IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P.Nos.1208 and 1209 of 2007 Mrs.Remya .. Petitioner in H.C.P.No.1208/07 Smt.Saraswathi .. Petitioner in H.C.P.No.1209/07 -vs- 1. State of Tamil Nadu rep.by Secretary to Government Public (SC) Department Fort St.George Chennai 600 009 2. Union of India rep.by Secretary to Government Ministry of Finance Department of Revenue Respondents in both New Delhi .. the H.C.Ps. H.C.P.No.1208 of 2007 is filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Habeas Corpus, to call for the records of the first respondent made in G.O.SR.I/530-5/07 Public (SC) Department dated 16.07.07, quash the same, produce the body of A.Satish Kumar before this Hon'ble Court and set at liberty the detenu A.Satish Kumar S/o Shri Anthony Pandian now detained in Central Prison, Puzhal under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. H.C.P.No.1209 of 2007 is filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Habeas Corpus, to call for the records of the first respondent made in G.O.SR.I/530-6/07 Public (SC) Department dated 16.07.07, quash the same, produce the body of S.Ganesh before this Hon'ble Court and set at liberty the detenu S.Ganesh S/o Shri Sitaraman now detained in Central Prison, Puzhal under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners :: Mr.B.Kumar Senior Counsel for Mr.N.Balaji For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor for R1 Mr.K.Gunasekar, ACGSC for R2 ORDER D.MURUGESAN, J. The petitioner in H.C.P.No.1208 of 2007 is the wife of the detenu-A.Satish Kumar, who has been detained by the State Government in exercise of the powers conferred under Section 3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) by the detention order made in G.O.SR.I/530-5/2007 Public (SC) Department dated 16.7.2007. Similarly, the petitioner in H.C.P.No.1209 of 2007 is the mother of the detenu-S.Ganesh, who has been detained by the State Government in exercise of the powers conferred under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) by the detention order made in G.O.SR.I/530-6/2007 Public (SC) Department dated 16.7.2007. As both the detenus have been detained in respect of the same transaction, the grounds of detention in respect of the detenu-A.Sathish Kumar are alone referred to in this order. 2. In the grounds of detention, it is alleged that on the basis of specific intelligence to the effect that M/s Nila Exporters had filed a shipping bill bearing no.000596 dated 22.5.2007 in Inland Container Depot, Thudiyalur, Coimbatore declaring that the goods in the shipping bill documents are 100% cotton powerloom woven men's night pants and the consignee is M/s Primark Tiends S.L.U., Dublin, Ireland and the said shipping bill was filed by the exporter under the Duty Drawback Scheme and that the exporter had misdeclared the goods in order to avail the undue benefit of drawback, the Directorate of Revenue Intelligence, Chennai detained the export container covered under the above shipping bill. On examination of the said export consignment, it was found that out of 268 cartons, 43 cartons were found to contain 2981 numbers of pants appearing to be of inferior quality and the remaining 225 cartons were found to contain used/torn/dirty/cheap rags and used clothes/nighties appearing to be of no commercial value. On the reasonable belief that the goods are liable to confiscation, they were seized under the provisions of the Customs Act, 1962. https://hcservices.ecourts.gov.in/hcservices/ 3. A search was conducted on 29.5.2007 in the three office premises of M/s Nila Group of Companies under the cover of mahazar. A statement was recorded from the detenu on the same day under Section 108 of the Customs Act, 1962. Apart from various details, the statement contained that one Thiru S.Ganesh, a friend of the detenu, obtained Form 13 from the steamer agents and handed over to the lorry driver on 25.5.2007 and for the shipping bill there was no CHA and on the basis of FOB value, drawback facility of 7% was available and the FOB value of the declared goods is Rs.50,39,170.50p to which, Rs.3,50,000/- would be available for drawback. On further statement dated 30.5.2007, the detenu had stated that he along with the said Ganesh have done exports under Import Export Code granted to individual exporters by RBI. The voluntary statements of the detenu, Thiru.S.Ganesh, Thiru.Ishwar and the officers of Inland Container Depot would reveal that in two earlier exports made in drawback scheme in the name of M/s Nila Exporters also similar goods were exported. Thus evidently, the export was organised by the detenu in the name of M/s Nila Exporters to export inferior quality goods by inflating the value with a clear intention to obtain higher drawback resulting in the goods being confiscated under Section 113 of the Customs Act. As the act on the part of the detenu amounted to smuggling, he was clamped with the order of detention. Questioning the said detention order, H.C.P.No.1208 of 2007 has been filed. 4. Mr.B.Kumar, learned senior counsel appearing for the petitioner would submit that the detention order is vitiated and is liable to be quashed for the following reasons. Firstly, the learned senior counsel would submit that in the grounds of detention, the detaining authority has relied upon the seizure of a diary in the handwriting of the detenu-Satish Kumar and that the contents of the diary having been considered for arriving at the subjective satisfaction, before the detention order was passed, was not supplied to the detenu, especially when the detaining authority has referred in the statement of the detenu in paragraph (xvi) about the diary recovered from his residence and on enquiry the detenu had stated that the diary consisted of details of purchase, item value, in some cases, FOB value declared in the corresponding shipping bills and in some cases the actual drawback claimed from the Customs department were noted down. Secondly, he would submit that Form 13 which was also said to have been obtained by Thiru.S.Ganesh from the steamer agents and was also handed over to the driver on 25.5.2007 was also relied upon and the said document was also not supplied. Thirdly, he would submit that out of the documents seized in the office premises of M/s Nila Exporters, an authorisation letter dated 28.5.2005 stating that the detenu-Satish Kumar had given authorisation as if he is the General Manager of M/s Nila Exporters and as the said authorisation letter was considered as if it was prepared on 28.5.2005 instead of 28.5.2007, the said authorisation letter was not only shown to the detenu to obtain his comments, but also to Mr.Ishwar, who also speaks about the said document, and therefore https://hcservices.ecourts.gov.in/hcservices/ the said document is vital and material and the non-furnishing of the said document would vitiate the order of detention. Fourthly, he would submit that though the detenu has requested for supply of the above documents, they were not only supplied but also there was no explanation for the non supply. Failure on the part of the detaining authority to furnish the above documents in spite of the request had resulted in the detenu making an effective representation and therefore the order of detention is vitiated. 5. Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, on the other hand, would submit that all the above documents are only referred documents and therefore merely because those documents were not supplied to the detenu, it would not render the detention order vitiated. 6. We have carefully considered the above submissions. Before we delve upon the question as to whether the above documents are relied upon documents or merely referred to documents, we are inclined to deal with the last submission made by Mr.B.Kumar, learned senior counsel that in spite of a representation for furnishing those documents, they were not furnished to the detenu. In paragraph-9 of the affidavit filed in support of H.C.P.No.1208 of 2007, the petitioner has specifically averred that he is unable to make a proper representation in the absence of the above documents. In spite of his request, the documents were not supplied and there was no explanation for the non supply of those documents. Strangely also, there is nothing to indicate in the counter affidavit as to the said submission. There is absolutely no denial of the averments of the petitioner as to his request for the copies of the documents namely, diary, Form 13 and the authorisation letter. As far as the first document namely, diary is concerned, from paragraph (xvi) of the grounds of detention, it is seen that the said diary was recovered from the residence of the detenu and on enquiry, the detenu had stated that the diary consisted of details of the purchase, item value, in some cases, FOB value declared in the corresponding shipping bills and in some cases the actual drawback claimed from the Customs department were noted down. The above facts, which weighed the mind of the detaining authority, would be a relevant factor for passing the detention order. However, a perusal of paragraph (vii) of the grounds of detention, it has been mentioned that on receiving message about the arrival of the container at Chennai Port, Thiru Ganesh, a friend of the detenu, obtained Form 13 from the steamer agents and handed over to the lorry driver on 25.5.2007 and the same fact has also been referred to in paragraph (xiv), where the detaining authority has stated "that the exporters used to give the details of foreign buyers, but the goods were delivered in Dubai, that the liner were requested to indicate the Port of Discharge as indicated in the bill of lading and shipping bill because it is to be shown in the bank remittances for obtaining drawback, that further, they used to handover a set of bill of lading mentioning the Port of Discharge as in the shipping bill and used to obtain separate charge for the same, but in fact the https://hcservices.ecourts.gov.in/hcservices/ port of discharge is to be mentioned as Dubai in the bill of lading, that they used to keep the original bill of lading indicating port of discharge as Dubai with them; that in Form 13 the port of discharge would be mentioned as Dubai, but in the shipping bill the port of discharge would be different, that the port of discharge in Form 13 should be as in the shipping bill, but since the container has to be loaded in the vessel going to Dubai and that of Thiru.Ganesh, it was mentioned as Dubai in Form 13, that this will be contrary to the port of discharge mentioned in the shipping bill, that the bill of lading containing actual port of discharge was not given. The petitioner had in the affidavit in paragraph-8(c)(ii) has again averred that the document has not been supplied along with the grounds and if Form 13 is one of the documents annexed to the shipping bill, mere supply of shipping bill without Form 13 amounts to supply of truncated material as it is the requirement of law that the documents must be supplied as a whole. Therefore Form 13 has been chosen to be relied upon the statement of the detenu. The first respondent while dealing with the above averment, in paragraph-7 (c) of the counter affidavit has merely stated that Form 13 cannot have any effect on the above conscious involvement of the detenu to export inferior quality of goods to claim duty drawback and the non supply of Form 13 would not cause any prejudice. 7. Likewise, in paragraph-8(d) of the affidavit, the petitioner has averred that the grounds further say that the detaining authority has relied upon the letter of administration said to be dated 28.5.2005 given by the detenu stating him to be the General Manager of M/s Nila Exporters and this authorisation letter is referred to be as ante-dated, as it was prepared only on 28.5.2007. Therefore the learned senior counsel submitted that it is a seriously relied upon document, but not furnished. In controverting the said averment, the first respondent in paragraph-7(e) had only said that it cannot have any prejudice on the involvement of the detenu as set out. 8. The question as to whether the detaining authority should give copies of relied upon documents along with the grounds of detention and the non furnishing of the relied upon documents has the effect of vitiating the order of detention came up for consideration before the Apex Court in the judgment in Pownammal v. State of Tamil Nadu and another (1999 SCC (Crl.) 231) and the Apex Court has held that the non furnishing of such document would have the effect of vitiating the order of detention. However, when the document is not relied upon and it is only a referred document, failure to furnish such a document may not vitiate the order of detention. Subsequently, even a slight distinction is drawn by a Full Bench of this Court in the judgment in G.Kalaiselvi v. State of Tamil Nadu rep.by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department and another (2007) 2 MLJ (Crl.) 1841. After referring to Pownammal's case, the Full Bench in paragraph 21 has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Law is well settled that the detaining authority is required to give copies of the relied upon documents along with grounds of detention and non furnishing of relied upon document has the effect of vitiating the order of detention. See Pownammal v. State of Tamil Nadu and another, (1999) SCC (Crl.) 231. Where, however, a document is not relied upon, yet the detenu asks for copy of such document, which is either referred to or has got some bearing, it is the duty of the appropriate authority to furnish such copy or atleast indicate the reason why such copy is not supplied to the detenu in spite of specific request by the detenu. As already indicated, where a document asked for is on the face of it irrelevant, non furnishing of such document is immaterial. Where, however, the document has got some relevance, refusal to supply such copy, in spite of specific request, without any valid reason, may have the effect of vitiating the order of detention as the detenu is likely to be prejudiced, inasmuch as he would not be in a position to make an effective representation." 9. From a reading of the above Full Bench judgment, it appears to us that when a document has got some relevance, refusal to supply the copy in spite of specific request without valid reason will have the effect of vitiating the order of detention. The consideration as to the request for furnishing such copies has relevance with regard to the right to make an effective representation. It is now well settled that the right to make representation is an integral part of the fundamental right enshrined under Art.22(5) of the Constitution of India and such right cannot be denied unjustly or without any sufficient explanation. 10. A careful perusal of the detention order shows that the above three documents, namely, diary seized from the detenu, Form 13 and the letter of authorisation said to have been given by the detenu have relevance for passing the detention order. This is evident from paragraph-4 of the grounds of detention, where the detaining authority has stated "while arriving at the subjective satisfaction to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into consideration of all the facts and material referred to and relied upon in the grounds mentioned above and also the statement, mahazars and bail petition." The above paragraph-4 came up for consideration before the Apex Court in the judgment in A.Sowkath Ali v. Union of India and others (AIR 2000 SC 2662) and the Apex Court has held that "the grounds of https://hcservices.ecourts.gov.in/hcservices/ detention leaves no room of doubt and makes it absolutely clear that the State Government have taken into consideration and relied upon all the facts and material referred to in the grounds of detention mentioned therein and when the grounds of detention themselves record that the State Government have taken into consideration and relied upon what is stated in the grounds, it must also include all the documents". On the facts of this case, though the three documents in question, namely, diary, Form 13 and the authorisation letter even if considered to be referred to documents, they have some relevance for the detaining authority to arrive at the conclusion and therefore those documents should be considered only as relied upon documents. 11. It is not in dispute that a representation dated 4.8.2007 was made to the detaining authority for furnishing the copies of the above documents. However, the representation was rejected by order dated 22.8.2007 only by stating that all the documents which were taken into consideration for passing the detention order were supplied to the detenu. The explanation is so vague and the order does not mention as to which of the documents are referred to and which of the documents are relied upon to pass the order of detention. In the absence of any proper explanation and in the absence of specific denial of the averments made in the affidavit that these documents have been relied upon, in our considered view, the failure to supply the above documents, in spite of the request made on behalf of the detenu, has deprived the valuable right of the detenu to make a further representation to the Advisory Board and on this ground alone, the detention order is liable to be quashed. 12. For all the above reasons, the impugned order of detention dated 16.7.2007 made in G.O.SR.I/530-5/07 Public (SC) Department is quashed and H.C.P.No.1208 of 2007 is allowed. The detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case. 13. In view of the above, the impugned order of detention dated 16.7.2007 made in G.O.SR.I/530-6/07 Public (SC) Department is also quashed and H.C.P.No.1209 of 2007 is allowed. The detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case. ss Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government of Tamil Nadu Public (SC) Department Fort St.George Chennai 600 009 2. The Secretary to Government of India Ministry of Finance Department of Revenue New Delhi 3. The Public Prosecutor High Court, Madras 4. The Superintendent, Central Prison, Puzhal 5. The Joint Secretary to Government, Public (Law and Order) Fort St. George, Chennai-9. 2 ccs to Mr.S.Baskaran, Advocate, SR.18390 and 18391 1 cc to Mr.K.Gunasekar, Advocate, SR.19069 skd (co) dv/9.4. Order in H.C.P.Nos.1208 & 1209 of 2007 https://hcservices.ecourts.gov.in/hcservices/