TaxTMI 
TaxTMI 
TaxTMI 
2009 (11) TMI 881
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....aving 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 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 dismisse....
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....efore, 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 pas....
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....ourt 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 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", a....
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....s 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 being only precautionar....
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....f 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 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 fut....
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....mate 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 so....
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....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 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 ....