough to justify curtailment of liberty o( appellant under order of preventive detention - Foreign currency cannot be smuggled as person cannot move out of the country on account of his passport being impounded - ~ Thus, detention order not sustainable - Order of High Court .. set aside. Appellant-polish citizen, tried to smuggle foreign \ I currency outside the country. The said currency was seized. The detention order was passed u/s.

3(1 )(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to prevent him· from smuggling goods in future. His passport was also )- impounded. Appellant challenged the detention order. High Court upheld the detention order. The question which arose for consideration in this appeal are whether the . respondent-State can prove satisfactorily that there is propensity and potentiality ofthe appellant-detenu to engage. in smuggling activities in the future, if set free; and 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. Allowing the appeal, the Court HELD: 1. 1. Conservation of Foreign Exchange and ~ Prevention of Smuggling Activities Act, 1974 is enacted to curb the thriving smuggling busii:iess of foreign currencies, antiques and other valuable items from India to its neighbouring countries.

From the objects and reasons of the Act, 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. 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. The potentiality or propensity of the person to engage in future prejudicial activities needs to be proved. (Paras 19 and 21] (899-F-G; p 900-D-E] Union of India vs. Paul Manickam AIR 2003 SC 4622 - .... referred to. ... 1. 2. Even a single solitary act can prove the propensity and potentiality of the detenu to carry on with similar r- 'Ismuggling activities in future. The mere fact that on one occasion person smuggled goods into the country may constitute 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 instant 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. It cannot be said 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. In the statement made before the customs authorities, the appellant has only _( ~arrated 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 8 and it is their specific case that he may abet the smuggling activity. [Para 24] (902-C-G] Pooja Batra vs. Union of India (2009) 5 SCC 296; Gurdev Singh v. Union of India (2002) 1 SCC 545, relied on. 1. 3. During the course of the hearing, ·the counsel for the State, submitted 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.

If that be the position, the order of preventive detention could have been passed u/s~ 3(1) (ii) of COFEPOSA, as it 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 instant case, the detention order is passed u/ s. 3(1)(i) of COFEPOSA. The customs department has retained the passport of the detenu. The likelihood of the ) app~llant indulging in smuggling activities was effectively foreclosed. [Paras 26 and 27] (903-G-H; 904-A-C-E] Ibrahim Shareef M. Madhafushi vs. Union of India and Ors. (1992) 1 SCC 1, referred to. Sitthi Zuraina Begum-vs-: Union of/ndia and Ors. (2002) 10 SCC 448, Distinguished. .. -·1:4. There was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as 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 8 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. Thus, reasons are recorded for directing the release of the detenu. [Paras 30 and 31] (905-C-G] Attorney General for India &Ors. vs. Amratlal Prajivandas & Ors. 1994 (5) SCC 54; Chowdarapu Raghunandan vs. State of Tamil Nadu 2002 (3) SCC 754; KundanBhai Dhulabhai Shaikh Etc. vs. District Magistrate, Ahmedabad & Ors. 1996 (3) SCC 194; Mahesh Kumar Chauhan@ Banti vs. ·union of o. - lndai 1990 (3) SCC 148; Prabhu Dayal Deorah vs. Distt. Magistrate 1974 (1) SCC 103; Rajesh Gu/ti vs.

Government of Delhi and anr. , referred to. Case Law Reference : 1994 (5) SCC 54 Referred to. Para 11 2002 (3) SCC 754 Referred to. Para 12 1996 (3) SCC 194 Referred to. Para 13 1990 (3) SCC 148 Referred to. Para 13 1974 (4) SCC 103 Referred to. Para 13 -r 2002 (7) SCC 129 Referre1' to. Para 14 AIR 2003 SC 4622 Referrei. ld to. Para 17 (2009) 5 SCC 296 Relied on. Para 22 (2002) . 1 SCC 545 Relied on. Para 23 (1992) 1 SCC 1 Referred to. Para 28 (2002) 10 sec 448 _. ,. Distinguished. Para 29 ' I CRIMINAL APPELsATE JURISDICTION : Criminal Appeal No. 2121 of 2009. ~ \ Fro"m the Judgment & Order dated 15. 07. 2009 of the High Court of Judicature at Madras in HCP No. 1874 of 2008. K. K. Mani, Ankit Swarup, for the Appellant. R. Shanmugasundram, Promila, S. Thananjayn for the Respondents. The Judgment of the Court was delivered by 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. I 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. r- However in the Chennai International Airport, he was intercepted r:; 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 Reg;Jlation 5 of the Foreign Exchange Management (Export and Import ofCurrency) Regulations, 2000, fortrying to smuggle foreign currency outside the co'_'. ntry. The detenu was produced b~fore 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 ChiefMetropolitan ""'· 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 s~me was rejected as well. 7. The Government of Tamil N~du (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 I.. 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 alawyer 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 necessary in order to prevent the person detained from A acting in a matter prejudicial to certain objects which are specified by the law. The action of Executive in detaining a person being only precautionary, the matter has necessarily :- Jt to be left to the discretion of the Executive Authority. " 18. Preventive detention essentially. deals with the A 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 0 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 I 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 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 offoreign currencies, antiques and other valuable items from India to its neighbouring countries. From the objects and reasons of the Act, it is clear that t_he purpose of the Act i's 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 COFEPOSAreads:- "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 belowthe 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 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 1 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 vs. Union ofIndia, [(2009) 5 sec 2961 :- "As·already discussed, even based on one incident the ! 1 Detaining. Authority is free to take appropriate action including detaining him under COFEPOSA Act. The -~ ii ' 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 a·ppropriate 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. " t This court further observed:- -4 _,,. "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 autti. ority under the law is not absolute and should not be unreasonable. In the matter of preventive detention, what is required to beseen 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 s-pecific -I and authenticated material to indicate that he had the J 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 j 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 vs. Union oflndia, [(2002) 1 sec 545] this court held:- "'. ,Ji.

"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 acti"'. ities alleged against the detenue, "-> ~ 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 curtaii 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 smuggnng 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 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. N. J. Appeal allowed. ~ ~