Mrs. Suprabha Bhupesh Sen vs The State Of Maharashtra, Through ...
2003 Latest Caselaw 412 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard the learned counsel for the petitioner and the learned A.P.P. for the State.

2. The petitioner is detained under COFEPOSA Act by the detention order dated 11.3.2002. In the grounds of detention, it is stated that the petitioner was intercepted by the Air Intelligence Unit of Customs Department on 1.9.2001 when she was going abroad to Dubai by AI 845 flight. After immigration and customs clearance. It was found that the petitioner was carrying an amount of Rs. 5,58,500/- concealed in the cavities made in the sandals worn by her and in the hand baggage. Her statement was recorded under Section 108 of Customs Act on the same day and thereafter the order of detention was clamped upon her. The detention authority also noted n the aforesaid statement of the petitioner that, on earlier occasion also in the year 1998 she was caught by the Customs Commissionerate for attempting to smuggle Rs. 7 lacs worth Indian currency on the way to Dubai and she was released from the matter as a special case after deduction and adjustment of Rs. 70,000/- towards redemption fine in lieu of confiscation.

3. The detention order was challenged by the petitioner on number of grounds, however, the counsel for the petitioner restricted himself on one i.e. carrying Indian Currency by the petitioner does not at all affect the Conservation or Augmentation of Foreign Exchange. Advocate for the petitioner also contended that when in the aforesaid C.R. the petitioner was granted bail by the Magistrate, the petitioner sought permission of the Magistrate to go abroad to Dubai where she was in employment and on permission by the Magistrate she again came back within stipulated period and as soon as she got down at the Sahar Air Port she was clamped and was taken in custody. She also pointed out that the petitioner is also facing trial of this matter on day-to-day basis.

So far as the challenge to the detention order is concerned, the main contention stated above is that, carrying Indian currency in the manner as alleged in the grounds of detention, does not at all affect the Conservation or Augmentation of Foreign Exchange. Our attention was drawn by the counsel for the petitioner to the various provisions of the COFEPOSA Act and she contended that even if the aforesaid act may fall in the definition of offences under different Acts, carrying Indian currency does not at all affect the conservation or Augmentation of Foreign Exchange.

The learned A.P.P. was given time to verify whether the aforesaid activity affects Conservation or Augmentation of Foreign Exchange, and inspite of her best efforts she could not find any legal provision from which it can be said that such activity does not affect Conservation or Augmentation of Foreign Exchange.

The detention order is based on two facts, namely, smuggling of goods with a view to prevent her in future from smuggling the goods; and secondly, acting in any manner prejudicial to the Conservation of Foreign Exchange. The counsel for the petitioner relied upon "Merrian Webster's Collegiate Disctionary, 10th Edition", where the word "Conservation" has been explained as, "a careful preservation and protection of something; esp: planned management of a natural resource to prevent exploitation". Since no provision of COFEPOSA Act or any other enactment could be produced before us to show as to how such a activity of trying to take away the Indian currency out of the country would affect the Conservation of Foreign Exchange, the petition has to be allowed.

Petition allowed. Detention order is quashed. The petitioner detenue be released forthwith, if not required in any other matter.

Rule made absolute.