[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.2391-2392 OF 2010

SMT. MOULANA SHAMSHUNNISA & ETC.  ...APPELLANTS

Versus

ADDITIONAL CHIEF SECRETARY & ORS. …..RESPONDENTS

O R D E R HARJIT SINGH BEDI, J.

1. These appeals arise out of the following facts:

The son of the appellant, Nazhar Ahmed by name, was detained  

under  the  provisions  of  the  Conservation  of  Foreign  Exchange  and  

Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by the order of  

the  Additional  Chief  Secretary  to  the  Government,  Home Department  

dated 20th January, 2010.  As per the case put up against the detenu, he  

had been arrested at the Bangalore International  Airport after  he had  

been found in possession of 4.35 kgs. of Gold Jewellery which he had not  

declared to the Customs. He moved an application for bail  which was  

rejected by the Special Court for Economic Offences.  He thereafter filed  

an appeal before the City Civil  and Sessions Judge, Bangalore (which  

was numbered as Criminal Miscellaneous No.4858 of 2009) which was  

ultimately  allowed and bail  was granted to him on the 5th December,

2009.   He  was  

however  detained  

under the COFEPOSA on the 24th January,  2010.   He was thereafter  

produced before  the Advisory Board and the Board too confirmed his  

detention for a period of one year from the date of his detention.  A writ  

petition was thereafter filed by the petitioner impugning the detention of  

her son.  Before the High Court, several submissions were made :

(i) that the advisory board did not send a report within 11  

weeks from the date of the order of detention as required  

by Section 8(c) of the COFEPOSA ;

(ii) that in view of the seizure of the passport of the detenu  

by the  respondents,  the  apprehension of  the  detaining  

authority  that  the  petitioner’s  son  would  continue  his  

smuggling activities could not be accepted as it would not  

have  been  possible  for  him  to  leave  India  without  a  

passport.   

In  reply,  the  Government’s  stand  was  that  the  report  of  the  

Advisory Board has been submitted within time and that the Additional  

Chief Secretary had made the detention observing that there were clear  

chances that the detenu would continue his smuggling activities despite  

the seizure of his passport as the smuggling activities could continue  

even within India after he had been released on bail.   

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2. The  High  Court  

examined  both  the  

contentions and held that there was no violation of Section 8 (c) of the  

COFEPOSA and insofar  as the  second contention was concerned,  the  

apprehension that if enlarged on bail the detenu could continue with his  

smuggling activities without even travelling abroad was a possibility, and  

as  such,  the  detention  order  was  justified.   The  writ  petitions  were,  

accordingly, dismissed.

3. Mr. K.K. Mani, the learned counsel for the appellants has raised  

substantially one plea before us.  He has pointed out that this court had  

upheld the vires of several preventive detention statutes primarily on the  

ground that  adequate safeguards for the protection of  the rights  of  a  

detenu had been provided  while  noticing  that  smuggling  activities  by  

individuals was a matter of deep concern to India and its economy, but if  

the  procedural  safeguards  were  in  any  manner  not  observed,  the  

detention order would fail.  The learned counsel has in this connection  

relied  on  the  observations  made  by  this  Court  in  Smt.  Icchu  Devi  

Choraria  Vs.  Union  of  India  &  Ors.  [1980  (4)  SCC  531]  and  

Kamleshkumar Iswardas Patel Vs. Union of India & Ors. 1995 (4)   

SCC 51].  He has pointed out that in the light of the observations in  

these two judgments, if the detaining authority was oblivious of certain  

significant facts with regard to the detention that itself was a ground for  

the quashing of a detention order.  In this background, he has submitted  

that  the  observations  of  the  detaining  authority  and  the  High  Court  

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therefore, that in case  

the  detenu  was  

released from jail, he could continue with his smuggling activities within  

India, notwithstanding that he could not travel abroad as his passport  

had been seized, was not acceptable as there was no material to justify  

this  conclusion.  In  this  connection,  the  learned  counsel  has  placed  

reliance on Rajesh Gulati Vs. Govt. of NCT of Delhi & Anr. [2002 (7)  

SCC 129]  and Gimik Piotr Vs. State of Tamil Nadu and Ors. [2010  

(1) SCC 609].   

4. In  Rajesh  Gulati’s  case  (supra),  the  question  that  came  to  be  

canvassed on behalf of the detenu was that as his passport continued to  

be in the possession of the customs authorities, there was no question of  

the appellant travelling abroad or indulging in any smuggling activity.  

This plea was accepted by this court by observing that 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.  It was observed  

thus :

“15. xxxxxxxxxxxx xxxxxxxxxxxxxxxx  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.”

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This  opinion  

has  been  further  

fortified by this court in  Gimik Piotr’s case (supra).  In para 32, it has  

been held as under :

“32.   In the present case, the detention order was   passed  under  Section  3(1)  (i)  of  COFEPOSA.   The  Customs  Department  has  retained  the  passport  of   detenu.  The likelihood of the appellant indulging in   smuggling  activities  was  effectively  foreclosed.  As  observed by this Court in Rajesh Gulati 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.”

And again in para 35 ;

“35.  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   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 facts and circumstances of the case.”

5. The learned counsel for the respondents has, however, contended  

that the respondent had been intercepted on specific intelligence and he  

had been arrested twice earlier on similar charges.  We are of the opinion  

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that  this  fact  is  

immaterial  insofar  as  

the present detention order is concerned.   

6. We,  accordingly,  allow  these  appeals  and  quash  the  detention  

order dated 24th January, 2010.

………………………………….J. (HARJIT SINGH BEDI)

………………………………….J. (CHANDRAMAULI KR. PRASAD)

DECEMBER 15, 2010, NEW DELHI.

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