2009 (11) TMI 881 - SC - Customs

Whether 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 be sustained? 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? 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?

Summary

Issues Involved:
1. Propensity and potentiality of the appellant to engage in future smuggling activities.
2. Sufficiency of impounding the appellant's passport to prevent smuggling activities.

Issue-wise Detailed Analysis:

1. Propensity and Potentiality of the Appellant to Engage in Future Smuggling Activities:

The appellant, a Polish citizen with business in Singapore, was detained at Chennai International Airport with a significant amount of foreign currency, leading to his arrest and the subsequent preventive detention order under Section 3(1)(i) of COFEPOSA. The High Court upheld the detention, citing the potential for future smuggling based on a single incident and the appellant's admission of smuggling for monetary gain. The High Court referenced the case of Pooja Batra v. Union of India, which established that even a single act could indicate a propensity for future smuggling activities.

The appellant argued that the detention order was based on a solitary incident without any past antecedents or evidence of potential future smuggling. The appellant's counsel cited cases like Attorney General for India vs. Amratlal Prajivandas, Chowdarapu Raghunandan vs. State of Tamil Nadu, and KundanBhai Dhulabhai Shaikh vs. District Magistrate, Ahmedabad, emphasizing that a single act, unless part of an organized activity, should not warrant preventive detention. The court agreed that the standard of proof for preventive detention is high and found no compelling reasons for the detention order, as the appellant's confession did not indicate past involvement in smuggling activities.

2. Sufficiency of Impounding the Appellant's Passport to Prevent Smuggling Activities:

The appellant's passport was impounded, preventing him from leaving the country. The High Court dismissed the appellant's argument that this measure was sufficient to prevent future smuggling, suggesting he could still abet smuggling activities within India. The respondents argued that the appellant's need to survive in India could lead him to engage in illegal activities, justifying the preventive detention.

The Supreme Court, however, found this argument speculative and unsupported by material evidence. Citing cases like Rajesh Gulati v. Government of NCT of Delhi, the court noted that impounding the passport effectively prevents the appellant from smuggling foreign currency out of the country. The court concluded that the preventive detention order under Section 3(1)(i) was unnecessary, as the appellant could not engage in smuggling without a passport. The court emphasized the need for a higher standard of proof in matters of personal liberty and found the respondents' evidence insufficient to justify the detention.

Conclusion:

The Supreme Court found that the preventive detention order lacked compelling reasons and sufficient evidence of the appellant's propensity for future smuggling. The impounding of the passport was deemed adequate to prevent smuggling activities, leading to the release of the appellant. The court underscored the importance of high standards of proof in curtailing personal liberty under preventive detention laws.