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5)The appellant-detenu is a Polish citizen and having business in Singapore.

He had come to India on earlier occasions for purchase of antiques and garments (Textiles). He came to India for such business on 5.9.2008 and he was due to return to Singapore on 7.9.2008 via Air India flight IC-557. However in the Chennai International Airport, he was intercepted by the customs officers. The detenu stated, that, he was carrying 2300 Pounds and 400 US Dollars only. A search of his baggage revealed currency worth 15,500 Euros, 39,700 US Dollars, 16,200 British Pound and Rs. 30,000/-, adding to Rs. 40,72,878/- pasted to six sheaves of newspapers. The currency was seized under a Mahazar for further action under Customs Act, 1962, read with Regulation 5 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, for trying to smuggle foreign currency outside the country. The detenu was produced before E.O. II Additional Chief Metropolitan Magistrate, Madras on 8.9.2008, who passed an order remanding the appellant to judicial custody. The appellant filed two bail applications, one before the E.O. II Additional Chief Metropolitan Magistrate and another before the Court of Sessions. Both the applications are dismissed.

10)The High Court placing reliance on the observations made in the case of Pooja Batra v. Union of India, [(2009) 5 SCC 296], has concluded, that, a single incident can prove the propensity and potentiality of the detenu to carry out smuggling activities in the future also. It has also observed that the statement of the appellant that he was smuggling foreign currency on the behest of other people for monetary consideration is another factor that requires to be taken note of to arrive at the conclusion that there was propensity and potentiality of the appellant to engage in future with his smuggling activities. The High Court is also of the view, that, if the appellant remains in India, there is possibility that he will be involved in abetment of smuggling activities. Accordingly, dismissed the writ petition. The decision of the High Court has been impugned before us.

24)What emerges from the abovementioned cases is that, even a single solitary act can prove the propensity and potentiality of the detenu to carry on with similar smuggling activities in future. The mere fact that on one occasion person smuggled goods into the country may constitute a legitimate basis for detaining a person under COFEPOSA. For this purpose, the antecedents of the person, facts and circumstances of the case needs to be taken into consideration. In the present case, the respondents seek to rely extensively on the confession statement made by the detenu, where he had admitted to be carrying the foreign currency in return for monetary consideration. The respondents contend that the confession made by the appellant proves that, the appellant is a part of a smuggling ring and hence his detention is warranted under the provisions of COFEPOSA. This submission of the respondent's learned counsel, in our view, has no merit. In the statement made before the customs authorities, the appellant has only narrated his antecedents, the nature of business carried on by him while he was in Singapore and how he was induced to carry the foreign currency by a person who has business dealings in Singapore. In the statement so made, he has not even suggested that he had indulged himself in foreign currency smuggling activities earlier. It is not the case of the respondents that if he is not detained, he would indulge himself in foreign currency smuggling activities and it is their specific case that he may abet the smuggling activity. In matters of personal liberty, the standard of proof needs to be high to justify an order of preventive detention. In our considered view, there were no compelling reasons for the detaining authority to pass the impugned order. Therefore, the order of detention is unsustainable.

30)In our considered view, the submission of the learned counsel for the appellant requires to be accepted. In the instant case as the facts reveal, that, there was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded. Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country. There is higher standard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the fact and circumstances of the case.