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Judgment
P. Sathasivam, J.—The detenu by name Mohamed Sathali Premnasir, who was detained by the impugned detention order, dated
20.9.2004, passed u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of
1974), challenges the said order in this Habeas Corpus Petition.
Heard learned Counsel for petitioner, learned Additional Public Prosecutor for R-1 and R-3 and learned Additional Central Government
Standing Counsel for R-2.
Though several contentions have been raised questioning the impugned order of detention, learned counsel appearing for the Petitioner at the
foremost projected that the detention order is liable to be quashed on the ground of non-application of mind on the part of the Detaining Authority,
since there is no valid order extending the remand of the detenu beyond 07.09.2004.
To substantiate the above contention, learned counsel for the petitioner has taken us through copy of the remand extention order, both English
and Tamil versions, which finds place at page Nos. 102 and 10 3 of the booklet supplied to the detenu. By drawing our attention to the said order,
it is contended that after recording the fact of production of the accused, namely, the detenu, through video conference, the learned Additional
Chief Metropolitan Magistrate, E.O.1, Egmore, Chennai-8, simply adjourned the petition to 21.09.2004 and that no order has been passed
extending the remand of the detenu till 21.09.20 04. According to the counsel, this is clear from the Tamil version of the order, which finds place at
page No. 103 of the booklet. We have gone through both English and Tamil version of the order which finds place at page Nos. 102 and 103 of
the booklet. On verification of the same, we see that a petition was filed for extension of remand beyond 07.09.2004 and though production of the
accused was satisfied through video conference, we do not find any specific order by the Additional Chief Metropolitan Magistrate, extending the
remand beyond 07.0 9.2004, both in the English and Tamil versions of the order. However, learned Additional Public Prosecutor, by drawing our
attention to the Heading made to that order, namely, ""REMAND EXTENSION ORDER DATED 07.09.2004"", would submit that the said
caption makes it clear that the learned Magistrate extended the remand till 21.09.2004 and according to him, there is no flaw in the said order. It is
also brought to our notice the statement made in the counter affidavit filed on behalf of the first respondent. In paragraph No. 6, it is stated as
follows:-
... I submit that in the order, dated 7/9/2004 of the Additional Chief Metropolitan Magistrate, Economic Offence-I, it was stated inter alia, as
adj....to 21.9.2004. But, the detenu has failed to note the superscription of the order which read as Remand Extension Order, dated 7/9/2004 and
therefore it implies that the remand of the accused has been extended upto 21.9.2004 and this document along with its Tamil translation are
available at pages 102 and 103 of the booklet.
We have already referred to the order of the learned Magistrate dated 07.09.2004 (both English and Tamil versions). On going through the
same, we are satisfied that there is no specific order extending the remand beyond 07.09.2004. In such circumstances, the explanation offered in
the counter affidavit, particularly in paragraph No. 6, cannot be accepted. Though learned Additional Public Prosecutor heavily relied on the
caption"" of the order, we are of the view that caption is not the order of the learned Magistrate and we are concerned only with the actual order
passed by the Presiding Officer concerned. As said earlier, looking at any angle, we cannot presume that the learned Magistrate has extended the
period of remand beyond 07.09.2004 as claimed by the learned Additional Public Prosecutor and as explained in the counter affidavit filed before
us. We are satisfied that there is no specific order extending the remand beyond 07.09.2004.
In this regard, learned counsel appearing for the petitioner has also brought to our notice an earlier decision rendered by a Division Bench of this
Court reported in 2002 2 L.W. (Cri) 543 (Karthik v. The Commissioner of Police, etc. and Anr.). It is seen that for a wrong description of the
date (according to the prosecution, it is a typographical error), the Division Bench, relying on an earlier Division Bench decision in S. Chelladurai
Nadar v. State of Tamil Nadu 1992 (1) Crimes 271, quashed the detention order therein on the ground of non-application of mind. The Division
Bench decision relied on by the learned counsel for the petitioner is applicable to the case on hand.
In the light of our discussion, the Habeas Corpus Petition is allowed, quashing the impugned order of detention dated 20.09.2004. The detenu is
directed to be set at liberty forthwith from the custody unless he is required in some other case or cause.