2013 (2) TMI 201 - HC - FEMA

Order of preventive detention - writ to release of the detenue by quashing detention orders - intelligence unit contraband fake noteswere recovered from the baggage carried by the detenue - Held that - When a passport of the detenu was retained with the Customs department, the likelihood of the detenu indulging in the smuggling activities was foreclosed. Impounding the passport of the detenu was enough to curb the potentiality of the smuggling, and therefore there was no justification to pass order of preventive detention when there was no chance of the detenu travelling to foreign country without passport. As decided in Rekha vs. State of Tamil Nadu 2011 (4) TMI 1217 - SUPREME COURT OF INDIA if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. Principle emanating from the frame work of the Constitution of India assuring personal liberty and giving fundamental rights to each citizen of India is that the order of the preventive detention being exceptional measure by way of social defence ought to be used with great deal of care and circumspection. Applying the principle to the case on hand it is concluded that the impugned order of preventive detention passed in the present case is faulty, caution less and unsustainable Preventive detention orders quashed.

Summary

Issues:
Challenge to detention order based on delay and malafide intentions; Violation of constitutional safeguards; Allegations of non-application of mind by the authority issuing the detention order; Interpretation of preventive detention laws; Consideration of the relevance of retaining a passport in preventing smuggling activities.

Detailed Analysis:
1. The Writ Petitioner challenged the detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Act, alleging malafide intentions and delay in issuing the order. The detenue was apprehended with contraband fake notes, and it was argued that the detenue's innocence was explained in statements recorded by the investigating agency. The petitioner contended that the authority failed to consider vital aspects before issuing the detention order, violating constitutional safeguards and not applying real subjective satisfaction to base the order.

2. The detenue's counsel argued that retaining the detenue's passport with the Customs department foreclosed the likelihood of him engaging in smuggling activities. Citing a previous ruling, it was emphasized that impounding the passport was sufficient to prevent smuggling, and thus, the preventive detention order was unjustified as there was no chance of the detenue traveling without a passport. The detenue's passport was not returned, making the detention order solely based on one section of the COFEPOSA Act.

3. Referring to a Supreme Court decision, the High Court highlighted the exceptional nature of preventive detention and the need to confine such powers within narrow limits to safeguard personal liberty. Applying this principle, the court concluded that the impugned preventive detention order was faulty, cautionless, and unsustainable. Consequently, the court allowed the petition by quashing and setting aside the detention order, ordering the detenue's release.

4. In the final judgment, the court made the rule absolute in favor of the petitioner, issuing a writ to quash and set aside the detention order dated 13.06.2012, thereby directing the immediate release of the detenue, Ghalamsalam Abdulla Mubarak. The court's decision was based on the arguments presented regarding the delay in issuing the order, malafide intentions, violation of constitutional safeguards, and the non-application of mind by the detaining authority.