IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 04.03.2002 Coram : THE HONOURABLE MR. JUSTICE P. SHANMUGAM and THE HONOURABLE MR. JUSTICE P. THANGAVEL H.C.P. No.1112 of 2001 B.KRISHNAKUMAR .. PETITIONER Vs. 1.STATE OF TAMIL NADU REP.BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, FORT ST.GEORGE, CHENNAI-600 009. 2.GOVERMENT OF INDIA REP. BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI. 3.THE SUPERINTENDENT OF PRISON, CENTRAL PRISON, CHENNAI-3. .. RESPONDENTS PRAYER : Petition under Article 226 of the Constitution of India, praying that in the Circumstances stated therein and in the affidavit filed therewith, the High Court will be pleased to issue a Writ of Habeas Corpus calling for the records leading to the detention of B. Krishnakumar under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 vide detention order dated 19/04/01 on the file of the first respondent herein made in G.O. No.SR.I/365-5/2001 Public (SC Department) and quash the same as illegal and consequently direct the respondents herein to set the said detenu at liberty from the Central Prison, Chennai. ORDER This Habeas Corpus Petition coming on for hearing, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of ! Mr. B. Kumar, Senior Counsel on behalf of Mr. A. Ganesh, counsel for the petitioner ^ Mr. I. Subramaniam, Public Prosecutor on behalf of first and third respondents and Mr. Su. Srinivasan, A.C.G.S.C. for the second respondent, the Court passed the following order :- : O R D E R P. SHANMUGAM, J. The Writ Petition is for the issue of a Writ of Habeas Corpus by calling for the records of the first respondent State of Tamil Nadu in G.O. No.SR.I/365-5/2001 Public (SC Department) dated 19.4.2001 issued under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) and for the release of the detenu. 2. The detention order is passed in exercise of the powers conferred by Section 3(1)(i) of the Act. On the materials placed before the State Government that the petitioner had indulged in smuggling of goods, the above order came to be passed. The facts necessary for the disposal of the case are stated hereunder. 3. Petitioner is the proprietor of M/s. Blue Wave Impex, a company dealing in import and export business. It is stated that previously, he started a business in the name of M/s. Sri Krishna Trading and had made ten imports from March 1999 to 7.2.2001. In August 2000, he started another concern by name M/s. Blue Wave Impex, opened a bank account and obtained Importer Exporter Code. In the case on hand, the petitioner had placed an order for import of 336 pedestal fans from Singapore and the same arrived by the Vessel "TIGER METRO 865-N" from Singapore on 19.1.2001. On behalf of the petitioner, his Customs House Agent M/s. Lotus International Service submitted the import documents such as Invoice and Bill of Lading to the Electronic Data Inter Phase System of the Customs House and the consignment was electronically assessed on 22.1.2001. On an intelligence report that high priced electronic goods are being smuggled into India through Chennai Port in other covered consignments from Singapore in Container Number TRLU-4436638 by the Vessel "TIGER METRO 865-N" on 2.2.2001, the officers of the Directorate of Revenue Intelligence made efforts to locate the office of M/s. Blue Wave Impex which was found locked. Thereafter, the consignment was examined under the Customs Act in the presence of the said customs agent and the custodian of the imported goods namely the Chennai Port Trust officials. Thiru T.S. Kamalakannan, the customs house agent, in his statements dated 4.2.2001 and 5.2.2001, informed that M/s. Vinodh Kumar, Ravi alias Sticker Ravi and Mohd. Khuddus were the organizers of the consignment. After the seizure was effected, summons were effected to the detenu on 10.2.2001, 20.2.2001 and 12.3.2001. The detenu did not respond to the summons, but was absconding. However, the detenu appeared on 14.3.2001 before the Joint Director, D.R.I., Chennai and gave a voluntary statement admitting his role in the transaction and that of the other persons. This statement corroborated with the material facts. The petitioner alleged ill treatment by the D.R.I. officers and states that the statement was obtained from him by force. He was arrested and was produced before the Additional Chief Metropolitan Magistrate (E.O. II), Egmore on 15.3.2001, who remanded him. The petitioner did not make any complaints to the Magistrate about the alleged ill treatment in his first opportunity. As a matter of fact, the Magistrate had recorded as follows : "The accused produced. No complaints of ill treatment. Prima facie case is made out. Remanded till 29.3.2001." According to the petitioner, in the Sub-jail, the Sub-jailer asked him whether he has any injuries on his body and he told him that his front upper teeth were broken and shaking and the lips, upper and lower, were having cuts and thereby blood clots were there. According to the petitioner, the injuries were noted down in the Admission Register and the Gate Register and signature of the D.R.I. officer was obtained. Petitioner filed an application under Section 54 of the Code of Criminal Procedure Code to refer him to the Government General Hospital for treatment and call for reports from the Doctor. Immediately thereafter, he was admitted in the Government Royapettah Hospital and he was an in-patient there. He was also under treatment at the Dental College Hospital. He had filed a bail application before the Additional Chief Metropolitan Magistrate, Egmore on 15.3.2001, wherein he had alleged that the respondents have obtained a statement from him by way of threat and coercion. However, the same was denied in the counter affidavit filed by the D.R.I. officers. The remand period was extended upto 26.4.2001 and in the meanwhile, the detention order came to be passed on 19.4.2001. The above order is now under challenge. 4. Though several grounds were raised in the affidavit against the order of detention, the main grounds raised by the petitioner's counsel for the purpose of consideration in this case are as follows : (a) Some of the documents have been given only in English without there being a translation in Tamil. Since the petitioner does not know English, there cannot be a proper communication of grounds. (b) The statement was obtained from the petitioner by force as evidenced by the external injuries on the body of the petitioner. The detaining authority has failed to apply his mind on this vital aspect. There is non-application of mind in that the statement was taken into account without reference to the force said to have been used against the petitioner. (c) The sponsoring authority has suppressed certain vital facts and material in reference to the injuries while he was being admitted in the Sub Jail. (d) The petitioner had sent his retraction letter after he was discharged from the hospital on 29.3.2001, detailing about the ill treatment. In the circumstances, the retraction and the injury report were not placed before the detaining authority. (e) The petitioner did not file the bill of entry, but only a checklist bill of entry was filed by clearing agent. 5. In meeting this, the learned Public Prosecutor submitted the following in reference to the specific grounds argued before us : (a) Copies of all the materials placed before the detaining authority had been furnished to the detenu. Translation of all the documents except those relating to customs clearance, opening of bank account, obtaining of import export code from the office of the Joint Director General of Foreign Trade, which the detenu has dealt with as such, has been furnished. There is a proper comunication of the grounds and there has not been any failure in this regard. (b) The detenu did not make any complaint at the earliest opportunity available to him before the remanding Magistrate. A reading of the remand report shows that the detenu had not made any complaint of ill treatment by the officers of D.R.I. Similar such allegations were made before the Advisory Board, but the order of detention was confirmed. (c) The petitioner's allegation before the Additional Chief Metropolitan Magistrate in his bail application that the statement was obtained under threat, coercion and undue influence and that he had retracted the statement as involuntary was denied in the counter filed by the D.R.I., Chennai. The Government has taken into consideration the allegations contained in the bail application and found that they are baseless, after-thought and devoid of merit. (d) In the alternative, assuming that the statement should not be relied upon, there is sufficient ground to justify the order of detention under Section 5-A of the Act. 6. Learned counsel Mr. B. Kumar, while not opposing the legal submission raised on Section 5-A, submitted that there are no two grounds available in this case to invoke Section 5-A. 7. We have heard the counsel elaborately, gone through the records and considered the matter carefully. 8. Non-furnishing of translation in Tamil : At the outset, it has to be stated that the petitioner has made a vague complaint in reference to this main ground of attack. In the fag end of his affidavit, what he says is as follows : "6(x). Petitioner further submits that some of the documents have been given only in English without there being a translation in Tamil. Since the detenu does not know English, there cannot be said to be proper communication of grounds within the meaning of the said Article. This factor by itself vitiates the continued detention of the detenu." The petitioner had not set out the documents which have not been translated. In the counter, it is stated that Tamil translation of all the documents excepting the customs clearance, opening of bank account, obtaining of import export code from the Office of the Director General of Foreign Trade, which the detenu has dealt with as such, have been furnished. The detenu is aged 35 years and he has studied upto X Standard. He had been dealing in the business of export and import. He had applied for the allotment of Importer Exporter Code Number in his application dated 30.10.2000 for his company M/s. Blue Wave Impex. He had obtained a rental agreement for the premises bearing Door No.3, Dr. Thirumurthy Nagar, Fifth Street, Nungambakkam, Chennai-3 4 dated 30.8.2000. He had applied to the Manager, Bank of Baroda to open a current account. He had intimated about the change of premises to the Bank of Baroda. He had issued a Certificate of Proprietary Form for his company to the various offices, all written in English and signed by the detenu in English. Apart from this, invoices were raised in the name of the detenu's comp any M/s. Blue Wave Impex by the Singapore Company and these were submitted to Lotus International Service, the detenu's clearing agent stating that he had imported 336 pedestal fans. Though the invoice as well as the checklist bill of entry did not contain the signature of the detenu, these documents namely the invoice, checklist, declaration form for filing a bill of entry were and could have been processed only with the clear knowledge and understanding of the detenu. All other documents like opening of bank account, rental agreement, application for exporter importer code number etc. were all filled up in English and signed by the detenu in English. Therefore, we are unable to agree with the contention of the learned counsel for the petitioner that the petitioner was not served with the true English translation of these documents in order to make a proper representation. From these documents, it is very clear that the detenu had a good working knowledge of English even though he has studied only upto X Standard and all these transactions, namely opening of bank account, obtaining of import export code as also the documents relating to customs clearance through his clearing agent, which according to him are not translated, have originated only with the knowledge of the petitioner. 9. In this context, some of the decisions cited on either side which are relevant can be referred to. In QUBEC DARIZO VS. UNION OF INDIA [1990 S.C.C. (CRL.) 227], while explaining the word "communicate" found in Article 22(5) of the Constitution of India, their lordships of the Supreme Court held that what is considered necessary is a working knowledge of the language enabling the detenu to understand the grounds or full explanation or translation thereof in the language understood by the detenu. It was held that it would be open for the court to consider the facts and circumstances of a case to reasonably ascertain whether the detenu is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished. It would involve a subjective determination. In ABDUL SATTAR VS. UNION OF INDIA [1990 S. C.C. (CRL.) 242], it was held that copies of the documents (bail application filed by the detenu himself) not relied upon, bot only incidentally referred to in the grounds would not violate Article 22(5) and vitiate the detention. In this case, though it cannot be stated that the invoice, checklist, declaration form for filing a bill of entry and his application for opening the bank account are not translated. We find that all these documents have emanated from the detenu or under his authority and hence are his own documents. In PRAKASH CHANDRA VS. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA (A.I.R. 1986 S.C. 687), it was held that the Constitution requires that the ground must be communicated. Therefore, it must follow as an imperative that the grounds must be communicated in a language understood by the person concerned so that he can make effective representation. Their lordships further held that there is no rule of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities, though these constitutional provisions should be strictly construed. On these premises, their lordships, considering in that case that the petitioner was constantly accompanied by persons who knew English very well and that he had been communicating to the authorities by way of mercy petitions, not knowing the contents were all disbelieved and it was held that the court is not the place where one can tell all tales. As rightly pointed out, in this case, the petitioner had been making applications and declarations on his own which were signed by him in English and he is dealing in import of materials, admittedly placing orders with exporters. Therefore, it follows that the petitioner was merely feigning ignorance of English even in reference to the few of his own documents. In NAINMAL PERTAP MAL SHAH VS. UNION OF INDIA (A.I.R. 1980 S.C. 2129), the Supreme Court was dealing with a case where the complaint of the detenu was that he did not know and did not understand the language in which the detention order was passed and stated that no translated script thereof was supplied to him. In that context, it was held in that case that the suggestion of the respondent that the detenu had signed number of documents in English and hence it must be presumed that he was fully conversant in English was held to be based on pure speculation when the detenu has expressly stated that he did not know English. Here, it is not the case that the grounds of detention running to 11 pages and the list of documents containing 283 pages were not translated and given to the detenu in the language known to him. Even according to him, only some of the documents were not translated. We find that the documents that were not translated were only the invoice raised by the foreign company in the name of the detenu on his order and the application to open a current account in the name of the detenu's concern and the declaration and application made for obtaining the I.E. Code were the few documents which were not translated. All other documents were duly translated and supplied to the detenu. Even here, the reference in the grounds of detention to these documents were also translated to the detenu. Therefore, we do not find any substance in this point. 10. Non-application of mind : The detenu had placed orders for supply of 336 number of pedestal fans with a Singapore company for the alleged cost of 6652.80 Singapore Dollars. The containers arrived by the Vessel on 19.1.2001. On specific intelligence information, the consignment was seized by the officials of the Directorate of Revenue Intelligence and they found that the bill of entry was not signed till 2.3.2001 and therefore, after identifying the consignment and finding that the import was contrary to the declaration and to evade customs duty, in the presence of mahazar, the consignment contained in 28 wooden cases was opened and examined. They were annexed to the mahazar and the C.I.F. value of the seized items was determined at Rs.2,57,48,720/-. After this, summons were issued to the detenu on 10.2.2001, 20.2.2001 and 12.3.2001. A statement was obtained from the petitioner's Customs House Agent T.S. Kamalakannan on 4.2.2001 and 5.2.2001. It is under those circumstances and thereafter that the detenu appeared before the D.R.I. and gave his statement dated 14.3.2001 admitting that he had lent his name to M/s. Vinodh Kumar, Ravi alias Sticker Ravi and Mohd. Khuddus and that he had acted at Mr. Ravi's instructions and that the import was made by the finance provided by the said Ravi. The detenu was arrested and was produced before the Magistrate on 15.3.2001. The remand order of the Magistrate dated 15.3.2001 specifically says that there was no complaint of ill treatment. In reference to the allegations made in the petitioner's bail application that the statement was obtained by threat and coercion, the Senior Intelligence Officer, D.R.I., Chennai, in his counter, has stated that the detenu was absconding since the date of seizure and did not respond to the summons issued to him under the Customs Act. However, on 14.3.2001, he appeared on his own and gave a voluntary statement furnishing facts and circumstances which he alone could provide and has clearly admitted of his involvement in the offence, not only in the present occasion, but also in the previous occasion and submits the contention of the detenu that the statement was obtained from him under threat, coercion and undue influence is nothing but an after-thought, having realised the implications of his voluntary statement and the consequences of the offence in which he is involved. Thus, these documents namely the statement made by the detenu dated 15.3.2001 before the D.R.I., the remand order of the Magistrate dated 15.3.2001, the bail application dated 15.3.2001 and the counter filed by the respondent were placed before the detaining authority and they were taken into account before the detention order came to be passed. In the grounds of detention, in Ground Nos.xviii and xxii, these facts are clearly stated. The detaining authority has stated that having taken into consideration the allegations contained in the bail application and from the materials placed on record, the Government is satisfied that the said allegations are baseless, after-thought and devoid of merits and hence, the Government rejected the same. 11. The main submission of the learned senior counsel for the petitioner is that there is failure on the part of the sponsoring authority to place before the detaining authority the injuries said to have been noted by the jail authorities when the detenu was sent to the jail on 15.3.2001. In this context, it has to be noted that in the affidavit filed by the detenu himself, he mixes his case with the case of S. Mohan and refers to the injuries alleged to have been noted on the body of S. Mohan. Insofar as the detenu is concerned, he is said to have been ill treated by the officials of the D.R.I. No particulars of his ill treatment have been given in paragraph 4 of his affidavit while describing about the ill treatment. Then, he refers to the Sub Jailer asking him to show the identification marks of his body and asking him to remove his clothes as a routine checkup. Then he refers to the injuries found on the body of S. Mohan. As far as his injuries are concerned, he says that his upper tooth is broken and is shaking and that the lips, upper and lower, had cuts and thereby, blood clots were there. Thereafter, the brother of S. Mohan, who is the friend of the detenu, filed an application before the Magistrate under Section 54 Cr.P.C. to refer him to the Government Hospital for treatment and immediately he was admitted in the hospital from 16.3.2001 onwards. No medical certificate had been obtained or produced to show about his injuries and the nature of the treatment. Petitioner has not stated specifically even in the affidavit filed in support of the writ petition that he was ill treated by the officials of the D.R.I. and that the statement was forcibly obtained from him. He did not say as to how the injuries had occurred. As rightly suggested by the learned Public Prosecutor, there is no record to show regarding the age of the injuries and that the injuries occurred only when he came to the D.R.I. office on 14.3.2001. Therefore, the relevant materials available in reference to the detenu namely the remand order, bail application and the counter, were all taken into account before passing the detention order. In the absence of the allegation that the front teeth was broken and shaking and that it has been caused by the D.R. I. officials, it is not possible to infer assuming for the sake of argument that the injuries were noted in the Register and absence of placing these before the detaining authority has vitiated the order. As stated earlier, petitioner is said to have been admitted in the hospital immediately thereafter and remanded there for ten days for this alleged injury and he refused to remove the shaking teeth and also admits that the teeth was not broken. Therefore, we do not find that there is any genuineness in the contention of the petitioner in his affidavit that there was physical violence against the detenu and that only because of that, he gave a statement. 12. Some of the decisions referred to in this context can be summarised here. In GURDEV SINGH VS. UNION OF INDIA [2001 (9) J.T. (S.C.) 3 74], it was held that the subjective satisfaction arrived at by the detaining authority is based on consideration of all relevant materials placed before it by the sponsoring authority. It is not the case of the appellant in that case that the sponsoring authority did not place before the detaining authority any material in its possession which is relevant and material for the purpose and such material, if considered by the detaining authority, might have resulted in taking a different view in the matter. Whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straight-jacket formula or set principles which depends upon the facts and circumstances of the case. The Act does not lay down any set parameters for arriving at subjective satisfaction. Keeping in view the purpose for which the enactment is made and intended to achieve, the Parliament, in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. 13. In SANJAY KUMAR AGARWAL VS. UNION OF INDIA [1990 (3) S.C.C. 309], the Supreme Court, repelling the contention of non-application of mind by a detaining authority, held that the detaining authority in that case