AI Structured Summary
Not yet generated for this judgment
Judgment
M. Chockalingam, J.—The petitioner herein challenges the impugned order of detention passed by the first respondent in G.O. No.
S.R.1/747-4/2008 dated 18.11.2008 whereby one Sadhik Basha S/o Kareem 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:
(i) On 7.10.2008, the detenu Sadhik Basha, holder of Indian Passport arrived from Singapore along with two checked-in-baggage and one blue
colour shoulder bag as hand baggage. He was intercepted by the Intelligence Officer attached to the Air Intelligence Unit of Air customs when he
was proceeding towards ''exit'' by crossing Green Channel, that he might be attempting to smuggle electronic goods of high value in his baggage.
On enquiry, the detenu stated that he was carrying goods worth Rs. 50,000/-. Not satisfied with the statement, the officer in the presence of two
independent witnesses, make a detailed examination on his hand and checked- in baggage one by one and when opened in the presence of
witnesses, they found to contain 8 Nos. Sony Digital Camera DSC-W150, 3 Nos. Sony DCR-VX-2100 E Video Camera Recorder, 20 Nos.
Nikon Cool Pix S210 and 4 Nos. Pioner DEH 3050 UB car stereo panels. On personal search, no incriminating document was recovered. When
he was questioned as to whether he was in possession of any valid document for the legal import or the above said electronic goods, he replied in
negative. He further added that he was not aware of the value and he will agree for the value to be adopted by the Department. The value of the
goods was fixed at Rs. 9,07,050/-. Since he was attempted to smuggle the electronic goods into India by way of gross mis-declaration thereby
contravening the provisions of Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992, the goods were seized
under a mahazar. The statement which was given voluntarily was recorded in the presence of witnesses. All the goods were confiscated u/s 111 of
the Customs Act. He was arrested on 8.10.2008 and produced before the Additional Chief Metropolitan Magistrate, E.O.I, Chennai, and
remanded to judicial custody and the period of remand was also extended then and there. A telegram dated 8.10.2008 was sent to as to the
confirmation of arrest and reasons therefor. A search was made in his residence on 8.10.2008. A bail application was filed on his behalf on
8.10.2008 before the Additional Chief Metropolitan Magistrate, E.O.I, Chennai and the same was dismissed on 22.10.2008. Thereafter, another
bail application was filed before the Principal Sessions Judge, City Civil Court, Chennai and the same was dismissed on 10.11.2008 and thereafter
one another bail petition dated 13.11.2008 was filed before this Court and the same is pending for disposal.
(ii) Pending disposal, a representation was sent by his mother on 24.10.2008 to the State Government. On consideration, the same was rejected.
Under such circumstances, the State Government satisfied that he indulged in smuggling of goods and also felt that there arose necessity that an
order of detention is to be passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
and in order to prevent him from indulging in such prejudicial activities in future, an order of detention became necessary and accordingly made the
order on 18.11.2008, which is challenged in this Habeas Corpus Petition.
Assailing the order, the learned Counsel for the petitioner would submit that the order of detention came to be passed on 18.11.2008. It is not
in controversy that the detenu made a bail application before the Additional Chief Metropolitan Magistrate E.O.I, Court, Chennai on 8.10.2008
and the same was dismissed, subsequently another bail application was filed on 13.11.2008 and the same was pending. When the copies of
materials and the relied upon documents were furnished to him, the fact as to the first application and its dismissal and the second application and
its pendency were not actually incorporated and hence the order is defective. This fact was brought to the notice of the authority by way of
representation. It is averred in the affidavit filed in support of the petition, but this has not been answered by the State Government. Further the
learned Counsel would further add that though a bail application was filed on 13.11.2008 and the same was pending before this Court, the
authority has made the following observation:
The State Government are aware of the fact that he was in the Central Prison, Chennai as remand prisoner that his remand is for the period
specified in law and he would be released on statutory bail thereafter. The Government are also aware that he would likely to file another bail
petition in the same Court or before the Higher Court and there was likelihood of he being released on bail.
When the bail application was actually pending before the High Court, such an observation that he might have filed another bail application would
clearly indicate the non-application of mind on the part of the detaining authority.
Learned Counsel for the petitioner would further add that a representation was made on behalf of the detenu and the same was rejected after a
period of 93 days. It is quite clear that the relied upon documents should have been served upon the detenu within a period of five days, but the
delay has been occurred which caused prejudice to the detenu.
Added further the learned Counsel, as to the date of representation stated in Page 5 of paragraph 10 of the detention order, it does not speak
about the date when it was rejected, but it would contain only the Month as November and year as 2008, Thus, when it was actually rejected, the
date was not made known to the detenu.
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 20.1.2009 that he should be allowed to engage a counsel to assist him. But, the same was not considered
at all. It is true that the detenu 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, on all the above grounds, the order of detention 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 the order of detention came to be passed by the first respondent on 18.11.2008 under the facts and circumstances
referred above. A perusal of the grounds of detention in Page 5 of Paragraph 9 reads as follows:
The Court in its order dated 10.11.2008 has dismissed the above bail application. You have filed another bail application dated 13.11.2008
before the High Court, Chennai which is pending for disposal.
But, as rightly pointed out by the learned Counsel for the petitioner, the above lines have not been found in the translated version, thus as rightly
pointed by the learned Counsel that when the representation was made, this mistake was also brought to the notice of the authority. It is also
averred in the affidavit filed in support of the petition, but no reply was forthcoming from the State. The translation copy has to be served on the
detenu in the language known to him, so that he could understand , but in the instant case though the copy of the order was actually served on him
in the language known to him, the omission of this part would be clearly indicative of the fact that he was not able to understand the order in full
and though a representation was made in this regard, no reply was given. All would go to show that the order of detention is defective. Apart from
that, it is also an admitted position that the bail application was filed on 13.11.2009 before this Court, while the matter stood thus, the authority has
averred in its order that he would likely to file another bail application before the same or other court and hence there is likelihood of he being
released on bail. This observation can only be stated as an expression of impression in the minds of the authority, who made the order. While a bail
application was actually pending in this Court, no question of filing another bail application would arise and thus it can be stated that the said
observation is premature and the order would suffer on this ground.
Further, when the law would mandate that the relied upon documents must be served upon the detenu within the statutory period of five days,
but in the instant case, the documents have been served after 93 days. Added further even the date of rejection of representation is not found in the
order, but it was stated as --/11/2008 and even though it was brought to the notice of the authority by way of representation, the date of order of
rejection remains unknown.
Above all, when the detenu appeared before the Advisory Board on 20.1.2009, he has also made a written representation to have the legal
assistance for the reasons stated before the same. The order of approval made by the Board is also perused by the Court. There was an occasion
to consider the questions whether the order of detention must be placed before the Advisory Board and whether legal Assistance has got to be
granted, it came up for consideration before the Apex 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.
For all the above reasons adduced which in the considered opinion of the court would be sufficient to set aside the order of detention.
Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the first respondent in G.O. No. S.R.1/747-
4/2008 dated 18.11.2008, The detenu, namely, Sadhik Basha, 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.
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.