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Judgment
M. Chockalingam, J.—The petitioner herein challenges the impugned order of detention passed by the first respondent in G.O. No.
S.R.1/676-6/2008 dated 6.11.2008 whereby one Naina Mohamed, S/o Haja Alawdeen was ordered to be detained under the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Affidavit filed in support of the petition along with the grounds of attack and the entire materials placed are scrutinized. Heard the learned
Counsel on either side.
The said order of the detention came to be made under the following circumstances:
The petitioner''s husband one Naina Mohamed, on specific information that he was indulged in attempting to smuggle electronic goods, was
intercepted on his arrival at Anna International Airport, Chennai on 9.10.2008. He produced Indian Passport No. Z-1232706, and also flight
ticket bearing No. SQ/ETKT 618 2537084325 boarding card for seat number 44H, counterfoil for baggage tags and customs declaration form.
When he was questioned about the baggage tags, he informed that they were lost, but he was found carrying a hand baggage, and the same was
also checked. Thereafter, entertaining suspicion , he was asked to identify the checked in baggage which he identified that they were three in
number and accordingly they were searched in the presence of two witnesses and found to contain electronic goods, watches and computer parts
as detailed in the mahazar and they were valued at Rs. 10,88,897/-. The said goods were seized under the mahazar. The statement given by him
was recorded. It was found that the smuggling activities were punishable under the provisions of Customs Act and also the goods were to be
confiscated. After arrest, he was produced before the Additional Chief Metropolitan Magistrate, Economic Wing-I for the purpose of judicial
remand and accordingly, he was remanded. Originally, he made an application for bail on 10.10.2008 before the Additional Chief Metropolitan
Magistrate, Economic Offences-I, Egmore,Chennai and the same was dismissed on 22.10.2008. Another application for bail was filed on
24.10.2008 before the Principal Sessions Division, Chennai and the same was pending. Recommendations were made by the Sponsoring
Authority that it was a fit case where the provisions of COFEPOSA Act were to be invoked for making the order of detention. On scrutiny of the
materials, the State was also satisfied that the detenu was indulged in smuggling activities and in order to prevent him from such activities in future,
an order of detention became necessary and accordingly made the order on 6.11.2008, which is challenged in this Habeas Corpus Petition.
Advancing arguments on behalf of the petitioner, learned Counsel made the following submissions:
According to the Counsel, there were lot of discrepancies found in the order of detention which were on the basis of the materials placed by the
Sponsoring authority and the relied on documents. Learned Counsel took the Court to the declaration card alleged to have been made by the
detenu where the value found as Rs. 1 lakh, but when the counter affidavit filed before the Court for making the order of judicial remand, the value
was found as Rs. 50,000/-. Learned Counsel also further took the court to the extract where the value of the property was shown as Rs. 50,000/-
at one place and Rs. 1 lakh at other places. The detenu was actually arrested on 10.10.2008, but whereas in the counter it was shown as
14.8.2008. Learned Counsel would further add that the counter filed in the bail application before the Additional Chief Metropolitan Magistrate,
Economic offences No. I, Egmore, Chennai, the name of the person concerned is denoted as Mohamed Ajmal Khan, but the name of the detenu
is Naina Mohamed. According to the detenu, he used to visit Singapore, Colombo and Hong Kong, but in the translated version of the remand
application furnished to the detenu, it was stated that he visited ''UAE''. The Counsel further added that the detenu traveled through boarding card
for seat number 44H, but in the translated version, it is shown as 44B. The authority while making an order should have applied his mind and
asked for clarification before passing the order under challenge, but the authority has failed to do so. All would indicate that there is non-
application of mind on the part of the authority.
Learned Counsel would further add that after passing the detention order, the same was placed before the Advisory Board. On his appearance,
the detenu has made a representation on 7.1.2009 that he should be allowed to engage a Counsel to assist him. But, the same was not considered
at all. It is true that he is not vested with a right to have the assistance of a counsel. The Apex Court had ruled that when such a request is made,
the Advisory Board should adduce reasons to grant or not to grant. But, in the instant case, the request was not at all considered and that has also
very much caused prejudice to the detenu. Under such circumstances, the order has got to be set aside.
Heard the learned Additional Public Prosecutor on the above contentions and the Court has paid its anxious consideration.
It is not in controversy that under the stated circumstances, the order of detention came to be passed on 6.11.2008. On scrutiny of the
materials, non-application of mind on the part of the first respondent is evident. The order of detention should have been passed by the detaining
authority on scrutiny of the materials placed before the same. As could been seen from page 21 of the booklet, the declaration card, the value of
the goods is found as Rs. 1 lakh, but it is found as Rs. 50,000/- in the counter affidavit filed before the Economic offence-I and in the bail
application filed. It is also found in the counter that the name of the person intercepted was found as Mohamed Ajmal Khan, while the actual name
of the detenu is Naina Mohamed. The Tamil version of the counter affidavit was served upon the party,wherein as pointed out by the learned
Counsel, ''UAE'' is also included along with the name of other countries. But, the detenu is used to visit Singapore, Colombo and Hong Kong. If
the materials had been scrutinized properly, the detaining authority should have asked for clarification. This would indicate either the materials were
not properly scrutinized or if done, clarification was not obtained. So, in either way, the order is defective.
Added circumstances, it is brought to the notice of the Court that after passing the detention order dated 6.11.2008 and after constitution of the
Advisory Board, the detenu was directed to appear before the Advisory Board on 7.1.2009. Accordingly, he appeared and sought for permission
to engage a Counsel to represent him. It is not in dispute that such a representation was actually made before the Advisory Board. On perusal of
the order made by the Advisory Board, nowhere it is indicated that such a representation was considered. The question whether the detenu has
got a right to have the assistance of a lawyer before the Advisory Board came up for consideration before the Apex Court on number of
occasions. On one occasion, the Supreme Court in Smt. Kavita Devidasani Vs. State of Maharashtra and Others, has held as follows:
Though a detenu has no right u/s 8(e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to appear
through a legal practitioner in the proceedings before the Advisory Board, he is entitled to make a representation for the services of a lawyer to
appear before the said Board which is under obligation to consider the same dispassionately in the facts of a particular case. The representation
made by a detenu for legal assistance before the Advisory Board, has to be considered not perfunctorily but with due application of mind, since in
each case of detention, the liberty of an individual is involved.
It would be quite clear that from the very reading of the decision that the detenu is not vested with any right under the provisions of COFEPOSA
Act to appear through his Counsel in proceeding before the Advisory Board. But, he is entitled to make a representation for the service of a
lawyer to appear before the Board and the Board is also under obligation to consider the same. In the instant case, though the representation was
made before the Board to take assistance of a legal practitioner, nothing is found indicating whether such a representation was considered by the
Board at all. Under such circumstances, the decision of the Apex Court, if applied, would also make the order under challenge defective. For all
the above reasons, the order under challenge has got to be set aside and it is accordingly set aside.
Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the first respondent in G.O. No. S.R.1/676-
6/2008 dated 6.11.2008 , The detenu, namely, Naina Mohamed, who is now confined at Central Prison, Chennai is directed to be set at liberty
forthwith unless his presence is required in connection with any other case.