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Judgment
D. Murugesan, J.—The issues raised in all H.C.Ps are identical and common arguments were advanced by both the learned counsel
appearing for the petitioners and the respondents. Hence, all the H.C.Ps are taken up for disposal by this common order.
The petitioners are the wives of the detenus. The detenus have been clamped with individual order of detention made by the first respondent
dated 10.09.2001 u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of
1974). The grounds of detention suggest that on 10.07.2001, Intelligence Officers of Customs, Chennai detained 12 white coloured diplomatic
mail bags bearing tags serially numbered from AF-122 to AF-133 addressed to the British Deputy High Commission, Chennai, which were
arrived from Singapore by flight SQ 410/10.07.2001 in the presence of witnesses on a reasonable belief that the said bags might contain
contraband. On examination of the said 12 bags on 11.07.2001 by the officers of the Customs Department in the presence of independent
witnesses, 935 numbers of gold bars weighing 109.021 Kgs., gold jewellery weighing 10.111 Kgs., Panasonic GD 90 Cell-phones with
accessories 150 Nos. and RAM cards 1100 numbers were found concealed. As there is no licence or valid document to show the validity of the
import of the said contraband, and there was attempt of smuggling the same by way of passing as ""Diplomatic Cargo"", the contrabands were
seized along with the materials used for packing the bags and covering the goods for further action under the Customs Act 1962 read with Foreign
Trade (Development and Regulation) Act, 1992. It is also suggested in the grounds of detention that on further enquiry, it came to light that those
bags were to be cleared by the detenus as ""Diplomatic Cargo"" and in the past also, the detenus cleared similar eight consignments since May 2001
as ""Diplomatic Cargo"" and transported them by using the British High Commission''s vehicle and handed over to one Thiru. Sali and Thiru. Kadhar
and for such clearance, the detenus received a sizeable income, which was shared by them. On further investigation, it came to light that there were
number of similar activities on the part of the detenus in clearing the parcels under the guise of ""Diplomatic Cargo"" and were handed over to the
said M/s. Sali and Khadar. Considering the chain of activities, the detaining authority was satisfied that it was necessary to detain the detenus under
the provisions of COFEPOSA with a view to prevent the detenus in indulging similar acts in future.
In support of the challenge to the impugned orders of detention, Mr. B.Kumar, learned Senior Counsel appearing for the petitioners would raise
the following points:-
Two documents dated 08.10.2001, which came into existence after the impugned orders of detention dated 10.09.2001 were served on the
detenus only in English. Those documents did not accompany by either covering letters or by additional affidavits of the sponsoring authority.
Further, the detenus were not informed as to the purpose for which those documents were furnished to them. Learned Senior Counsel therefore
submitted that the additional documents served on the detenus without there being covering letters or additional affidavits of the sponsoring
authority and without mentioning the purpose for which they were furnished, would vitiate the orders of detention.
Secondly learned Senior Counsel submitted that the detenus were placed under suspension on 09.08.2001 much prior to the date of orders of
detention. The alleged involvement of the detenus in clearing the bags under the caption ""Diplomatic Cargo"" was possible so long as the detenus
were actually in service of British High Commission office. When the detenus were suspended even much prior to the orders of detention, the
subjective satisfaction found by the detaining authority as to the possibility of the detenus committing the same offence was without any material as
factually there was no such possibility for the detenus to again indulge in the same activities. Hence, learned Senior Counsel submitted that the
subjective satisfaction of the detaining authority as to the possibility of the detenus committing the same offence again in future was not supported
by any materials and consequently, the orders of detention are vitiated on the ground of non-application of mind.
Countenancing the above submissions of the learned Senior Counsel for the petitioners, learned Additional Public Prosecutor appearing for the
State Government would submit that the documents dated 08.10.2001 which were furnished to the detenus in English were not material documents
on which any representation could be made by the detenus as they were furnished to them only as information and those documents were not the
materials for the detaining authority to form his subjective satisfaction to pass orders of detention. Since the documents were furnished to the
detenus only as information, they need not be accompanied by a covering letter or additional affidavit of the sponsoring authority. Learned
Additional Public Prosecutor also submitted that though the orders of suspension of the detenus were made as on 09.08.2001 and the orders of
detention were made on 10.09.2001, the orders of suspension are not material documents to be considered by the detaining authority as the
enquiry revealed that the detenus involved in the similar acts in the past and therefore, the detaining authority formed his subjective satisfaction as to
the possibility of the detenus in indulging same activities in future. The subjective satisfaction of the detaining authority on this aspect was based
upon the materials placed before him involving the detenus in similar activities on number of earlier occasions. Such subjective satisfaction found by
the detaining authority cannot be said to be vitiated merely because of the fact that the detenus were placed under suspension much prior to the
date of orders of detention. On the above submissions, learned Additional Public Prosecutor defended the orders of detention.
Mr.Su.Srinivasan, learned Additional Central Government Standing Counsel also adopted the arguments of the learned Additional Public
Prosecutor.
On the above submissions of the respective counsel, let us now consider the validity of the orders of detention.
The first contention of the learned counsel for the petitioner is that the documents dated 08.10.2001 though furnished to the detenus, the detenus
were not informed the purpose for which those documents were furnished and those documents were also forwarded without there being either
covering letters or additional affidavits of the sponsoring authority. The documents at Page Nos.49 and 50 of the Booklet are the affidavits of the
Superintendent of Customs, Air Intelligence Unit, Air Commissionerate, Custom House, Chennai-1 and the petitions were filed u/s 110(1B) of
Customs Act, 1962, seeking for a direction from the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai to allow the
petitioner to draw representative samples of the Gold Biscuits, God Jewellery and RAM cards seized in the case and documents at Pages 51 and
52 are the Tamil version of the said documents. Those two documents dated 08.10.2001 came into existence subsequent to the orders of
detention dated 10.09.2001 and were served on the detenus on 18.10.2001. Learned Additional Public Prosecutor is not in a position to dispute
the fact that though those two documents were served on the detenus, they were neither accompanied by covering letters or additional affidavits of
the sponsoring authority. It is also not stated as to for what purpose those documents were served on the detenus. It is the submission of both the
learned Additional Public Prosecutor and the learned Additional Central Government Standing Counsel that those documents were furnished to the
detenus only as additional information. Hence, those documents should be considered as materials that were furnished to the detenus as additional
materials in support of the orders of detention.
The Apex Court, in the judgment reported in State of Tamil Nadu Vs. Senthil Kumar and Anr, considered a similar question of additional
materials furnished to the detenus unsupported by covering letter. In that case, three documents were placed before the Advisory Board as well as
the Government at the time of confirmation of the order of detention. Those documents were furnished to the detenu without covering letter,
indicating as to who furnished, and the purpose for which they were sent to the detenu. The order of detention was set aside by the High Court on
the ground that the materials served on the detenu did not accompany with any covering letter, disclosing the purpose for which the materials were
furnished to the detenu. When the above order came to be challenged, the Apex Court held as under:-
Now adverting to the facts of this case, it is not in dispute that grounds of detention were served on the detenu within the specified time. The
documents in question given to the detenu are not supplemental or additional grounds but additional material in support of the grounds already
conveyed to the detenu.
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"".
While considering a similar question as to the additional document furnished without covering letter and without mentioning the purpose for
which it was supplied, a Division Bench of this Court in the judgment reported in RABIYATHIL PATHAVIA ..VS.. THE STATE
GOVERNMENT OF TAMIL NADU (2001 (3) C.T.C. 83) held as follows:-
Whenever a document is served on a detenu, the detenu should in a position to know the purpose for which it is served on him, especially, when
such documents are served after initial order of detention was passed against him. So long as the purpose for which the documents are served on
the detenu is not disclosed, it will certainly create confusion in the mind of the detenu in the matter of submitting an effective representation, thereby,
causing infraction of the constitutional right of the detenu as envisaged under Article 22(5) of the Constitution.
In view of the above settled law, it has to be held that vital documents which were sent to the detenus and were placed before the Advisory
Board as well as before the Government at the time of confirmation of the impugned orders of detention without covering letter, indicating as to
who furnished them and the purpose for which they were given to the detenus, the detenus would not be in a position to make effective
representations as they were kept in darkness. In such circumstances, the detenus were entitled to sustain the claim of violation of principles of
natural justice, even without showing any specific prejudice. The object of giving information to the detenus as to the purpose for which the
documents are furnished to them is based upon the solemn principle of giving the earliest opportunity to the detenus to make effective
representation and in the absence of such materials, it has to be necessarily held as an infringement of the rights confereed on the detenus under
Article 22(5) of the Constitution of India.
We find every force in the submissions of the learned Senior Counsel appearing for the petitioners that in the absence of disclosure of the
purpose for which the two documents were served on the detenus, they were deprived of their constitutional right to make an effective
representation on the basis of the documents furnished to them as they are placed in a confused state of mind without knowing the cause of those
documents. In the light of the above discussions, we are unable to accept the submissions made by the learned Additional Public Prosecutor and
the learned Additional Central Government Standing Counsel.
Coming to the next submission made on behalf of the detenus as to the non-placement of the orders of suspension dated 09.08.2001 before
the detaining authority, it is to be noted that the said issue is well settled by the Apex Court in the judgment in Criminal Appeal No.305 of 1994
(SMT. JYOTI NANDLAL MANGALANI ..VS.. STATE OF MAHARASHTRA AND OTHERS) wherein the Apex Court held as follows:-
In our opinion, the failure on the part of the sponsoring authority to place the order of suspension before the detaining authority and the non-
consideration of the effect of the order of suspension by the detaining authority, before making an order to detain the detenu with a view to prevent
him from continuing with his prejudicial activities, has vitiated the order of detention"".
Learned Additional Public Prosecutor relied upon the judgment of the Supreme Court in the case of Smt. Kusum Chandrakant Khaushe Vs.
L. Hmlinglianan and others, wherein the Supreme Court has repelled the contention that non-placement of the order of suspension would vitiate the
order of detention. In that case, the Supreme Court was considering the non-placementof the orders of suspension before the detaining authority to
form his subjective satisfaction while taking into consideration the propensity and potentiality to go on abetting smuggling activities inspite of being
suspended and hence held that non-placement of suspension orders had caused no prejudice to him. However, the said judgment was considered
by the Apex Court in Crl.Appeal No.305 of 1994 (referred supra) and the same has been distinguished as follows:-
The facts in the case of KUSUM CHANDRAKANT KHAUSHE (referred supra) on the basis of the contention raised in the counter affidavit
were entirely different and the Court had repelled the argument on a perusal of the counter affidavit in that case. Therefore, the observations made
in that case were peculiar to the facts of that case and did not lay down as a general proposition of law that the detaining authority is not obliged to
consider the effect of an order of suspension of a government servant while ordering his preventive detention to prevent him from continuing with
the prejudicial activites. It has not been laid down in that case that the non-consideration of the effect of the order of suspension by the detaining
authority and the failure of the competent authorities to place the order of suspension before the detaining authority is inconsequential.
In view of the above law laid down by the Apex Court, the reliance placed over the said judgment by the learned Additional Public Prosecutor in
support of his submissions cannot be accepted.
Learned Public Prosecutor further relied upon the judgment of the Apex Court in the case of PUSHPADEVI ..VS.. M.L. WADHAVAN :
1987CriLJ1888 That was a case where the Apex Court, on the question of granting parole to the detenu held that due to the spectacular
achievements in modern communication system, a detenu, while on parole, can sit in a room, in a house or hotel and have contacts with all his
relations, friends and confederates in any part of the country or even any part of the world and thereby pursue his unlawful activities if so inclined.
The facts of the present case are entirely different.
In the case on hand, even according to the detaining authority, the detenus had access to the bags brought under ""Diplomatic Cargo"" only by
virtue of their positions held in British High Commission Office and they were able to reach the place to clear those bags under the guise of
Diplomatic Cargo"". Once the detenus were suspended, their access to the place in the Airport to remove the bags is a total impossibility as they
will not be allowed to clear the bags as they are no longer employed in British High Commission and the fact of orders of suspension was within
the knowledge of the customs authorities. In the absence of such possibility, the orders of suspension will have a definite bearing on the detaining
authority before arriving at the subjective satisfaction as to whether the detenus will or will not indulge in similar acts in future. Hence, it has to be
held that non-placement of the orders of suspension had effectively prevented the detaining authority from forming the subjective satisfaction as to
the possibility of the detenus in indulging in such activities in future. Therefore, we find every force in the contentions of the learned Senior counsel
for the petitioner that non-placement of orders of suspension before the detaining authority would result in non-application of mind on the part of
the detaining authority to the materials which are crucial and relevant before the orders of detention are passed.
For the above conclusions, we are of the considered view that the orders of detention are not sustainable in the eye of law and are liable to be
set aside and accordingly they are set aside.
In the result, all the H.C.Ps are allowed and the orders of detention dated 10.09.2001 passed by the first respondent in respect of each of the
detenus are set aside. The detenus shall be set at liberty forthwith, unless and until they are required in connection with some other case.