2010 (12) TMI 1221 - SC - Customs

Detention of son of appellant - smuggling of gold - violation of Section 8 (c) of the COFEPOSA or not? - it was not the case of the detaining authority at any stage that the detenu would be able to continue with his smuggling activities within India, though he could not go abroad his passport having been seized - appeal allowed.

Summary

Issues:
Detention under COFEPOSA, Violation of Section 8(c) of COFEPOSA, Justification of detention order based on apprehension of continued smuggling activities, Observations of detaining authority and High Court, Precedents related to detention orders, Seizure of passport and its impact on smuggling activities, Material basis for detention order, Specific intelligence and past arrests.

Detention under COFEPOSA:
The case involved the detention of an individual under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) due to possession of undeclared gold jewelry. The detenu was initially granted bail but later detained under COFEPOSA.

Violation of Section 8(c) of COFEPOSA:
The petitioner challenged the detention, alleging that the Advisory Board did not submit a report within the required timeframe. However, the High Court ruled that there was no violation of Section 8(c) of COFEPOSA.

Justification of detention order based on apprehension of continued smuggling activities:
The detaining authority justified the detention order by expressing concerns that the detenu could continue smuggling activities within India even without traveling abroad. The High Court upheld this justification, leading to the dismissal of the writ petitions.

Observations of detaining authority and High Court:
The detaining authority and the High Court believed that the detenu could engage in smuggling activities within India despite the seizure of his passport, justifying the detention order based on this apprehension.

Precedents related to detention orders:
The appellant's counsel cited previous judgments emphasizing the need for procedural safeguards in preventive detention cases. They argued that the detaining authority's lack of awareness of significant facts related to the detention could be grounds for quashing the order.

Seizure of passport and its impact on smuggling activities:
Citing precedents, it was argued that the detenu's inability to travel abroad due to the seizure of his passport should have precluded the assumption that he could engage in smuggling activities within India. The lack of material to support this assumption was highlighted.

Material basis for detention order:
The court emphasized that there should be a material basis to justify a preventive detention order, especially when it involves curtailing an individual's liberty. The lack of substantial evidence to support the detention in this case led to its quashing.

Specific intelligence and past arrests:
The respondent's past arrests on similar charges were deemed immaterial in the context of the present detention order. The focus remained on the specific circumstances surrounding the current detention.

In conclusion, the Supreme Court allowed the appeals and quashed the detention order dated 24th January, 2010, based on the lack of substantial evidence to support the apprehension of continued smuggling activities within India by the detenu despite the seizure of his passport.