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Judgment
P. Sathasivam, J.—In HCP. No. 56 of 2005, the detenu, R. Selvaraj, who was detained under Sections 3(1)(i) and 3(1)(ii) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, ''COFEPOSA Act''), challenges his detention order
dated 28.12.2004 on various grounds.
In HCP. No. 85 of 2005, the petitioner Zeenath challenges the detention order dated 28.12.2004 passed against her husband Tayez Haroon
under Sections 3(1)(i) and 3(1)(ii) of the COFEPOSA Act.
Since the points involved in both the petitions are one and the same, they are being disposed of by the following common order.
Heard the learned senior counsel for the petitioners and the learned counsel for the respondents.
Though several grounds have been raised questioning the impugned orders of detention, learned senior counsel for the petitioners at the
foremost contended that the detention orders were passed on incorrect basis/facts and there is non-application of mind and also extraneous
consideration; hence, the same are liable to be quashed. He also contended that inasmuch as the detaining authority is not definite regarding the
provision of law alleged to have been violated, the detention order is liable to be quashed on this ground also.
On the other hand, learned Additional Public Prosecutor would contend that there is no procedural error or flaw in passing the impugned
detention orders and the detaining authority is fully justified in ordering detention of the detenus and there is no valid ground for interference.
We have considered the relevant materials as well as the rival contentions. In so far as the first contention is concerned, it is brought to our
notice that the sponsoring authority, during the follow up action, is alleged to have seized 20 MTs of red sander logs from the factory premises of
M/s. Chennai Essential Oils under seizure mahazar dated 18.12.2004. The seized goods were loaded in two vans bearing registration numbers TN
01 Z 6323 and TN 01 M 8973 and the same were weighed as 6920 Kg. & 6520 Kg. totaling 13.440 MTs. It is also brought to our notice that
M/s. Latha Enterprises, Chennai also issued weight certificates on 05.01.2005. Subsequently, the weighed red sanders were handed over to the
Deputy Commissioner of Customs, Ware House, Customs House, Chennai as requested by the sponsoring authority, vide his letter dated
20.12.2004. However, the reading of the grounds of detention shows that the detaining authority has mentioned in the grounds of detention that the
sponsoring authority seized 20 Mts of red sanders from M/s. Chennai Essential Oils, whereas the certificates issued by the Weigh Bridge show that
the total weight of the red sanders is 13.440 Mts. As rightly pointed out, there is a discrepancy in weight between seized goods and weighed
goods. Again, as rightly pointed out, the sponsoring authority failed to give correct information to the detaining authority in respect of the seizure of
red sanders, but the sponsoring authority had placed incorrect facts before the detaining authority, which have influenced the mind of the detaining
authority while passing the detention orders, which amounts to non-application of mind and also leading to extraneous consideration. We have also
perused the weight mentioned by the sponsoring authority as well as the Weigh Bridge report, and we find that both of them differ each other in
quantity. In the absence of clarification or details regarding the same, we are of the view that the claim of the learned senior counsel for the
petitioners that the detention orders were passed merely on the basis of incorrect facts is acceptable. It is also brought to our notice that the weight
certificate containing the correct weight of the seized red sanders falsifying the seizure mahazar dated 18.04.2004 prepared by the DRI Officers at
M/s. Chennai Essential Oils, Chennai was neither placed before the Advisory Board, nor before the confirming authority. There is no explanation
for the same. Though learned Additional Public Prosecutor has claimed that the above mentioned points were not raised in the affidavits filed in
support of the above petitions, it is not in dispute that in HCMP. No. 70 of 2005, this Court permitted the petitioner R. Selvaraj to raise additional
grounds and the said petition came to be ordered even on 06.04.2005. The learned senior counsel for the petitioners has also brought to our
notice that the copy of the additional grounds has been served on the public prosecutor on the same day, i.e., on 06.04.2005. In such a
circumstance, nothing prevented the Additional Public Prosecutor from either filing a counter affidavit or at least getting specific instructions from
the respondents. We agree with the contention raised by the learned senior counsel for the petitioners and we hold that due to discrepancy in
quantity between the seized goods and weighed goods, the impugned detention orders passed by the detaining authority on the basis of the said
incorrect facts cannot be sustained.
In view of our conclusion on the first contention, though the learned senior counsel for the petitioners demonstrated before us about wrong
mentioning of provisions of the Customs Act, we are of the view that it is unnecessary for us to consider the same.
In the light of what is stated above, the impugned detention orders dated 28.12.2004 in both the cases are liable to be set aside; accordingly, the
same are set aside and the petitions are ordered. The detenus in both the cases are directed to be set at liberty forthwith from custody unless they
are required in connection with any other case or cause.