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Judgment
N. Dhinakar, J.—The petitioner is the detenu. He challenges the order of detention passed by the first respondent, by an order dated
18.6.2003, and the grounds leading to his detention are as follows.
On 3.6.2003, the detenu, who is a holder of Srilankan passport, arrived at Anna International Airport, Chennai from Singapore. After
completing the immigration formalities and carrying one Diplomat briefcase and two checked-in-bags, he proceeded out of the Customs arrival
hall, where he produced the Customs declaration slip declaring that he had one AC Blower unit worth 240 Singapore dollars. He passed through
the exit and when he was about to walk out, he was intercepted by Customs Intelligence Officers. They asked him about the contents of his
baggage and the detenu told them that he is having only one AC indoor unit valued at 240 Singapore dollars. The Customs Officers were not
satisfied with his reply. The detenu was, therefore, brought to the Air Intelligence Unit room for detailed examination and in the presence of
witnesses, the detenu identified himself as well as the three pieces of baggage which he was having. The Intelligence Officers opened the baggage
and found two nos. of Panasonic LCD Projector PTLC 55E. As the suitcase was found to be unusually heavy, it was subjected to thorough
examination and was found to contain a bottom zip and on opening, they found 18 newspaper covered bundles. They were opened, which
contained 30 nos. of Hynix 256 MB Rams each. Totally 540 numbers of Hynix 256 MB Rams were recovered from the suitcase. They also found
one ""O General"" indoor model AOG12ASJW unit. When the black colour briefcase was opened, it contained his personal effects. Search of the
detenu was also made and it resulted in the recovery of a Mustafas Foreign Exchange transaction voucher bearing number 00302870, one Nokia
6510 cellphone, one Motorola talk about cellphone both with SIM cards and car keys. He also admitted that the car keys were for his Silver
colour Hyundai Accent car bearing Registration No. TN-07-Q-6823 and identified the car which was in the parking area. His car was searched in
the presence of witnesses, which led to the recovery of one Hynix Ram chip, one cheque book No. MSBL 253 413151 consisting unused cheque
leaves from nos.413165 to 413175. As the contraband, found in possession of the detenu, was brought without any declaration or valid document
with a view to evade duty, they were seized under a mahazar attested by witnesses. The total value of the seized contraband is Rs. 11,38,500/-.
He also gave a statement before the Customs Officer at Anna International Airport, Chennai giving all the details. The said statement was
recorded. He was arrested on 4.6.2003 and produced before the Additional Chief Metropolitan Magistrate, E.O.I, Chennai, who remanded him
to judicial custody till 19.6.2003. Later, his residential premises was also searched which resulted in the recovery of some documents, which are
not relevant to the present detention. An intimation was sent to his mother about his arrest and remand on 5.6.2003. The Deputy High
Commissioner of Srilanka was also informed about his arrest. Thereafter, he was served with the detention order on 18.6.2003, and the grounds
of detention and documents were supplied to the detenu on 19.6.2003. The detenu sent representations to the State and Central Governments on
26.6.2003 and 27.6.2003 respectively. The Central Government rejected the representation of the detenu on 4.7.2003, while his representation
was rejected by the State Government on 9.7.2003. After this, additional set of documents viz., search warrant and mahazar both dated
14.7.2003, were supplied to the detenu on 16.7.2003 along with a covering letter dated 15.7.2003, as could be seen from pages 21 to 28 of the
booklet. On 18.7.2003, he was served with some more documents along with a covering letter dated 17.7.2003. On 30.7.2003, third set of
documents viz., summons and statements of Sri. Karunanithi, Amaladass Nehru, Rajasekaran and others were supplied to the detenu with a
covering letter dated 29.7.2003. On 7.8.2003, the detenu was supplied with summons and statement of Rajasekaran being the fourth set of
additional documents along with a covering letter dated 6.8.2003. He was also informed that the Advisory Board is to meet on 7.8.2003 and he
appeared before the Advisory Board on the said date and submitted his representation. The representation was forwarded to the State
Government, which rejected it on 25.8.2003 and the confirmation order was also passed on 5.9.2003.
Learned counsel for the petitioner assails the order of detention on the ground that when he was served with the additional sets of documents on
four different dates with covering letters, he was not informed as, at whose instance they were served upon him, the purpose of their service and
whether the said documents are going to be placed before the Advisory Board as well as before the confirming authority, and the detenu having
been not furnished with such details, he was prevented from making an effective representation and it has caused confusion in his mind, which
vitiates the order of detention. In support of his plea, he relies upon the judgments of the Supreme Court in The State of Bombay Vs. Atma Ram
Sridhar Vaidya, "" and in ""STATE OF TAMIL NADU v. SENTHIL KUMAR 1999 SCC 299.
On the above contention, we have heard the learned Additional Public Prosecutor Mr. A. Navaneethakrishnan for the first and third
respondents and also Mrs. Vanathi Srinivasan, learned Additional Central Government Standing Counsel for the second respondent. Mr. A.
Navaneethakrishnan, learned Additional Public Prosecutor, countering the argument of the petitioner, submits that the additional sets of documents
furnished to the detenu on four different occasions have no nexus to the grounds of detention and since the additional materials, in support of the
grounds, were already conveyed to the detenu, he cannot have any complaint to assail the order of detention. In support of his plea, he relies upon
a Full Bench judgment of this Court in "" K. Velu Vs. The State of Tamil Nadu and Others, "".
We have carefully considered the rival contentions and perused the materials placed before us. The learned Additional Public Prosecutor had
taken a stand that the four sets of documents which were furnished to the detenu have no nexus to the grounds of detention and, therefore, the
order of detention is not vitiated. In view of the above stand, it had become necessary for this Court to first consider as to whether those
documents have any nexus to the grounds of detention. Since we have already extracted the grounds of detention and also the nature of documents
supplied to the detenu on various dates, we feel, it is not necessary to repeat the same at this stage once again. The first set of documents are found
at pages 23 to 28 in the booklet. Similarly, the second set of documents are found at pages 31 to 40, the third set of documents are at pages 43 to
84 and the fourth set of documents are at pages 87 to 108 in the booklet supplied to the detenu. We feel that it is not necessary to refer to all the
documents since we are of the opinion that it will be sufficient to refer to only the third set of documents found at pages 43 to 84, which were
supplied with a covering letter dated 29.7.2003, which is found at page 41 in the booklet. Page 43 is the summons issued by the Superintendent of
Customs, Rummaging and Intelligence Unit to one R. Karunanidhi of Neelankarai, Chennai asking him to appear for producing the relevant
documents in respect of an enquiry that is being conducted at 11.00 a.m. on 28.7.2003 in connection with seizure of computer parts and electronic
goods valued at Rs. 11,38,500/- from David Christopher Rajadurai (the detenu) on 3.6.2003. Page 51 is another summons sent to A.
Amalasdoss Nehru with similar direction that he should appear before the Superintendent of Customs, Rummaging and Intelligence Unit at 11.00
a.m. on 29.7.2003 in connection with seizure of computer parts and electronic goods valued at Rs. 11,38,500/- from David Christopher Rajadurai
(the detenu) on 3.6.2003. Page 59 is another summons issued to one R.D. Rajasekaran with similar instructions to appear before the concerned
Officer, so that he could be enquired in connection with the contraband seized from the detenu. The fourth set of documents were given to the
detenu by a covering letter dated 6.8.2003 and those documents are found in the booklet from pages 87 to 108. A perusal of page no.87 of the
booklet shows that it is the summons issued to one R.D. Rajasekaran of Palavakkam with a direction to appear before the Superintendent of
Customs for the purpose of enquiry in connection with the seizure of contraband from the detenu. In fact the said R.D. Rajasekaran was
questioned in detail and they were recorded by the Officer concerned in question and answer format. They are seen annexed to the booklet from
pages 93 to 107. We have perused all the documents and more particularly, the statement of R.D. Rajasekaran. When he was specifically asked
whether he has any bank accounts, he gave an answer stating that he has three bank accounts, and the bank account at State Bank of India was
opened at the instance of the detenu. He has also stated that he has financial transactions with the detenu. He went on to admit that the detenu used
to inform him after depositing money in his account and he used to sign blank cheques given to him by the detenu and he was aware of the amounts
being withdrawn by the detenu. He has also admitted that he has filled up other details as instructed by the detenu. He added, that he was
promised by the detenu, that he will be taken to United Kingdom for employment. The said Rajasekaran gave an answer to question no.10 that
Karunanithi, to whom summons were also sent, also belongs to his village and that he was informed by the said Karunanithi that he has received
the summons from the Customs Office and finally added by saying that the passbook of his account at the State Bank of India is in possession of
the detenu. The statement of Rajasekaran in the form of answers to the questions asked, therefore, show that the detenu and the other three
persons including Rajasekaran were acting hand in hand in several transaction, and Rajasekaran opened an account in the State Bank of India at
the instance of the detenu, and that he used to sign blank cheques and that the detenu used to withdraw the amounts from his account. In the
background of these materials, we cannot, but, hold that they have nexus to the grounds of detention and they are additional materials in support of
the grounds already conveyed to the detenu.
We have already answered that the documents which were subsequently furnished to the detenu have nexus to the grounds of detention and
once we arrive at that finding, then, it becomes necessary for the authorities concerned to have informed the detenu as to whether those documents
are going to be placed before the Advisory Board or not. The covering letters, which we have perused and referred to in this order, show that
there is absolutely no whisper as to whether those documents will be placed before the Advisory Board. At this juncture, we have to refer to the
judgment of the Full Bench of this Court in K.Velu''s case (supra). The Full Bench, after considering the judgment of the Supreme Court in The
State of Bombay Vs. Atma Ram Sridhar Vaidya, , has observed ""that the grounds of detention were already served on the detenu within the
specified time. However, the documents in question given to the detenu were not supplemental or additional grounds but additional material in
support of the grounds already conveyed to the detenu. Treating them as additional material in support of the grounds, the Apex Court went on
further to hold that the State had acted in conflict with the safeguard of giving the earliest opportunity to the detenu to make an effective
representation inasmuch as the documents were sent to him in a casual manner without a covering letter and without being told for what purpose
they were sent to the detenu and without mentioning that they would be placed before the Advisory Board as well as the Government in
connection with the confirmation of the order of detention. It was consequently held that the detenu was deprived of his right to make an effective
representation to the Government."" The said view was later reiterated in Senthil Kumar''s case reported in 1999 SCC 299. The Full Bench
referred to the above two judgments and ultimately came to the conclusion that, on the facts of that case before it, the documents are self-
explanatory and only when the documents have no nexus with the detention thereby, it was not necessary for the detaining authority to explain the
purpose for which the documents were supplied and once the documents have no nexus such a responsibility goes away. The Full Bench went on
to state that in order to attract infringement of Article 22(5) of the Constitution, the following factors are a must viz., there should be a supply of
document, which is in the nature of additional material in support of the grounds already supplied to the detenu meaning thereby, that such
documents should have relevance to the detention aspect or nexus with the detention or should have some connection with it. According to the Full
Bench, if such document is supplied during detention then, however, an adequate care must be taken to see that the detenu is not confused and for
this, wherever necessary, the authorities may explain in a separate covering letter. The law, therefore, is well settled that if any additional materials
which have any nexus to the grounds already conveyed to the detenu, must be served with a covering letter informing him of the reasons as to why
those documents are being supplied. In the case on hand, the authorities did not inform the detenu as to the purpose for which the four sets of
additional documents were furnished to him. In this connection, we have to note the written representation of the detenu to the Advisory Board
when it met on 7.8.2003. In the said representation, he has expressed his grievance in paragraph 4(ii) and (iii), which is as follows:-
Subsequent to my detention, the jail authorities supplied some documents along with the covering letters dated 15.7.2003 and 17.7.2003 of the
Assistant Commissioner of Customs. But I was not informed as to why the two set of documents were furnished to me respectively on 16.7.2003
and 18.7.2003 and I was not even informed whether those documents are relied upon the detaining authority. Further the authorities have not
informed me whether those additional documents would be placed before the Hon''ble Advisory Board and the confirming authority. As the result
of non communication of the above important factual information with regard to the additional documents, I am very much confused and thus I am
not able to make an effective representation against my detention. In view of this reason also, my continued detention is vitiated.
I want to examine my mother at the time of personal hearing before the Hon''ble Advisory Board and therefore I request the Hon''ble Advisory
Board to grant the necessary permission. My mother is kept ready for the purpose of attending the personal hearing along with me. I request the
Hon''ble Advisory Board to send the copies of this representation and the records to the Appropriate Government and Central Government who
are also requested to revoke the detention order.
The Advisory Board forwarded the said representation to the Government. The Government rejected the representation, by an order dated
25.8.2003, and in the reference column, have also referred to the representation given by the detenu dated 7.8.2003. We have perused the
rejection order and nowhere in the rejection order the Government have stated that it had taken into consideration the grievance of the petitioner
and that, it did not even whisper that the additional set of materials supplied to the detenu have no nexus to the grounds of detention. We have also
perused the file to satisfy ourselves. In the file, we find that the additional sets of documents furnished to the detenu were also placed before the
Advisory Board which means, the Advisory Board had an occasion to consider the materials which were furnished to the detenu at a later point of
time after he sent his earlier representations to the Government on 26.6.2003 and 27.6.2003, and in view of the fact that he was not informed that
the materials will be placed before the Advisory Board, he was also prevented from making an effective representation at the time of the meeting of
the Advisory Board. The detaining authority by not informing the detenu as to the purpose for which the additional materials are furnished when he
sent them along with the covering letters has created a confusion in the mind of the detenu as to the purpose for which they were furnished to him
and the detenu also was prevented from making an effective representation on the said additional materials. By not furnishing the additional
materials along with the grounds of detention, the detenu was prevented from making an effective representation on the additional set of
documents, as they were not furnished to him before he sent his representation to the State and Central Governments on 26.6.2003 and
27.6.2003 respectively. He was also not informed that the additional materials will be placed before the Advisory Board and as a result of the
same, he was not in a position to make an effective representation before the Board and the representation given by him in writing on 7.8.2003
before the Advisory Board expressing his grievance was also not considered by the Government in spite of the fact that the said representation
was forwarded to them, as could be seen from the rejection order. All these factors go to show that there is violation of Article 22(5) of the
Constitution, as he had no opportunity of making an effective representation.
The above view, of ours, is strengthened by the observations of the Supreme Court in Senthil Kumar''s case, 1999 SCC 299, which read as
follows:-
Though the documents furnished to the detenu in this case fall in the ""other types"", as the State has acted in conflict with the safeguard of giving the
earliest opportunity to the detenu to make an effective representation inasmuch as the documents were sent to him in a casual manner without a
covering letter and without being told for what purpose they were sent to him and without mentioning that they would be placed before the
Advisory Board as well as the Government in connection with the confirmation of the order of detention, consequently, he was deprived of his right
to make an effective representation to the Government. Whereas punitive incarceration is after trial on the allegations made against a person,
preventive detention is without trial into the allegations made against him. The Courts, therefore, adhere to strict compliance of the procedural
safeguards in every case of preventive detention. A casual or random approach in complying with procedural safeguards more often results in
infringement of the safeguard and vitiates the detention. In this view of the matter, the fact that the wife of the detenu did file a representation is no
answer to the complaint of the detenu that had he been informed that those documents were intended to be placed before the Advisory Board and
that they would be taken into consideration for purposes of passing the order of confirmation u/s 8(f) of the COFEPOSA Act, he would have
made an effective representation. At any rate, he could not have complained that he did not have the opportunity to make an effective
representation.
For the reasons mentioned above, the order of detention is liable to be set aside and the habeas corpus petition is to be allowed.
In the result, habeas corpus petition is allowed and the impugned order of detention dated 18.6.2003 passed by the first respondent is hereby
set aside. The detenu is directed to be set at liberty forthwith, unless he is required in connection with some other case.