REPORTABLE

IN THE 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.                                   …………..Respondents

J U D G M E N T

H.L. DATTU,J:

1)      Leave granted.    

2)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.  

3)We now proceed to give reasons for allowing the appeal and for setting  

aside the decision of the High Court.

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4)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 Act, 1974.

5)The appellant-detenu is a Polish citizen and having business in Singapore.  

He had 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.  

However 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  

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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.  

6)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  

well.  

7)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.

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8)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.

9)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  

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indulge in smuggling activities, if released and therefore, it is necessary to  

detain him in order to prevent him from engaging in such activities.

10)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.  

The decision of the High Court has been impugned before us.

11)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  

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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  

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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.

12)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  

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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.  

At the 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.  

However,  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 activities”.

13)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  

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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.

14)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.  

15)The learned counsel for the State tried to justify the order passed by the  

detaining authority.  

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16)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.  The  action  of  Executive  in  detaining  a  person  

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being  only  precautionary,  the  matter  has  necessarily  to  be  left  to  the  discretion  of  the  Executive Authority.”

18)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  

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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.  

19)   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 the State.  

20)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  

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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.”

21) 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.  

22)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  

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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.  In  an  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.”  

This 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  

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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.”

23)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  straight-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  person.  The matter is left to the subjective satisfaction of  the competent authority.”

24)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  

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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,  

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there were no compelling reasons for the detaining authority to pass the  

impugned order.  Therefore, the order of detention is unsustainable.

25)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  on  bail.  

Therefore 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  

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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.”

26) 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.  Therefore 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.  Hence,  the averments made in these grounds are  unsustainable  and  untenable  and  the  detention  order passed is valid in law.”    

27)In our view,  if  that  be the position,  the order  of  preventive  detention  

could  have  been passed  under  Section  3(1)  (ii)  of  COFEPOSA,  as  it  

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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.  

28)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  

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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 detention  

unjustified.  

29)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.  

30)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  

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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.  

31)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 therefor.

  …………………………………J.

                                                              [ DALVEER BHANDARI ]

  …………………………………J.

                                                              [ H.L. DATTU ]

New Delhi, November 13, 2009.

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