HC sets aside home secy order under COFEPOSA

Calling it "faulty, caution-less and unsustainable", Bombay High Court (HC) has set aside an order of Medha Gadgil, state principal secretary (home), detaining a person under COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act).

Ghalamsalam Abdulla Mubarak was apprehended with another person by an officer of the air intelligence unit at the airport as he arrived from Dubai on August 7, 2011, after fake currency was found in his bag. His passport was impounded and he was jailed.

Justices A P Bhangale and A S Oka recently quashed the detention observing impounding passport was enough to curb potentiality of smuggling. The judges said there was no justification to pass an order of preventive detention when there was no chance of the accused travelling to a foreign country without passport.

The principle emanating from the framework of the Constitution assuring personal liberty and giving fundamental rights to each citizen was that the order of preventive detention being an exceptional measure by way of social defence ought to be used with great care and circumspection, the bench observed. "We conclude the impugned order of preventive detention passed in the present case is faulty, caution-less and unsustainable. We, therefore, allow this petition (filed by wife of Mubarak) by quashing and setting aside the impugned order of preventive detention," the judges said. Mubarak argued the impugned order was issued after an inordinate and inexcusable delay of nine months on May 13, 2012. As such, his detention was malafide.

He contended goods found by Customs belonged to Syed Ali Syed Madar, who was travelling with him on the same PNR number mentioned in the ticket. The goods were packed by him in the place of Karim Baba on way to Dubai Airport.

He said as Sayed was known to him he did not object to goods checked-in in his name. He said he was not aware of the goods till his bag was opened at Mumbai Airport.

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