2002 (8) TMI 832 - SC - Customs

Detention pursuant to an order passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Held that - According to the detaining authority the prime mover for the smuggling activity was the proprietor of M/s. B.D. Denim. The appellant at the worst was a pawn in the hands of another. The likelihood of the appellant indulging in smuggling activities by the appellant was in any case effectively foreclosed by the retention of his passport by the customs department. The detaining authority noted that the appellant s passport was with the customs department and yet he said but you are likely to travel clandestinely for the purpose of smuggling . Now none of the instances of smuggling by the appellant as stated in the impugned detention order describe the appellant as having travelled without a passport for the purpose of smuggling. 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. The appeal is accordingly allowed and the decision of the High Court is set aside.

Summary

Issues:
Challenge to detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Detailed Analysis:

The appellant contested his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, following an order dated 28th September 2001. The detention stemmed from his arrest on 5th July 2001 at the Indira Gandhi International Airport for allegedly smuggling 40 mobile phones concealed in a microwave oven, valued at Rs. 5,16,000. The appellant, an employee of M/s B.D. Denim, admitted to making multiple trips to Dubai at the behest of the company's proprietor, bringing household items, including mobile phones, into India as instructed. However, the proprietor denied any association with the appellant or knowledge of his trips.

The appellant, after being remanded to judicial custody, retracted his initial statement alleging coercion by Customs officers. Despite multiple bail applications being rejected, a complaint was lodged against him under the Customs Act, 1962. The impugned detention order was served on him while in jail, prompting challenges through representations and a writ application before the High Court, which was dismissed.

The detaining authority's decision was based on the belief that the appellant, if released on bail, would engage in smuggling activities due to his past actions. However, the Supreme Court found fault with this reasoning. The Court emphasized that preventive detention aims to avert future offenses, not punish past conduct. The detaining authority's satisfaction must rely on objective data, not subjective beliefs.

The detaining authority's conclusion that the appellant would likely secure bail and resume smuggling lacked a factual basis. Even if the appellant obtained bail, there was no evidence to suggest he would continue smuggling activities. The detaining authority's speculation about the appellant's potential clandestine travel for smuggling, despite his passport being held by Customs, lacked substance. Notably, the detaining authority acknowledged the proprietor's pivotal role in the smuggling operation, portraying the appellant as a mere accomplice.

The Supreme Court held that the detaining authority's reasoning was flawed and lacked a legal basis, rendering the detention order invalid. Consequently, the High Court's decision was overturned, the detention order was quashed, and the appellant was directed to be released immediately. The Court stressed the importance of adherence to legal procedures in preventive detention cases to safeguard individual rights.