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Preventive detention of Polish national nullified

Legal Correspondent

Says COFEPOSA cannot be applied to punish a detenu before guilt is determined

The appellant was found carrying foreign currencies worth Rs. 40.72 lakh
His writ petition was dismissed by the Madras High Court

New Delhi: The Supreme Court has quashed the order of preventive detention of a Polish citizen under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) for trying to smuggle foreign currency into India.

On October 28, a Bench of Justices Dalveer Bhandari and H.L. Dattu ordered the release of Gimik Piotr forthwith and said it would give reasons later.

Giving its reasons on November 13, the Bench said: “preventive detention essentially deals with curtailment of a person’s liberty and is, therefore, a potential weapon for human rights abuses. In the United States, some State statutes authorise preventive detention, where there is clear and convincing evidence that the defendant is a danger to another person or to the community and that no condition or combination or conditions of pre-trial release can reasonably protect against that danger.”

For public safety

Writing the judgment, Mr. Justice Dattu said: “Pre-trial 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 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 instant case, the appellant came to India on September 5, 2008 from Singapore and when he was due to return on September 7, he was intercepted at the Chennai airport by the Customs authorities and he was found carrying foreign currencies valued at Rs. 40.72 lakh.

The foreign currencies were seized and subsequently he was detained under the COFEPOSA by an order passed by the Tamil Nadu government. His writ petition was dismissed by the Madras High Court and he filed the present appeal against that order.

Allowing the appeal, the Supreme Court Bench said the contention of the authorities that the detenu was part of a smuggling ring had no merit. Accepting the appellant’s counsel K.K. Mani’s submission that he was not a habitual smuggler, the Bench said, “There was no pressing need to curtail the liberty of a person by passing a preventive detention order.”

“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,” the Bench said and quashed the detention order.

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