Preventive detention needs real material of future smuggling and consideration of passport custody before subjective satisfaction can stand.
Preventive detention under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act could not rest on a solitary incident alone, because the recorded satisfaction had to show a real basis for apprehension of future smuggling; on the facts, that material was inadequate. The detention also failed because the authority did not consider that the detenu's passport was already in Customs custody, a material circumstance bearing on the likelihood of future travel and smuggling. The Bombay HC therefore treated the non-consideration of that fact as fatal and quashed the detention order.
Issues: (i) Whether a detention order passed under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 could be sustained when the subjective satisfaction was based only on a solitary incident. (ii) Whether the detention order could stand without considering the fact that the detenu's passport was already in the custody of the Customs Department.
Issue (i): Whether a detention order passed under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 could be sustained when the subjective satisfaction was based only on a solitary incident.
Analysis: The detention was founded only on the apprehension that the detenu would smuggle goods in future, and the recorded satisfaction was referable solely to section 3(1)(i). The reasoning accepted that the principle governing preventive detention in such a setting required material showing a real basis for the apprehension of future smuggling activity. A solitary incident, by itself, was treated as insufficient on the facts of the case.
Conclusion: The detention order could not be sustained on the basis of a solitary incident alone and the issue was decided in favour of the petitioner.
Issue (ii): Whether the detention order could stand without considering the fact that the detenu's passport was already in the custody of the Customs Department.
Analysis: The record showed that the passport had already been taken into custody as a bail condition. That circumstance was relevant to the likelihood of the detenu travelling abroad and indulging in future smuggling. The detention authority did not consider that factor while forming the subjective satisfaction, and the detention could not be justified on grounds not relied upon by the authority itself.
Conclusion: Non-consideration of passport custody vitiated the detention order, and the issue was decided in favour of the petitioner.
Final Conclusion: The preventive detention order was quashed because the recorded satisfaction under section 3(1)(i) was not supported by adequate material and ignored a material circumstance bearing on the alleged future propensity to smuggle goods.
Ratio Decidendi: Where preventive detention is invoked solely under section 3(1)(i), the subjective satisfaction must be founded on material showing a real likelihood of future smuggling, and a material circumstance negating that likelihood, such as custody of the passport, must be considered.
TaxTMI 
AI Drafter ✕
TaxTMI 
