SHRI POPLAWSKI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS criminal writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been filed for quashing the order of detention dated 17th June, 1988 passed by respondent No. 2, Sh. K.L. Verma, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi under Section 3(1) and the declaration dated 20th July, 1988 passed under Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA in short) against the petitioner who was a Polish national. The said detention order was allegedly passed with a view to preventing the petitioner from smuggling goods. The petitioner had carried at Calcutta Airport on 5.5.1988.

(2.) ALTHOUGH a number of grounds have been taken in this petition for quashing the detention order, the only ground pressed before me is that since the passport of the petitioner had been seized by the Customs Officer on the date of the alleged incident, it was impossible for the petitioner to travel abroad and indulge in nefarious activities and thus the detention order suffered from vice of non-application of mind which made the detention of the petitioner illegal. In the counter-affidavits the plea taken in this respect is that the passport of the petitioner was never seized by the Customs Officer. In fact, it was voluntarily handed over by the petitioner for enquiry and the same was subsequently retained as per order of the Chief Judicial Magistrate at Barasat. It was further alleged that since the petitioner had the know how of smuggling, there was every possibility of the petitioner continuing his nefarious activities.

(3.) THEREFORE , I am of the view that the detention order in respect of the petitioner being punitive in nature and not preventive in the circumstances of the case cannot be sustained. The same is therefore quashed. The detenu be set at liberty forthwith if he is not required in any other case or not detained under any other valid order of detention. Order accordingly.