Charanjeet Singh vs State of Tamil Nadu and Union of India

Arunachalam, J.—Detenu himself is the Petitioner, he has prayed for issue of a habeas for his production before this Court for being set at liberty, after quashing the impugned order of detention dt.27.11.1992 passed by the first Respondent in exercise of the powers conferred by Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended, with a view to preventing the Petitioner from smuggling goods.

Brief facts which led to the passing of the impugned order of detention will have to be stated. Detenu holding a Singapore Pass- Port, arrived at Madras International Airport on 16.11.1992 by Singapore Airlines Flight No. So.410. After completion of immigration formalities, he opted for the Customs green channel where he proceeded along with his baggage consisting of a black colour handbag marked "SIA group Sports Club". He declared to the Superintendent of Customs that he had nothing to declare. Soon thereafter, Petitioner was intercepted by customs officers on reasonable suspicion that he might have concealed gold either on his person or in his baggage. Personal search of the detenu revealed that he had concealed in his shoes, right and left, gold bars-in all 20 gold bars weighing 2332 grams were recovered. The search of the hand bag fed to recovery of some incriminating documents namely, key card of Chola Sheraton, a computer printout regarding the travel and three Singapore Airlines tickets bearing certain numbers. Since the Petitioner did not have a permit or licence for import of gold, the Petitioner was questioned, His voluntary statement was recorded soon thereafter. The Petitioner was arrested, produced before the concerned court and bail application before the Magistrate was dismissed, while a similar bail application was pending before the court of sessions. After follow up action, the impugned order of detention was passed on 27.11.1992.

Mr. Habibullah Basha, learned Senior Counsel, appearing on behalf of the Petitioner, restricted his submissions to one single ground though several grounds form part of the Writ Petition. Learned senior counsel pointed out in the grounds of detention the following passages.

The Search of the black colour handbag carried by us led to the recovery of used personal effects and some incriminating documents viz., key card of Chola Sheraton, a computer printout regarding the travel and three Singapore Airlines tickets bearing numbers I 618 9400653372 2, 2 618 9400653372 6 and 3 618 9400653372...... The aforementioned incriminating documents recovered from your handbag and your travel documents consisting of the Boarding Pass, Passenger ticket (No. 618, 9400, 653, 372, 5 of Singapore Airlines) and the Customs clearance card were also seized under the same Mahazar.

... ... ... From the above materials, the State Government are satisfied that you have indulged in smuggling goods....... The State Government are also satisfied that on the facts and materials mentioned above, if you let to remain at large, you will indulge in such activities...

On the basis of the aforestated grounds of detention the argument was, that incriminating documents referred to and relied upon by the detaining authority had not been furnished to the Petitioner to facilitate his taking an effective representation against his detention.

Mr. I. Subramaniam, learned Additional Public Prosecutor, while countering the arguments of Mr. Habibullah Basha, submitted that copies of key card and three Singapore Airline tickets have been furnished to the Petitioner though the computer printout, had not been so furnished. However, he submitted that computer printout was totally an innocuous document and the detaining authority had erroneously stated that the said document was incriminating and that this Court can satisfy itself that the computer printout cannot be treated as an incriminating document. He produced before us the computer printout.

Mr. Habibullah Basha, learned Senior counsel at this stage placed before us the representation of the Petitioner dt.''Nil'' which was received by the detaining authority on 24.12.1992. The representation was rejected on 7.1.1993. In the representation the detenu has asked for supply of those incriminating documents mentioned in the grounds of detention and he has specifically asked for computer printout which has been taken against him to detain him preventively. While rejecting the representation on 7.1.1993, the detaining authority has stated that all documents relied upon have already been furnished to the detenu.

We are unable to appreciate the stand taken by the State. If the detaining authority, while passing the impugned order of detention, was of the opinion that the computer printout was an incriminating document, for he has stated so at least in two places in the grounds of detention, there is no reason why the incriminating document had not been furnished to the detenu. Even if it be that the said document was not supplied to the detenu along with the grounds of detention, the State Govt. owed a duty to have supplied the said document to the detenu, when he had specifically requested for supply of the same, on the ground that the said document had been taken as an incriminating document to put him behind the Bars preventively. If as submitted by the learned Additional Public Prosecutor the statement made by the detaining authority, that the document was incriminating is erroneous, it only exposes non-application of mind by the detaining authority while considering the document. It is not the case of the State that the said document was not relied upon. A copy of the computer printout has been placed before us. It only snows certain code words which we cannot decipher for ourselves. It may be possible for the detenu to put forth his case before the Advisory Board on the basis of the code words in the computer printout. This document has not only been relied upon by the detaining authority, but has been specifically mentioned as an incriminating document. Hence this document ought to have been supplied to the detenu at least when he had asked for the supply of the same. Looked at from either angle, we are satisfied that there has been non-application of mind of the detaining authority, if he had erroneously described the document as an incriminating document and as if it was incriminating and relied upon, then the detenu has certainly been deprived of an opportunity of making an effective representation. Article 22(5) of the Constitution to our mind does stand violated. We have no alternative other than setting aside the impugned order of detention. The Petitioner (detenu) shall be set at liberty forthwith unless he is required otherwise. The writ petition is allowed.