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Judgment
M. Chockalingam J.
This habeas corpus petition challenges an order of detention made by the first respondent on 24.2.2009, whereby the petitioner Chinnavanni
was ordered to be detained u/s 3(1)(i) of COFEPOSA Act, 1974.
The facts and circumstances which led the first respondent to make such an order of detention can be stated thus:
On 17.1.2009, the detenu, holder of Indian Passport issued on 11.12.2008, and two cancelled Indian Passports issued on 4.9.2007 and
28.11.2003 respectively, all issued at Tiruchirapalli, and bound for Singapore by Air India flight along with two checked-in baggages along with a
hand baggage, was intercepted while proceeding towards the security check after immigration clearance on entertaining suspicion that he may be
carrying foreign currencies or Indian currencies either on the person or in the baggage. When questioned by the authorities, the detenu replied in
negative. The authority not satisfied with the same, opened and examined the baggage in the presence of two witnesses. While doing so, nine
bowls contained in one of the checked-in baggages were found to contain 3900 Indian Currency notes of 500 rupees denomination in 52 bundles
amounting to Rs. 19,50,000/- in total. They were recovered under a cover of mahazar. In the other checked-in baggage and the hand baggage, no
incriminating materials are found. On personal search, Rs. 25,000/- Indian currency of Rs. 500 denomination and Singapore Dollars 650 was
recovered under a cover of mahazar. When questioned, it was answered by the detenu that no declaration was made. Since it was in violation of
the provisions of Foreign Exchange Management Act, a case was actually registered, and a statement was recorded. He was arrested on
18.1.2009 and produced before the Additional Chief Metropolitan Magistrate, E.O.II, Egmore. He was remanded to judicial custody till
30.1.2009. The period of remand was also extended upto 12.2.2009 and on 17.2.2009, he was ordered to be produced on 25.2.2009.
Pending the same, the sponsoring authority made the recommendation that he attempted to smuggle the said currencies out of India for monetary
benefits, and hence an order of detention has got to be made against him. On scrutiny of the materials, the first respondent was of the opinion and
also recorded subjective satisfaction that it was a fit case where the provisions of the COFEPOSA Act have got to be invoked, and an order of
detention be passed, and accordingly made the impugned order. Hence this petition before this Court.
Assailing the order under challenge, the learned Counsel for the petitioner took the Court to paragraph (iv) in page 4 of the impugned order
which reads that the period of remand has been extended upto 12.2.2009, and on 17.2.2009, the A.C.M.M., E.O.II Court, Chennai, has ordered
as ""the accused was not produced through V.C.S. due to mechanical defect in the T.V. Room. Hence he is ordered to be produced on
25.2.2009.
The learned Counsel would further submit that as could be seen from the order, he was actually not under judicial remand between 12.2.2009
and 17.2.2009; that further on the adjourned date namely 17.2.2009, also, he was neither produced before the Court nor through VCS due to
mechanical defect in the TV room, and hence he was ordered to be produced on 25.2.2009; that under the circumstances, there was no valid
remand; but the authority has stated in paragraph 5 of the order that he was a remand prisoner and his remand was for the period specified in law,
and thus it would be quite clear that while actually there was no remand extension, it has to be taken that he was not under judicial custody; that
under the circumstances, the observation by the authority that he was a remand prisoner during the period was without any application of mind,
and it would affect the order.
Added further the learned Counsel that he moved an application or bail; that actually the bail application was pending during the relevant time;
that the observation of the authority that he would be released on statutory bail thereafter, and further the Government was also aware that he had
filed a bail application before the Principal Sessions Court, and it was pending disposal, and there was likelihood of the detenu being released on
bail, and thus it would be quite clear that while the bail application filed by him was actually pending on the day before the Principal Sessions
Court, the observation that there was likelihood of his being released on bail was without any material whatsoever, and the detaining authority
could not apprehend that an order would be passed by the Court of Session when the detention order came to be passed.
The learned Counsel would further add that in the instant case, though he was found to have travelled on 19 occasions, even as per the
department, on no one occasion he has attempted to smuggle; but it was only stray occasion. The learned Counsel relying on the decision of the
Supreme Court reported in 2009 (2) Crimes 49 (SC) (Pooja Batra v. Union of India and Ors.), would submit that only one occasion is found; that
it cannot form basis for passing an order of detention; and that no material was available to indicate that he would be further indulging in such
activities in future.
As the last ground, the learned Counsel would submit that as could be seen from the materials, his passports were actually placed in the hands
of the Metropolitan Magistrate''s Court; but the passports was not actually seized from the detenu by way of a mahazar; that even the mahazar
prepared on the day would clearly indicate that nothing else was recovered from his baggage or from the person; that in the absence of any
mahazar, how the department came into possession of one passport and two cancelled passports and how they were produced before the Court
remained unknown; that under the circumstances the detaining authority should have called for a clarification how the department came into
possession of those passports and produced before the Court; that in the case on hand such a clarification has not actually been obtained at all,
and for all the above reasons, the order under challenge has become infirm and has got to be set aside.
The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions
made.
Under the above stated circumstances, the order under challenge came to be made on 24.2.2009. So far as the first ground that the order
would clearly read that on 12.2.2009 he was actually remanded, and on 17.2.2009, he was not produced sine there was a mechanical defect in
the TV room, and hence he was directed to be produced on 25.2.2009, is concerned, paragraph iv) of the order reads as follows:
iv) You, Thiru V. Chinnavanni, were arrested on 18.01.2009 and produced before the Additional Chief Metropolitan Magistrate, E.O.II Court,
Egmore, Chennai, who has remanded you to judicial custody till 30.01.2009. The period of Remand has been extended upto 12.02.2009 and on
17.2.2009, the A.C.M.M., E.O.II Court, Chennai has ordered as ""the Accused was not produced through V.C.S. due to mechanical defect in the
T.V. Room. Hence, he is ordered to be produced on 25.2.2009.
Thus it would be quite clear that between the above interval, there was no valid remand order passed by the Court.
As rightly contended by the learned Counsel for the petitioner, in paragraph 5 of the impugned order, the detenu was shown as a remand
prisoner during the relevant time. In reply, the learned Additional Public Prosecutor brought to the notice of the Court a Full Bench decision of this
Court reported in 2007 (5) CTC 657 (G. Kalaiselvi v. State of Tamil Nadu and Anr.), wherein it has been held thus:
The question as to whether such a person has been validly remanded to custody or otherwise is not the concern of the Detaining Authority. If a
person is actually in custody and the Detaining Authority is under the impression that such person is not in custody but is at large and an order of
detention is passed, obviously such detention order is vitiated because the Detaining Authority ignores a vital aspect, namely the question as to
whether the person is at large or whether the person is in custody. When a person is in custody, the Detaining Authority may not think of passing
any order of detention, unless the Detaining Authority comes to the conclusion that there is imminent possibility of being released on bail or even
otherwise.
This Court is of the considered opinion that the above decision rendered by the Full Bench of this Court would be applicable to the present
facts of the case. It is true that in the instant case, during the relevant period, there was no remand extension made by the Metropolitan Magistrate.
But the factum of custody could not be disputed. As far as the detaining authority is concerned, he need not go into the validity or otherwise of the
remand extension during the relevant time. What was to be taken up for consideration by the detaining authority was whether he was under actual
custody or not during the relevant period. Thus the dicta by the Full Bench of this Court has got to be squarely applied to the present facts of the
case. Under the circumstances, the first contention put forth by the learned Counsel for the petitioner has got to be rejected, and accordingly it is
rejected.
Insofar as the second ground that the bail application filed by the petitioner before the Sessions Court dated 16.2.2009, was actually pending
on the day when the order came to be passed on 24.2.2009, from the order it would be quite evident that the authority had got the knowledge that
the bail application was pending before the Principal Sessions Court when the order came to be passed. However, the authority has stated that
there was likelihood of the detenu being released on bail. It can be well stated that it was only an expression of the impression which passed in the
mind of the authority. Once the application for bail was pending in the hands of the Court, the authority cannot say that there was likelihood of the
detenu being released on bail. It can even be stated that this observation was not only without any material, but also in anticipation of an order that
was to be passed by the Court of Session. Under the circumstances, this observation was without any material whatsoever. Therefore, on that
ground, the order would become infirm.
Insofar as the third ground that he made 19 visits and at no point of time, he attempted to smuggle, and this was the only one occasion, and
under the circumstances it cannot be stated to be forming any basis for passing an order of detention, this Court is unable to agree with the
contention put forth by the learned Counsel for the petitioner. Even if it is only one incident, if there are circumstances indicating that he would
indulge in such activities, an order of detention cannot be passed. At this juncture, it would be more apt and appropriate to reproduce the decision
of the Apex Court reported in 2009 (2) Crimes 49 (SC) (Pooja Batra v. Union of India and Ors.) as follows:
As already discussed, even based on one incident the Detaining Authority is free to take appropriate action including detaining him under
COFEPOSA Act. The Detaining Authority has referred to the violation in respect of importable goods covered under Bill of Entry No. 589144
dated 25.04.2007. In an appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may
indulge in smuggling activities, however, for that purpose antecedents and nature of the activities already carried out by a person are required to be
taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent, it was
necessary to detain him. If there is no adequate material for arriving at such a conclusion based on solitary incident the Court is required and is
bound to protect him in view of the personal liberty which is guaranteed under the Constitution of India.
It is further to be pointed out that in the instant case, it was claimed by the department that he was an agriculturist, and he has made 19 visits to
Singapore and Malaysia as could be seen from the materials. All would clearly indicate that though it was only one incident, he was found to have
attempted to smuggle. Once he has been often visiting abroad, following the decision of the Apex Court stated supra, the Court has to reject the
contention put forth by the learned Counsel. Accordingly, it is rejected.
As far as the last ground is concerned, this Court is able to see force in the same. At the time when he was intercepted, he was found in
possession of one passport and two other cancelled passports which were issued at Tiruchirapalli. Now it is not in dispute that the passports have
actually been placed before the Court and are in the custody of the Court. The learned Counsel took the Court to the mahazar, which was
prepared at the time of intervention. The same would clearly reveal that except the currencies nothing was actually recovered either from the
baggage or from the person. Under the circumstances, in the absence of any material or mahazar to indicate the possession of the passports was
originally with the authority and thereafter they were produced before the Court, naturally one would expect the detaining authority to call for a
clarification how they came into possession of the passports. Now the contention put forth by the learned Additional Public Prosecutor that it was
a relied on document, and it has been clearly stated that those passports were produced by the detenu, and thus the department came into
possession cannot be countenanced. It is true that in the booklet, it is specifically stated that those passports were actually produced by the detenu.
But this Court is of the considered opinion that mere averment therein cannot be taken as a satisfactory answer while admittedly those passports
were originally in the custody of the detenu. In the absence of any mahazar or material, it could not have come into possession of the department;
but the mahazar prepared by the department would clearly indicate that none else was recovered from him, and he does not also speak about the
mahazar. Under the circumstances, it is for the department to explain how these passports originally with the detenu came into custody of the
department and produced before the Court. It is not the case of the department that they were produced by the detenu directly before the Court.
It has actually been recovered by the department and produced before the Court. Under the circumstances, a duty is cast upon the department to
say how it got the custody of the three passports for which no satisfactory reply is available. In such circumstances a clarification should have been
called for before passing the impugned order, but not done so. Out of the four grounds, though two grounds were negatived, in respect of the other
two grounds this Court is satisfied that the order of detention suffers.
Accordingly, this habeas corpus petition is allowed setting aside the order of the first respondent. The petitioner detenu is directed to be
released forthwith unless his presence is required in connection with any other case.