Mumbai: Describing it as "faulty, caution less and unsustainable", the Bombay High Court has set aside an order of Medha Gadgil, the Principal Secretary (Home) to the Maharashtra government, detaining a person under COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act) for smuggling of fake currency notes.
Ghalamsalam Abdulla Mubarak, the detenu, was apprehended along with another person by an officer of air intelligence unit at the airport when he came from Dubai on August 07, 2011, and fake currency notes were seized from his bag. His passport was impounded and he was sent to jail.
Justices AP Bhangale and AS Oka recently quashed the detention order observing that impounding the passport of the detenu was enough to curb the potentiality of the smuggling, and therefore there was no justification to pass an order of preventive detention when there was no chance of the detenu travelling to foreign country without passport.
In the present case, admittedly the passport of the detenu was retained by the authorities and was not returned. Hence, likelihood of the detenu travelling to foreign country illegally without the passport was remote, the judges noted.
The principle emanating from the frame work of the Constitution of India assuring personal liberty and giving fundamental rights to each citizen of India is that the order of the preventive detention being exceptional measure by way of social defence ought to be used with great deal of care and circumspection, the bench observed.
"We conclude that the impugned order of preventive detention passed in the present case is faulty, caution less and unsustainable. We, therefore, allow this petition by quashing and setting aside the impugned order of the Preventive detention", the judges further said.
The detenu`s wife filed a petition in the High Court seeking quashing of the detention order. It was submitted that the authorities had arrested the detenu on August 07, 2011. He was released on bail on August 22, 2011.