Holding

The detention order under COFEPOSA was unsustainable because the State failed to meet the high standard of proof of propensity and the passport impoundment foreclosed any risk of future smuggling.

Summary

The appellant, a Polish citizen, was caught at Chennai airport with large amounts of foreign currency and his passport was impounded. He was detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) to prevent future smuggling, and he challenged the detention via a habeas corpus petition. The High Court upheld the detention, but the Supreme Court examined whether the State had proved a propensity or potentiality for future smuggling and whether the passport impoundment alone satisfied the object of the detention. The Court held that a single isolated incident without evidence of organized activity does not meet the high standard of proof required for preventive detention, and that impounding the passport effectively barred any possibility of smuggling abroad, rendering the detention unnecessary. Consequently, the Supreme Court set aside the detention order and ordered the appellant’s release.

Issues considered

Whether the State can satisfactorily prove the appellant's propensity and potentiality to engage in smuggling activities in the future.
Whether the impounding of the appellant's passport alone suffices to achieve the object of a preventive detention order under COFEPOSA.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)(i), s. 3(1)(ii)
Customs Act, 1962

Subjects

preventive detentionCOFEPOSAforeign exchange smugglingpassport impoundmentpropensitypotentialitypersonal libertyhabeas corpus

Judgment

[2009] 15 (ADDL.) S.C.R. 889

GIMIKPIOTR A
v.
STATE OF TAMIL NADU AND ANR.
(Criminal Appeal No. 2121 of 20Q9)
NOVEMBER 13, 2009
B
[DALVEER BHANDARI AND H.L. DATTU, JJ.]

Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 - s. 3 (1)(i) - Detenu trying to
-"+ smuggle foreign currency outside the country - Detention
order uls. 3 (1)(i) - Passport also impounded- Challenge to - c
Held: In matters of personal liberty, standard of proof needs to
be high to justify order of preventive detention - Material
provided by State not enough to justify curtailment of liberty o(
appellant under order of preventive detention - Foreign
currency cannot be smuggled as person cannot move out of
the country on account of his passport being impounded - D
. ~ Thus, detention order not sustainable - Order of High Court
set aside .
Appellant-polish citizen, tried to smuggle foreign
\
I currency outside the country. The said currency was
seized. The detention order was passed u/s. 3(1 )(i) of the E
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 to prevent him· from
smuggling goods in future. His passport was also
)- impounded. Appellant challenged the detention order.
High Court upheld the detention order. F
The question which arose for consideration in this
appeal are whether the .respondent-State can prove
satisfactorily that there is propensity and potentiality of the
appellant-detenu to engage. in smuggling activities in the
future, if set free; and whether the impounding of the G
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.

889 H
890 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A Allowing the appeal, the Court
HELD: 1.1. Conservation of Foreign Exchange and ~
Prevention of Smuggling Activities Act, 1974 is enacted to
curb the thriving smuggling busii:iess of foreign
currencies, antiques and other valuable items from India
B to its neighbouring countries. From the objects and
reasons of the Act, 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. The justification for passing the order -\.,·
c 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. The potentiality or
propensity of the person to engage in future prejudicial
activities needs to be proved. (Paras 19 and 21] (899-F-G;
p 900-D-E]
Union of India vs. Paul Manickam AIR 2003 SC 4622 -
....
referred to. ...
1.2. Even a single solitary act can prove the propensity
E and potentiality of the detenu to carry on with similar r-
'I-
smuggling activities in future. The mere fact that on one
occasion person smuggled goods into the country may
constitute 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
F taken into consideration. In the instant 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. It cannot be said that the confession made
G 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. In the statement made
before the customs authorities, the appellant has only _(
~arrated his antecedents, the nature of business carried
on
. by him. while he was in Singapore and how he was
H
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 891

induced to carry the foreign currency by a person who has A
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 8
and it is their specific case that he may abet the smuggling
activity. [Para 24] (902-C-G]
Pooja Batra vs. Union of India (2009) 5 SCC 296; Gurdev
Singh v. Union of India (2002) 1 SCC 545, relied on.
1.3. During the course of the hearing, ·the counsel for C
the State, submitted 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 D
Court accepted this as a satisfactory answer to justify the
passing of a preventive detention order. If that be the
position, the order of preventive detention could have been
passed u/s~ 3(1) (ii) of COFEPOSA, as it authorizes the
State Government to pass a preventive detention order to
E
preventing him from abetting smuggling of goods. The
argument advanced by the respondents is devoid of any
logic. In the instant case, the detention order is passed u/
s. 3(1)(i) of COFEPOSA. The customs department has
) retained the passport of the detenu. The likelihood of the
app~llant indulging in smuggling activities was effectively F
foreclosed. [Paras 26 and 27] (903-G-H; 904-A-C-E]
Ibrahim Shareef M. Madhafushi vs. Union of India and
Ors. (1992) 1 SCC 1, referred to.
Sitthi Zuraina Begum-vs-: Union of/ndia and Ors. (2002) G
10 SCC 448, Distinguished .
. -·1:4. There was no pressing need to curtail the liberty
of a person by passing a preventive detention order.
Foreign currency cannot be smuggled as person cannot
move out of the country on account of his passport being H
892 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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
8 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. Thus, reasons are recorded for directing the
release of the detenu. [Paras 30 and 31] (905-C-G]
c
Attorney General for India & Ors. vs. Amratlal Prajivandas
& Ors. 1994 (5) SCC 54; Chowdarapu Raghunandan vs. State
of Tamil Nadu 2002 (3) SCC 754; KundanBhai Dhulabhai
Shaikh Etc. vs. District Magistrate, Ahmedabad & Ors. 1996
(3) SCC 194; Mahesh Kumar Chauhan@ Banti vs. ·union of
o.- lndai 1990 (3) SCC 148; Prabhu Dayal Deorah vs. Distt.
Magistrate 1974 (1) SCC 103; Rajesh Gu/ti vs. Government
of Delhi and anr., referred to.
Case Law Reference :
E 1994 (5) SCC 54 Referred to. Para 11
2002 (3) SCC 754 Referred to. Para 12
1996 (3) SCC 194 Referred to. Para 13
1990 (3) SCC 148 Referred to. Para 13

F
1974 (4) SCC 103 Referred to. Para 13 -r
2002 (7) SCC 129 Referre1' to. Para 14
AIR 2003 SC 4622 Referrei.ld to. Para 17
(2009) 5 SCC 296 Relied on. Para 22
(2002) .1 SCC 545 Relied on. Para 23
(1992) 1 SCC 1 Referred to. Para 28
G
(2002) 10 sec 448 _.,. Distinguished. Para 29
' I
CRIMINAL APPELsATE JURISDICTION : Criminal Appeal
No. 2121 of 2009. ~ \
Fro"m the Judgment & Order dated 15.07.2009 of the High
H Court of Judicature at Madras in HCP No. 1874 of 2008.
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 893

K.K. Mani, Ankit Swarup, for the Appellant. A
R. Shanmugasundram, Promila, S. Thananjayn for the
Respondents.
The Judgment of the Court was delivered by
H.L. DATTU, J. 1. Leave granted. B

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. C
3. We now proceed to give reasons for allowing the appeal
and for setting aside the decision of the High Court.
I
4. The appeal is directed against the order passed by the
Madras High Court in HCP No. 1874 of 2008, dismissing the D
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. ' E
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
r-
return to Singapore on 7.9.2008 via Air India flight IC-557.
However in the Chennai International Airport, he was intercepted r:;
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 G
under a Mahazar for further action under Customs Act, 1962,
) read with Reg;Jlation 5 of the Foreign Exchange Management
(Export and Import of Currency) Regulations, 2000, fortrying to
smuggle foreign currency outside the co'_'.ntry. The detenu was
produced b~fore E.O. II Additional Chief Metropolitan Magistrate, H
....
'
894 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Madras on 8.9.2008, who passed 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.
B 6. The wife of the detenu sent a representation dated
12.9.2008, to the Commissioner of Customs (Airport) Chennai,
and the s~me was rejected as well.
7. The Government of Tamil N~du (respondent no.1 ), with a +-
view to prevent the appellant from smuggling goods in future, ""'
c passed detention order against the detenu under Section 3(1)
(i) of the Conservation of Foreign Exchange and Prevention of I.
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
D 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 ql!estioning the said order on various
E grounds.
8. The contention of the detenu-appellant before the High
0

"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 ~
F 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 p.assport of the appellant has
been impounded and, therefore, there is no possibility of the
G 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
H

-
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 895
[H.L. DATTU, J.]
on the ground that the appellant by his own admission brought A
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 respontjents contended that even if the
8
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 indulge in
smuggling activities, if released and therefore, it is necessary
to detain him in order to prevent him from engaging in such
activities. C
1O. The High Court placing reliance on the observations
made in the case of Pooja Batra vs. Union of India, [(2009) 5
sec 296], has concluded, that, a single incident can prove the
propensity and potentiality of the detenu to carry out smuggling

-
---4 activities in the future also. It has also observed that the statement D
. I
of the appellant that he was smuggling foreign currency on the
t )o-
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 E
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.1..The decision
of the High Court has been impugned before us.
11. The learned counsel for the appellant contended that the F
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 is likely to
resume the prejudicial activity if not detained. It is further G
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 H
896 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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
B
is such that itgives 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,
c 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·
D activity. If one 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
E 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
F 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 sec 754, wherein it is stated, "that the past conduct of
G the petitioner is that he is an engineering graduate and at the
relevant time he was the Managing Director of a public limited
,JI'
company. There is no other allegation that he was involved in any 1
other anti-social activities. The only allegation is that he visited
Singapore t\iyice as a "tourist". Admittedly, the petitioner has filed
bail application in a criminal prosecution for the alleged offence
H
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 897
[H.L. DATTU, J.]
narrating the fact that his so-called statement was not voluntary A
~,./"+ 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
B
nothing on record to hold thatthe 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 previous!~
he had visited Singapore twice as a "tourist", and, therefore, it,
can be inferred that the petitioner might have indulged and was. c
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 D
,._ 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 Kundan Bhai Dhulabhqi
Shaikh Etc. vs. District Magistrate, Ahmadabad and Ors. Etq.
( 1996) 3 SCC 194, has observed that Black marketing is a E
social evil. Persons found guilty of economic offences have to
be dealt with a firm hand, but when it comes to fundamental rights
under the Constitution, this Court, irrespective of enormity arid
gravity of allegations made against the detenu, has to intervene

.. ) as was indicated in Mahesh Kumar Chauhan's case, [(1990)
3 SCC 148] and in an earlier decision in Prabhu Dayal Deorah F
vs. 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, excepf in accordance
with the procedure established by law particularly as normal penal G
laws would still be available for being invoked rather than keeping
..._,
a person in detention without trial.
.A
14. The counsel for the appellant also relies on the decision
of this court in the case of Rajesh Gulati vs. Government of NCT
H
898 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A. of Delhi and another[(2002) 7 sec 129]. wherein it is held, that, .+.
once the customs department has seized the passport of the
detenu, the possibility of detenu moving 9utside the country for
the .purpose of smuggling was effectively foreclosed, and
therefore, there could be no question of detaining the detenu to
prevent him frotn smuggling goods into India.
8 -·
15. The learned counsel for the State tried to justify the order
passed by the detaining authority.
~

16. The two issues that require to be decided are:"'

c (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
D appell_ant so as to prevent him from leaving the
country will suffice in satisfying the object sought to
be achieved by passing the detention order?
, ,, 1?. Preventive detention is not punitive but a precautionary
measure. The object is not to punish a person, but to intercept
E or prevent him from doing any illegal activity. Its purpose is to
pr~vent 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
•_ vs. Paul Manickam (AIR 2003 SC 4622), stated the following:-
F "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
G
available a"nd plac~cfoafore it that such detention is· c>
necessary in order to prevent the person detained from A
acting in a matter prejudicial to certain objects which are
specified by the law. The action of Executive in detaining a
person being only precautionary, the matter has necessarily
H
:-
Jt
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 899
[H.L. DATTU, J.]
to be left to the discretion of the Executive Authority." A
.A 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 B

.,
----,.

-'!-
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 0
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 I

Detention Act was passed by Parliament in 1950. After the expiry D
>---
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 Activities (Prevention) Act (TADA) in 1985. Though E
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 F
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 t_he purpose of the Act i's 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 G
....
the State .
~ 20. Section 3(1) of COFEPOSAreads:-
"3. Power to make orders detaining certain persons. (1) The
H
,,
•
~
..
~

900 SUPREME COURT REPORTS [2009] 15 (ADDL.) S. C.R.
...
·--~. Central Government or the State Government or any officer
A
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 belowthe rank of a Secretary
to that Government, specially empowered for the purposes
B
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 or ~·
.
'

with a view to preventing him from- (i) smuggling goods, or "'
c (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
D 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
E 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
1
other words, what needs to be proved is the potentiality or
propensity of the person to engage in future prejudicial activities.
F 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 vs. Union of India,
[(2009) 5 sec 2961 :-
G "As·already discussed, even based on one incident the !1
Detaining. Authority is free to take appropriate action
including detaining him under COFEPOSA Act. The -~ ii
' ~
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 a·ppropriate case, an inference
H

·~
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 901
[H.l. DATTU, J.]

,/ could legitimately be drawn even from a single incident of A
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."
B

t This court further observed:-
_,,. -4
"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 c
which is guaranteed under the Constitution of India. Further
subjective satisfaction of the autti.ority under the law is not
absolute and should not be unreasonable. In the matter of
preventive detention, what is required to beseen is that it
could reasonably be said to indicate any organized act or D
....
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 E
of detention under the COFEPOSA Act, highest standards
-I
of proof are required to exist. In the absence of any s-pecific
and authenticated material to indicate that he had the
J propensity and potentiality to continue to indulge in such
activities in future, the mere fact that on one occasion person F
j 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 vs. Union oflndia, [(2002) G
"'
. ,Ji.
1 sec 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
H
·-
902 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A principles. It depends on the facts and circumstances of the
case, the nature of the acti"'.ities 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
8
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 ~

t
set standards for the detaining authority to decide whether ~
'-.
an order of detention should be passed against a person.
c The matter is left to the subjective satisfaction of the
competent authority."
24. What emerges from the abovementioned c::ises is that,
even a single solitary act can prove the propensity and
potentiality of the detenu to carry on with similar smuggling
D activities in future. The mere fact that on one occasion person
smuggled goods into the country may constitute a legitimate ...I.
....
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
E 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 \-
F COFEPOSA. This submission of the respondent's learned
counsel, in our view, has no merit. In the statement made b~frre
the customs authorities, the appellant has. Of11Y narrater! his
antecedents, the nature of business carrier! on by hir.~ vvhile he
was in Singapore and how he was induced !~carry the foreign
t
G currency by a person who has business dealinys in Singapore. ""'t-"
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 fcreign currency smuggling
activities and it is their specific case that he may abet the
H
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 903
[H.L. DATTU, J.]
smuggling activity. In matters of personal liberty, the standard of A
~
proof needs to be high to justify an order of preventive detention.
In our considered view, 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 8
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
c
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 D
,._
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 E
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
activities though your passport has been submitted in the F
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."
G
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 H
904 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

\

A 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:-
"lt is accepted by the detenue himself in the representation
B 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
c unsustainable and untenable and the detention order
passed is valid in law."
27. In our view, ifthat be the position, the order of preventive
detention could have been passed under Section 3(1) (ii) of
COFEPOSA, as it authorizes the State Government to pass a
o 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
E 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.
F 28. The counsel appearing for the State relied on the
observations made by this court in the case of Abdul Sathar
Ibrahim Malik vs. Union of India and others wi~~1 Ibrahim
Shareef M. Madhafushi v. Union of India and Others, [(1992)
1 SCC 1] with particular reference to para 4 of the judgment. A
G 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
H international smuggling ring and therefore court sustained the
GIMIK PIOTR v. STATE OF TAMIL NADU AND ANR. 905
[H.L. DATTU, J.]
i

order of detention passed by the detailing authority. This court A
. ..._/ 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 B
learned counsel appearing for the State, was the case of Sitthi
_/
Zuraina Begum vs. 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 c
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 D
curtaii 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 smuggnng activities, or abetting such activities by E
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 fact and circumstances of the case. F
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.
G
N.J. Appeal allowed.

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