AI Structured Summary
Not yet generated for this judgment
Judgment
M. Chockalingam, J.—This petition challenges an order of detention made on27.1.2010, by the first Respondent under the provisions
ofCOFEPOSA enactment.
The Court heard the learned Counsel for thePetitioner and looked into all the materials available andin particular, the order under challenge.
The facts and circumstances which led the firstRespondent to make the order of detention under theprovisions of the COFEPOSA can be
stated as follows:
(a) On 21.12.2009, the Petitioner detenu arrived fromColombo at the Airport along with Sri Lankan passport No. N2376567 dated 15.7.2009.
At the time of interception, inview of the suspicion entertained that he might be carryinggold/contraband goods in his baggage or in person, by
theofficials attached to the Customs Department, he gave a reply in the negative. But the authorities were notsatisfied. Then, in the presence of the
witnesses, thehand baggage when examined, found to contain the usedclothes. When there was a persistent and questioning, thedetenu admitted
that he kept concealed two packetscontaining gold bits in his rectum. He volunteered toeject the same, and accordingly, he ejected the saidpackets
containing four rectangular gold bits which wereactually kept in adhesive wrapped packets.
(b) In the presence of the said witnesses, an approvedgoldsmith examined all the four gold bits and ascertainedthat they were of 24 carat purity,
totally weighing 1177grams and also valued at Rs. 20,18,555/-. The saidgoldsmith issued a certificate dated 21.12.2009, to thateffect. The
witnesses who were present, have also attestedthe said certificate.
(c) Since the detenu attempted to smuggle the goodswithout making a declaration to the customs and alsowithout any permit or license, all the gold
bits wereseized under a mahazar to initiate action under the Customs Act 1962. The travel documents namely the passport and thecustoms
declaration card of the detenu were seized under acover of mahazar. The statement which was voluntarily madeby the detenu, on the same day
before the Customs Officerat Anna International Airport, was recorded wherein he narrated the sequence of events. Thereafter, he was
shownarrest on 22.12.2009, and produced before the AdditionalChief Metropolitan Magistrate (E.O.I), Egmore, and remandedto judicial custody
till 6.1.2010. He has not made anycomplaints of ill-treatment against the officials. Theperiod of remand was further extended upto 19.1.2010.
(d) An intimation as to the fact of arrest and theproduction before the Additional Chief MetropolitanMagistrate and the judicial remand thereon
was given to thewife of the detenu by a telegraphic message dated22.12.2009. The Sri Lankan Deputy High Commissioner wasalso intimated by a
letter dated 22.12.2009, about thearrest of the detenu and also the judicial remand.
(e) The Senior Intelligence Officer, R&I Unit (Air),Chennai, has issued a Corrigendum dated 6.1.2010, statingthat the value of the contraband in
the arrest memo may beread as Rs. 20,18,555/-instead of Rs. 20,18,155/-. TheCorrigendum letter dated 6.1.2010, was also sent to the
SriLankan Deputy High Commission, Chennai.
(f) An application for bail was made on 24.12.2009,before the Court of the Additional Chief MetropolitanMagistrate, E.O.I, Egmore, wherein he
made a statement thatthe statement recorded from him was tainted withinvalidating factors of threat, and thus he retracted thesame. A counter
petition was filed by the department. But the Court of Additional Chief Metropolitan Magistrate by anorder dated 5.1.2010, granted bail with a
condition toremain at Chennai and sign before the Customs Departmentdaily at 10.30 A.M., until further orders. Accordingly,the detenu has been
appearing and reporting to the customsauthorities daily.
(g) By attempting to smuggle the four numbers of goldbits as referred to above, by way of concealment in therectum and by the non-declaration to
the Customs, thedetenu has rendered the same liable for confiscation andalso committed offences punishable under Sections 132 and 135 of the
Customs Act, 1962.
(h) Under such circumstances, the Government takinginto consideration the averments and contentions containedin the bail application, and also
the circumstances putforth, was satisfied and has also recorded that he hasactually indulged in smuggling of goods by contravening theprovisions of
the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 (COFEPOSA),and in order to prevent him from doing
any such activitiesin future, it became necessary to pass an order ofdetention as one made in the instant case, and thus madethe order which is the
subject matter of challenge beforethis Court.
Advancing arguments on behalf of the Petitioner, the learned Counsel Mr. M.M.K. Alifudeen would submit that theorder of detention came to
be passed on 27.1.2010; but thedetenu has already sent a letter on 12.1.2010, to thesponsoring authority through his Counsel stating that hewas
ready to pay the necessary fine and penalty for thegoods seized from him, and he wanted to finish the case assoon as possible and return to his
native land namely SriLanka; and that it was also made clear in the letter thathe was a Sri Lankan Citizen, and his passport was beingretained by
the Additional Chief Metropolitan Magistrate''sCourt, E.O.I, and even though the bail was granted to him,he was forced to stay back in India to
face the trial, andhe has actually waived the show cause notice and sought forearly disposal of the adjudication of the case in order toapply for
compounding petition u/s 137 of the CustomsAct to get immunity from the prosecution.
Placing reliance on the letter dated 12.1.2010, thelearned Counsel would further urge that the passport hasbeen retained in the Court, and hence
there was nopossibility of the detenu moving out or involving insimilar type of activities in future.
The learned Counsel would further add that when sucha letter was actually sent on 12.1.2010, a pre-detentionone, while making the order on
27.1.2010, even in theentire grounds of detention, it was not referred to; that it would be indicative of the fact that the sponsoringauthority did not
place the letter before the detainingauthority for its consideration; that the non-placement ofthe said letter dated 12.1.2010, put forth by the
detenu,would clearly vitiate the detention order, and thussufficient opportunity was not given to the detainingauthority to record its subjective
satisfaction proper, andon that ground, the order of detention has become defective.
Added further the learned Counsel that in theinstant case, it is an admitted fact that when the detenumade an application for bail before the
Additional ChiefMetropolitan Magistrate, E.O.I., the Court while grantingbail by an order dated 5.1.2010, has specifically statedthat he should not
move out of India and should reportbefore the concerned authority every day, and his passportwas actually retained in the custody of the Court;
thatwhile the matter stood thus, the authority has pointed outin its order that he would indulge in such activities infuture; that while the passport is in
the custody of theCourt, he could not move out of the country, or there is nopossibility of the detenu indulging in such activities infuture, and thus in
the face of the observation made by thedetaining authority in the course of the order that hewould indulge in such activities, it cannot be stated
thatthe authority has arrived at the subjective satisfaction proper, and on this ground also, the order of detention is vitiated.
The learned Counsel in order to fortify his contentions, relied on the following decisions:
(i) 1999 SCC 1469 (Ahamed Nassar v. State of Tamil Nadu and Ors.);
(ii) P. Kadhirvel Vs. Government of Tamil Nadu and Others, and
(iii) S.L.P.(CRL) No. 6201 of 2009 (Gimik Piotr V.State of Tamil Nadu.)
The Court heard the learned Additional Public Prosecutor for the State and also the learned SeniorCentral Government Standing Counsel and
paid its anxiousconsideration on the submissions made.
It is not in controversy that the Petitionerdetenu, when he arrived at the Airport along with thepassport issued in his favour, on 21.12.2009,
wasintercepted by the authorities attached to the Customs, andon suspicion when the questions were raised whether hecarried any goods either in
his baggage or in the personand when it was answered in the negative, the authoritieswere not satisfied. At the last, he came forward with thereply
that he has concealed two packets containing goldbits, in his rectum, and he ejected the same. The same wasactually weighed in the presence of
two witnesses by the goldsmith, and it was found to contain 1177 grams of fourgold bits, and thus, after preparation of the mahazar forthe
recovery of the same which was one smuggled withoutdeclaration or permission or license and after recordingthe statement in the presence of
witnesses, the proceedingswere initiated under the provisions of the Customs Act bymaking arrest on 22.12.2009, and also production
madebefore the Additional Chief Metropolitan Magistrate''sCourt, E.O.I, Egmore. It is also an admitted fact that hewas remanded on the very
day, and the remand was also beingextended thereafter. Pending the extension of remand, hemade an application for bail. Despite the objection
madeby the State and the Central Governments, the bail wasgranted by that Court on 5.1.2010, imposing certainconditions therefor. On the above
facts and circumstances,the authority namely the second Respondent herein, thoughtthat it was a fit case where an order of detention has gotto be
invoked under the provisions of the COFEPOSA in orderto prevent him from indulging in such activities in future,and he has already involved in
criminal activities, and inorder to restrain him from doing any such activities infuture, it became necessary. Under the circumstances, itcame to be
passed.
As regards the first ground put forth by thelearned Counsel for the Petitioner that there was a predetention letter dated 12.1.2010, it is
pertinent to point out that the fact that the letter was sent by the detenu or received by the sponsoring authority is not denied. The letter sent by the
detenu on 12.1.2010, through the Counsel inter alia reads as follows:
.....
My client is a Sri lankan citizen and hisentire family is at Sri lanka and he has onlylimited period of visa to stay in India. In thecircumstances my
client wants to finish the caseas soon as possible in order to return to hismother country. My client is ready to pay thenecessary fine and penalty for
the gold seizedfrom him. My client was granted bail by theremand court and appearing before the customs asdirected by the court which granted
the bail. My client being a Srilankan citizen and hispassport being detained by the remand court, inthe situation even though the bail has
beengranted to him, he is forced to stay back inIndia to face the pending case against him. Hence my client waives the show cause noticewhich is
likely to be issued u/s 124 of thecustoms act and prays the authority to give anearly opportunity for a personal hearing in his case, in order to
dispose the adjudication caseand to apply for compounding petition underSection 137 of the customs act to get immunity fromprosecution.
My client also submits that his passport hasbeen detained in the court and hence there is nolikelihood of my client moving out of the countryand
involving in any other similar type ofoffences on the absence of his passport in hishand. Being a Srilankan and that too without hispassport my client
could not even survive inIndia for a longer period of time.
Hence it is humbly prayed before the adjudicatingauthority that the show cause notice in this casemay be waived and the adjudicating
proceedingsmay be initiated, personal hearing may be givento my client and the case may be disposed asearly as possible and oblige.
The reading of the above would clearly indicate that it was in the form of a representation which was madeon 12.1.2010, even before the
passing of the order ofdetention, wherein it has been clearly pointed out by thedetenu through the Counsel that he is a native of Srilanka;that his
family members are in Srilanka; that the visa hasbeen given only only for a short period of stay in India; that under the circumstances, he is ready
and willing towaive the show cause notice. Now he has been granted bailby the Court. His passport has already been seized by theauthority and it
is actually in the hands of the Court. Hence there was no likelihood of the detenu moving out orgoing out of the country to indulge in such activities.
Healso further sought that he was ready to waive the showcause notice, and the adjudication proceedings may beinitiated. While such a
representation was made which is apre-detention representation, on 12.1.2010, in theconsidered opinion of the Court, a duty is cast upon
thesponsoring authority to place the same before the detainingauthority. Such a situation came up for considerationbefore the Apex Court in a case
reported in 1999 SUPREMECOURT CASES (CRI) 1469 (AHAMED NASSAR V. STATE OF TAMILNADU AND OTHERS). On
consideration of the factual positionand in particular, in respect of a letter which was sentbefore the passing of the order and also the contention
putforth by the State that there was no necessity for placingsuch letters since they did not make out any valid point infavour of the detenu, the Apex
Court after considering thecontentions put forth, has held in paragraph 18, 19 and 20of the said decision as follows:
Submissions so far made are misconceived and hence we have no hesitation to reject the same. The question here is not any consideration of
anyrepresentation of the detenu expeditiously by thedetaining authority prior to his detention orderbut non-placement of the aforesaid two
relevantletters before the detaining authority. What isrelevant must be placed before the detainingauthority for its consideration
About sending the letter to the detainingauthority it was submitted that the Secretariat towhich the letter was sent was situated at a
shortdistance and hence it should have been sentthrough a special messenger. Reply is that thesame was despatched through speedpost which is
theprescribed and acknowledged mode for sending suchletters. It is true that in a given circumstance,where urgency is spelt out an officer may opt
forsuch a recourse, but where despatch is through aprescribed mode, which is more expeditious thanthe normal mode, it cannot be attributed that
theauthorities were either callous or careless orcasual in their dealing.
So far as the stand of the Respondent withreference to the advocate''s letter dated 19-4-1999is concerned it cannot be held to be a
justifiablestand. These technical objections must be shunned where a detenu is being dealt with under thepreventive detention law. A man is to be
detainedin the prison based on the subjective satisfactionof the detaining authority. Every conceivablematerial which is relevant and vital which
mayhave a bearing on the issue should be placedbefore the detaining authority. The sponsoringauthority should not keep it back, based on
hisinterpretation that it would not be of any help toa prospective detenu. The decision is not to bemade by the sponsoring authority. The law on
thissubject is well settled; a detention ordervitiates if any relevant document is not placedbefore the detaining authority which reasonablycould
affect his decision.
From the very reading of the above, it would be quite clear that if any relevant document was not placedbefore the detaining authority which
would reasonablyaffect the decision of the authority, then naturally theorder of detention would become vitiated. This Court hadan occasion to
follow the above decision of the Apex Courtin a case reported in P. Kadhirvel Vs. Government of Tamil Nadu and Others, . While there was a
representation made evenprior to the passing of the detention order, the sponsoringauthority is duty bound to place the same before the detaining
authority. Whether the averments in such aletter would be in favour of the detenu or otherwise, itwas for the detaining authority to consider the
same andtake a decision and not for the sponsoring authority. After the receipt of the pre-detention representation, thesponsoring authority cannot
be allowed to state that theaverments made in such a representation would not make outany point in favour of the detenu since the order
ofdetention has got to be passed not by the sponsoringauthority, but by the detaining authority. Afterconsidering all the aspects of the matter, in
short, it canbe well stated that the non-placement of the pre-detentionletter dated 12.1.2010, would, in the considered opinion ofthe Court, vitiate
the order.
Apart from the above, in the considered opinion ofthe Court, the second ground put forth by the learnedCounsel, has got to be equally applied
to set aside theorder. Admittedly, on interception, the detenu wasquestioned. Even according to the department, the goldbits were seized under a
cover of mahazar in the presenceof witnesses, and he has also made a statement, and thesame was recorded. Thereafter, proceedings were
initiatedunder the Customs Act, and he was arrested and alsoproduced before the Additional Chief MetropolitanMagistrate, E.O.I., on
22.12.2009, and remanded, and it was periodically extended. Even as could be seen from thegrounds of detention, the documents including the
passport,were actually seized from him under a cover of mahazar. When he applied for bail pending the judicial remand, thesaid Court has granted
bail on 5.1.2010, inter aliaimposing certain conditions that he should appear beforethe authority every day. As could be seen from the order,there
was no violation of the conditions, and he has beencomplying with the same. As far as the passport isconcerned, it is an admitted position that it
was actuallyseized, and the same should have been placed before theCourt. Hence it should be in the custody of the Court. But, the authority in the
course of the grounds ofdetention, has stated as follows: paragraph 5 reads asfollows:
The State Government are satisfied that on thefacts and material mentioned above, if you remainat large, you will indulge in such
prejudicialactivities again, eventhough your passport isretained in the Court. The State Government arealso satisfied that further recourse to
normalcriminal law would not have the desired effect ofeffectively preventing you from indulging in such activities. The State Government,
therefore,consider that, it is necessary to detain you u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974, with a view to prevent you from indulging in the smuggling of goods in future.
While it is an admitted position that the passportof the individual was actually retained in the Court, theobservation made by the authority that
he would indulge insuch criminal activities in future, in the consideredopinion of the Court, cannot but be without any basis ormaterial. It is not the
case of the State that he hadalready indulged in such activities either by illegal meansor by fake passport. As could be seen, this was the
onlypassport available in his hands, and it has also beenseized by the authority and placed in the hands of theCourt and retained. While the
passport is in the custodyof the Court, the observation made by the authority that hewould indulge in such activities in future can be termedonly as
a piece of pure speculation. Commenting upon such asituation, the Supreme Court in S.L.P.(Crl.) No. 6201/09(Gimik Piotr v. State of Tamil
Nadu and others) has heldin paragraph 27 of the judgment as follows:
In our view, if that be the position, the order of preventive detention could have been passed u/s 3(1)(ii) of COFEPOSA, as it authorizes the
State Government to pass apreventive detention order to preventing him fromabetting smuggling of goods. The argumentadvanced by the
Respondents is devoid of anylogic. In the present case, the detention orderis passed u/s 3(1)(i) of COFEPOSA. Thecustoms department has
retained the passport ofthe detenu. The likelihood of the Appellantindulging in smuggling activities was effectivelyforeclosed. As observed by this
Court in RajeshGulati''s case, that the contention that despitethe absence of a passport, the Appellant could orwould be able to continue his
activities is basedon no material but was a piece of purespeculation.
In the case on hand, it could be well stated that in the absence of any other material that he was alreadyinvolved in any such activities in the
past and in theabsence of any document or any fake passport which wasattempted to be used by him and in view of the fact that hewas in custody
of the only passport which was also seizedby the authority under a cover of mahazar at the time ofinitiating proceedings and produced before the
Court of lawand retained by that Court, now the observation made by theauthority that he would indulge in such activities in future is without any
foundation at all. On that ground also, the order is vitiated. Therefore, this Court is of the view that the above grounds have got to be applied for
setting aside the order of detention.
Accordingly, this habeas corpus petition is allowed setting aside the order of detention passed by the first Respondent. The detenu is directed
to be set at liberty forthwith unless his presence is required in connection with any other case.