Piotr Vs. State of Tamil Nadu & Ors.  INSC 1730 (13 November 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO 2121
OF 2009 (Arising out of S.L.P.(Crl.) No.6201 of 2009) Gimik Piotr
..............Appellant Versus State of Tamil Nadu & Ors.
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.
We now proceed to give reasons for allowing the appeal and for
setting aside the decision of the High Court.
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
The appellant-detenu is a Polish citizen and having business in
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.
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.
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
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.
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.
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.
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.
decision of the High Court has been impugned before us.
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.
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.
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.
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
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.
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.
The learned counsel for the State tried to justify the order
passed by the detaining authority.
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.
action of Executive in detaining a person 1 being only precautionary, the
matter has necessarily to be left to the discretion of the Executive
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.
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
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."
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.
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.
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."
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."
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 strait-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
matter is left to the subjective satisfaction of the competent authority."
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.
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
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."
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.
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.
the averments made in these grounds are unsustainable and untenable and the
detention order passed is valid in law."
In our view, if that is 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.
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
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.
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.
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 there for.
.......................................J. [ DALVEER BHANDARI ]
.......................................J. [ H.L. DATTU ]
November 13, 2009.