SMT. MOULANA SHAMSHUNNISA & ETC. versus ADDITIONAL CHIEF SECRETARY & ORS.

Citation: [2010] 14 S.C.R. 1062 · Decided: 15-12-2010 · Supreme Court of India · Bench: H.S. BEDI · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2010] 14 (ADDL.) S.C.R. 1062 
A 
SMT. MOULANA SHAMSHUNNISA & ETC. 
B 
v. 
ADDITIONAL CHIEF SECRETARY & ORS. 
(Criminal Appeal Nos. 2391-2392 of 2010) 
DECEMBER 15, 2010 
[HARJIT SINGH BEDI AND CHANDRAMAULI KR. 
PRASAD, JJ.] 
CONSERVATION OF FOREIGN EXCHANGE AND 
C PREVENTION OF SMUGGLING ACTIVITIES ACT, 1974: 
Order of detention - Observation of detaining authority 
that in case detenue was released from jail, he could continue 
his smuggling activities within the country notwithstanding his 
D inability to travel abroad for seizure of his passport - HELD: 
Order of detention quashed. 
Smt. lcchu Devi Choraria Vs. Union of India & Ors. 1981 
(1) SCR 640 = 1980 (4) SCC 531; and Kamleshkumar 
lswardas Patel Vs. Union of India & Ors. 1995 (3) SCR 279·= 
E 1995 (4) SCC 51; Rajesh Gulati Vs. Govt. of NCT of Delhi & 
Anr. 2002 (7) SCC 129; and Gimik Piotr Vs. State of Tamil 
Nadu and Ors. 2009 (15) SCR 889 = 2010 (1) SCC 609 -
relied on. 
F 
G 
H 
Case Law Reference: 
1981 (1) SCR 640 
relied on 
para 3 
1995 (3) SCR 279 
relied on. 
para 3 
2002 (7) sec 129 
relied on 
para 3 
2009 (15) SCR 889 
relied on 
para 3 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 2391-2392 of 2010. 
1062 
' MOULANA SHAMSHUNNISA & ETC. v. ADDITIONAL 1063 
CHIEF SECRETARY 
From the Judgment & Order dated 26.05.2010 IN W.P. 
A 
No. 68 of 2010 (HC) and dated 13.07.2010 in W.P.H.C. No. 
118 of 201 O of the High Court of Karnataka at Bangalore. 
K.K. Mani, Abhishek Krishna for the Appellant. 
Rashmi Nandakumar, Anitha Shenoy for the Respondents. 
B 
The Order of the Court was delivered by 
ORDER 
HARJIT SINGH BEDI, J. 1. These appeals arise out of 
C: 
the following facts: 
The son of the appellant, Nazhar Ahmed by name, was 
detained under the provisions of the Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974 d 
(COFEPOSA) by the order of the Additional Chief Secretary 
to the Government, Home Department dated 20th January, 
2010. As per the case put up against the detenu, he had been 
arrested at the Bangalore International Airport after he had been 
found in possession of 4.35 kgs. of Gold Jewellery which he 
had not declared to the Customs. He moved an application_for 
bail which was rejected by the Special Court for Economic 
Offences. He thereafter filed an appeal before the City Civil and 
Sessions Judge, Bangalore {which was numbered as Criminal 
Miscellaneous No.4858 of 2009) which was ultimately allowed 
and bail was granted to him on the 5th December, 2009. He 
was however detained under the COFEPOSA on the 24th 
January, 2010. He was thereafter produced before the Advisory 
Board and the Board too confirmed his detention for a period 
E 
F 
of one year from the date of his detention. A writ petition was 
thereafter filed by the petitioner impugning the detention of her 
G 
son. Before the High Court, several submissions were made: 
(i) 
that the advisory board did not send a report within 
11 weeks from the date of the order of detention 
as required by Section 8(c) of the COFEPOSA ; 
H 
1064 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R 
A 
(ii) 
that in view of the seizure of the passport of the 
detenu by the respondents, the apprehension of the 
detaining authority that the petitioner's son would 
continue his smuggling activities could not be 
accepted as it would not have been possible for him 
B 
to leave India without a passport. 
In reply, the Government's stand was that the report of the 
Advisory Board has been submitted within time and that the 
Additional Chief Secretary had made the detention observing 
that there were clear chances that the detenu would continue 
C his smuggling activities despite the seizure of his passport as 
the smuggling activities could continue even within India after 
he had been released on bail. 
2. The High Court examined both the contentions and held 
D that there was no violation of Section 8 (c) of the COFEPOSA 
and insofar as the second contention was concerned, the 
apprehension that if enlarged on bail the detenu could continue 
with his smuggling activities without even travelling abroad was 
a possibility, and as such, the detention order was justified. The 
E writ petitions were, accordingly, dismissed. 
3. Mr. K.K. Mani, the learned counsel for the appellants 
has raised substantially one plea before us. He has pointed out 
that this court had upheld the vires of several preventive 
detention statutes primarily on the ground that adequate 
F

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