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Judgment
P. Sathasivam, J.—The petitioner herein challenges the impugned order of detention, dated 26.12.2005, detaining him under the provisions
of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
Heard Mr. B. Kumar, learned Senior Counsel for the petitioner; Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor for R-1
and R-3; and Mr. P. Kumaresan, learned Additional Central Government Standing Counsel for R-2.
Brief and background facts which led to the detention of the detenu are as follows:
On 18.11.2005, the petitioner/detenu Adham Meera on his arrival at Anna International Airport, Chennai, from Bangkok, was intercepted by the
officers attached to the Customs Department, Chennai, at Customs table No. 14 at the arrival hall of the Airport along with 2 hand baggages and 2
checked in baggages. The detenu declared the contents as electronic goods and the value as Rs. 30,000/-. On examination, the Officers found the
baggages to contain Pioneer car Stereo without panel and Nikon digital camera zoom and assessed the value of the goods as Rs. 7,96,000/-
(CIF) and seized the same under mahazar dated 18.11.2005.
The detenu gave a statement that he studied upto +2, that he knows only Tamil and that he used to go to Singapore and Malaysia to bring
electronic goods. He further stated that one John gave him those electronic goods at Bangkok Airport and asked him to hand over the same to a
person, who would identify him at Chennai Airport, and that the said John offered to pay him a sum of Rs. 10,000/- for the assignment given.
Since the detenu mis-declared the value and quantity of the goods, a case was registered against him under the Customs Act. He was arrested on
18.11.2005 and remanded to judicial custody on the orders of the Court upto 02.12.2005. The detenu�s father was intimated of the arrest by
Telegram. The detenu�s house was searched, however, no incriminating material was recovered. The remand was periodically extended on the
orders of the court.
On 28.11.2005, the detenu sent a retraction letter to the Sponsoring authority, for which, the said authority sent a reply on 07.12.2005. On
28.11.2005, the detenu sent a pre-detention representation to the Law Minister, which came to be rejected on 26.12.2005.
The Detaining Authority passed the detention order on 26.12.2005 and the papers were supplied to the detenu on 30.12.2005. On 31.12.2005,
the detenu sent representations dated 31.12.2005 to the State Government and the Central Government and the same were rejected on
09.01.2006. The State Government confirmed the detention order on 24.03.2006.
Mr. B. Kumar, learned Senior Counsel appearing for the petitioner, at the foremost, submitted that though the seized goods were of lesser
value, the officers ascribed excessive value to the same. He further contended that there is no basis or proper methodology for fixing the value as
arrived and that, in spite of the request made by the detenu through his representation to the Sponsoring Authority to consider and re-value the
seized goods, the said Authority did not take any positive effort to re-value the goods seized under the mahazar.
Learned Senior Counsel by pointing out that the Detaining Authority while arriving at the subjective satisfaction, relied upon certain documents and
specifically stated that the value of the goods had been adopted as per contemporary prices being adopted for similar goods at the Airport; would
submit that, when the detenu made a specific request to apprise him of the mode adopted to calculate the value of the goods seized by supplying
him the necessary documents, the Detaining Authority, considering the vitality of the request/claim, should have supplied those materials, and failure
to do so would dismantle the edifice of the detention order.
On the other hand, learned Additional Public Prosecutor submitted that all the relevant and relied upon materials were supplied to the detenu
and there is no procedural error in passing the order of detention, accordingly, he prayed for dismissal of the Petition.
Inasmuch as the two contentions raised by the learned Senior Counsel stem from the same theme, we decide the merit or otherwise of both the
submissions together.
Since the detenu had declared the goods brought in the baggages as Rs. 30,000/- and the Department valued the same as Rs. 7,96,000/-, the
mode of valuation is the relevant factor. Page No. 1 of the Paper Book supplied to the detenu contains copy of the mahazar dated 18.11.2005.
Annexure to the same refers to various items of the goods brought in by the detenu and the CIF value in Rupees. The grand total value of the items
is given as Rs. 7,96,000/-. It is the specific case of the detenu that a representation/retraction along with earlier adjudication order was sent to the
officers of the Customs stating that the goods are of lesser value, yet, the same have been excessively over-valued. In paragraph No. viii of the
grounds of detention, the Detaining Authority has referred to the representation dated 28.11.2005, wherein the detenu has specifically stated that
the value mentioned in the mahazar is excessive and also retracted the statement obtained from him on 18.11.2005 stating that it was obtained
under coercion. No doubt, a reply was sent by the Customs Department on 07.12.2005 denying his allegation. It is also stated that the detenu did
not complain to the Magistrate at the time of remand about any threat or coercion. In the reply, it is stated that the value of the goods had been
adopted as per the contemporary prices being adopted for similar goods at the Airport. As rightly pointed out by Mr. B. Kumar, learned Senior
Counsel, considering the statement of the Detaining Authority regarding valuation and valuation being the relevant factor for arrest and detaining the
detenu under the COFEPOSA Act, it is but proper for the authority to have furnished the details sought for. It is rather surprising that nowhere in
the detention order, any such detail has been furnished. We have already referred to the Annexure to the mahazar, which only specifies the quantity
of goods and the CIF value in Rupees.
It is relevant to note that, in the representation dated 31.12.2005, the detenu has specifically stated that the statement was made under coercion,
hence, the same was retracted on 28.11.2005. By pointing out that the value fixed for the goods is excessive, he requested the authorities that a
revised valuation may be made based on the valuation being made for similar goods at the Airport. In the same representation, the detenu has also
prayed for a copy of the order or proceeding, fixing valuation in respect of similar goods seized at the Airport. In the reply dated 10.01.2006, the
State Government has merely stated that the valuation was made by the Customs Department as per the guidelines that were being followed.
Though in the same paragraph (para No. 3), it is stated that all the details including mahazars were supplied to the detenu, a perusal in that
background would show that no such details as sought for by the detenu are available. Thus, it is clear that the relevant details were neither made
available in the detention order nor supplied to the detenu even after the specific request made in the representation.
In the decision reported in 2005 MLJ 672 (Valiani Mohd. Shafi v. State of Tamil Nadu), while considering similar claim, the Division Bench has
held thus:
In such circumstances and in the light of the said dispute, having relied on the information/statement furnished by the Joint Commissioner of
Customs stating that the value has been adopted in conformity with the valuation procedures as envisaged under Rule 8 of the Rules, it is clear that
the detaining authority has relied on the information furnished by the said officer namely, the Joint commissioner of Customs. Accordingly, it is, but,
proper to supply a copy of the said decision to the detenu in order to make an effective representation with regard to his detention. Failure to
supply the same vitiates the detention order.
In the case on hand, though in the grounds of detention, it is specifically stated,
... that the value of the goods had been adopted as per contemporary prices being adopted for similar goods at the Airport�
such details were neither mentioned in the grounds of detention nor supplied to the detenu even after the specific request made in the
representation. As observed in the said decision, failure to supply the same vitiates the detention order.
In the decision reported in 1992 (2) Cri 43 (Daya Shankar Singh v. Union of India), a Division Bench of the Allahabad High Court has held
that in preventive detention cases, if a detenu asks for some particulars, then an obligation is cast on the Detaining Authority to inform the detenu
whether such material is being supplied to him and if not, then on what ground. It was observed that this was the minimum guarantee which was
guaranteed to a person under Article 22(5) of our Constitution. Consequently, the continued detention of the detenu was rendered illegal.
In HCP No. 3 of 2006, order dated 05.07.2006, the Division Bench accepted similar argument and quashed the detention order.
In the earlier part of our Order, we referred to the specific claim made in the representation of the detenu dated 31.12.2005, which shows that
the detenu sought for the details of the orders passed by the authority in respect of similar goods seized at the Airport. Unfortunately, in spite of
such specific request, a general and bald reply had been sent stating that the valuation was adopted as per the guidelines of the Customs
Department. Courts have held that disposal of the representation of the detenu is not a mere formality and the same has to be considered with an
unbiased mind. It was also held that when several particulars are furnished, it is but proper for the Government to verify those details from the
officers concerned and an order has to be passed after due consideration (vide John Martin Vs. State of West Bengal, ; and A.C. Razia v.
Government of Kerala 2004 SCC 618.
It is useful to refer to the decision of the Supreme Court reported in K. Satyanarayan Subudhi Vs. Union of India, and others, . In that case,
apart from the infirmity in the order of detention, Their Lordships have also noted that the detenu is under detention for over eight months and that
the order of detention is for a period of one year. Considering this aspect along with the other aspect mentioned in the earlier paragraphs, it was
concluded that it is just and proper to quash the order of detention. In the case on hand, the detention order was passed on 26.12.2005 and taking
note of the observation of the Supreme Court in the above referred cases and in view of the reasons mentioned above, we hold that the detention
order is liable to be quashed.
Consequently, the Habeas Corpus Petition is allowed and the impugned order of detention is quashed. The detenu is directed to be set at
liberty forthwith from custody unless he is required in connection with any other case or cause.