UMA SHANKAR NARAYANAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE friend of the detenu by name Wira Kumaran, an Indonesian citizen challenges his detention order dated 30.01.2004 passed by the Government of Tamil Nadu i.e., first respondent, detaining him in Central Prison, Chennai under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA Act) (Central Act 52 of 1974).

(2.) THE case of the petitioner as set out in the affidavit is briefly stated hereunder: THE said Wira Kumaran hereinafter referred to as detenue is a citizen of Indonesia. He had come to India on 05.12.2003 to place orders / purchase Indian goods. He does not know to read or write either Tamil or English. He has a shop by name Toko Kasthuri at Medan in Sumathra, Indonesia. He is a bona fide trader and selling mostly Indian goods catering to the needs of the people of Indian origin living in Sumathra, Indonesia. He had come to India the first and only time on 05.12.2003. THE detenu along with his friend by name Karpiya Ambiga landed at Chennai. He had with him 20,000 US $, all in 100 Dollar bills, of which 10,000 US $ belonged to Karpiya Ambiga and 10,000 US $ belonged to the detenu. THE said 20,000 US $ had been lawfully obtained in the name of the detenu at Medan Indonesia from an authorised money changer, namely IPT Delimegah Valutindo. Because of his unfamiliarity with Customs laws in India and did know how to read Tamil or English, they did not make a declaration when they brought the same into India. Both of them were put up in Hotel Rivera at Poonamallee High Road. While staying at Hotel, for safety purpose they entrusted 20,000 US $ with one Sugumaran, who is an exporter of Indian products. At the time of going to Indonesia, the cover containing 20,000 US $ were entrusted back to the detenu. He had kept the said money in the cover, which he had kept in his trouser pocket. After obtaining boarding pass and immigration, he was frisked by the security to whom he had showed that he had the packet with his currencies. On seeing the cover, 5 / 6 Customs Officers covered around him and his checked in baggage were called; they were thoroughly searched. THE detenu was also searched. Since the detenu does not know to write Tamil or English, the Officers wrote down the whole statement in English and asked the detenu to keep the same. This the detenue could do so because the script in the Indonesian language and the English language are one and the same. He explained that he did not acquire the foreign exchange by illegally purchasing the same in India. He did not know the procedure to the effect that foreigner must declare currency brought by him and keep with him, the declaration form counter signed by the Customs Authorities at the time of departure from India. THE discovery was accidental. THE authorities have taken into consideration extraneous factors while detaining the detenu under the COFEPOSA Act. He cannot be detained under preventive detention Act.

(3.) IT is settled law that the preventive detention is not a punitive act and it is not alternative to criminal trial under the law. IT does not empower the authority to punish a person without trial. ITs purpose is to prevent a person from indulging in activities, such as smuggling and / or such other anti social activities as provided under the Preventive Detention Law. The question therefore would be from the past conduct of the petitioner as set out in the grounds of detention or other circumstances, whether reasonable inference could be drawn that he is likely to repeat such acts in the future. In the case on hand it is revealed that the petitioner had not involved in any other case and he pleaded ignorance of Customs laws in our country. In such a circumstance, we are of the view that inference cannot be drawn that he was involved in smuggling activities or likely to indulge in such activities in future. IT is totally unreasonable to arrive a conclusion that the detenu is likely to indulge in any such prejudicial activities. What is required to be seen is, as to whether on the materials placed on record, 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 the detention of the person to ensure that he does not indulge such activities in future. Though we are aware of the limitation in considering the challenge to an order of detention and the same cannot be considered as if on an appeal in reappraising the materials, yet it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. In this regard, it is useful to refer the judgment of the Supreme Court in the case of Chowdarapu Raghunandan vs. State of Tamil Nadu and others reported in JT 2002 (3) SC 110. In para 13 their Lordships have held,