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“Single smuggling activity no ground for preventive arrest”

Legal Correspondent

For COFEPOSA detention, the highest standards of proof are required: court

New Delhi: The mere fact that a person on one occasion smuggled goods into the country will not constitute a legitimate basis and sole ground for preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, the Supreme Court has held.

“For issuing an order of detention under the Act, the highest standards of proof are required. In an appropriate case, an inference could legitimately be drawn from a single incident of smuggling that the person may indulge in smuggling activities. However, for that purpose antecedents and the nature of the activities already carried out by the 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 preventing, it was necessary to detain him,” said a Bench consisting of Justices Dalveer Bhandari and P. Sathasivam.

Writing the judgment, Justice Sathasivam said: “The subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. Court is bound to protect him [detenu] in view of the personal liberty guaranteed under the Constitution.”

The Bench said: “In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organised act or manifestation of organised activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessitating his detention to ensure that he does not repeat this activity in future.”

Fundamental rights

Courts exercising powers of judicial review would not consider the challenge to an order of preventive detention as if on appeal. Yet, since prevention detention involved fundamental rights of citizens, freedom of movement and pursuit of normal life and liberty, no absolute immunity could be claimed by the authorities as to the decision arrived at.

In the instant case, businessman Deepak Kumar was detained under the COFEPOSA Act on December 5, 2007 on the ground that in the guise of import, he had smuggled goods into the country. His wife Pooja Batra filed a habeas corpus petition challenging the order. The Delhi High Court, while dismissing it on September 5, 2008, imposed costs of Rs.50,000.

The Supreme Court Bench allowed an appeal against this judgment and directed that the detenu be set at liberty forthwith. The High Court was not justified in imposing Rs. 50,000 as costs, the Bench held.

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