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Judgment
P. Sathasivam, J.—The detenu, who was detained u/s 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (COFEPOSA) challenges his detention order dated 24.5.2004 passed by the first respondent.
Heard the learned counsel for the petitioner as well as the respondents.
Though several points have been raised questioning the impugned order of detention, the learned counsel appearing for the petitioner at the first
and foremost contended that though by order dated 14.5.20 04, the remand of the detenu was extended upto 28.5.2004, a copy of the said
remand extension order dated 14.5.2004 was not furnished to the detenu. It is also the claim of the learned counsel for the petitioner that inasmuch
as the Detaining Authority has relied on the above document, while passing the order of detention, failure to supply the copy of the remand order
vitiate the impugned order of detention. While elaborating the above said contention, the learned counsel for the petitioner has brought to our
notice, Sl. No. 33 in the List of Documents supplied to the detenu, which specifically states that the petition dated 14.5.2004 was filed before the
Chief Judicial Magistrate, Coimbatore for extension of remand of the detenu and order of the Court in English with Tamil translation. The above
referred index portion makes it clear that there was not only a petition dated 14.5.2004 for seeking extension of remand but it also shows that an
order of the Court was passed extending the period of remand upto 28.5.2004.
On the other hand, though copy of the petition dated 14.5.2004 was supplied to the detenu, the order extending the remand upto 28.5.20 04
was not supplied. In this regard, the learned counsel for the petitioner by drawing our attention to the specific reference made in Ground No. 1
(xxviii) would submit that inasmuch as the Detaining Authority has relied on the order dated 14.5.2004 extending the remand upto 28.5.2004, the
detenu is entitled to a copy of the same in order to make an effective representation. Learned counsel for the petitioner also points out that in
paragraph-5 of the Grounds of Detention, the Detaining Authority-State Government has specifically stated that they are very well aware that the
detenu was a remand prisoner in the Central Prison. The same makes it clear that the Detaining Authority was aware of the fact that the detenu
was arrested on 1.5.2004 and remanded upto 14.5.2004 and thereafter, his remand was extended upto 28.5.2004.
Though the learned Additional Public Prosecutor by drawing our attention to a letter D. No. 2074/2004, dated 14.5.2004 of the Chief Judicial
Magistrate, Coimbatore to the Additional Chief Judicial Magistrate (Economic Offences), Madurai submitted that the second paragraph of the said
letter makes it clear that the detenu is in custody and he has to appear before the Chief Judicial Magistrate (Economic Offences), Madurai on
28.5.2004, which we suppose that he was in prison at the relevant time. In the absence of a copy of the order dated 14.5.2004 extending the
remand upto 28.5.2004, we are unable to presume in such a manner as requested by the learned Additional Public Prosecutor., more particularly,
when the Detaining Authority was very much aware of the fact that the detenu was a remand prisoner and relied on the order dated 14.5.2004
extending his remand upto 28.5.2004.
In this regard, learned counsel appearing for the petitioner very much relied on a Division Bench decision of this Court dated 24.9.2 003
rendered in H.C.P. No. 2630 of 2002. While considering a similar question, the Division Bench has observed that the final remand order
remanding the accused is a relied upon document and the same cannot be claimed as mere a reference document. The Division Bench after holding
that the remand extension order is a very essential document and a relied upon document, for the non supply of such document, quashed the
detention order. The Division Bench has further held that in such circumstance, the detenu need not show any further prejudice. Similar view has
been expressed in M. BALAKRISHNAN v. STATE, BY THE SECRETARY TO GOVERNMENT, ETC., reported in 1999 2 L.W. (Crl.) 782
as well as in H.C.P. No. 1231 of 2004 dated 4.4.2005 (P.S.J., & S.K.K.J.,)
In the light of above discussion, we accept the contention raised by the learned counsel for the petitioner and the Habeas Corpus Petition is
allowed. The order of detention dated 24.5.2004 is set aside. The detenu, namely, A. Kannan is directed to be set at liberty forthwith from the
custody unless he is required in connection with any other case.