IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.1707 of 2007 Meharnisabanu .. Petitioner vs 1.The State of Tamilnadu represented by The Secretary to the Government Public (SC) Dept., Fort St. George, Chennai 600 009. 2.The Union of India represented by The Secretary to the Government Ministry of Finance, Dept. of Revenue, New Delhi 3.The Superintendent of Central Prison Puzhal, Chennai 600 003. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records relating to the detention order in G.O.No.S.R.1/905-3/2007 dated 30.10.2007 passed by the first respondent herein and quash the same and direct the respondent to produce the body of the person of the detenu namely Ameer Ali Sarpudeen, son of Ameer Ali before this Court, now detained under Sec.3(1)(i) of the COFEPOSA Act in the Central Prison, Puzhal, Chennai, and set him at liberty. For Petitioner : Mr.S.Palanikumar For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor for RR1 & 3 Mr.P.Kumaresan ACGSC for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the first respondent dated 30.10.2007, whereby an order of detention came to be passed under Sec.3(1)(i) of the COFEPOSA Act against the husband of the petitioner namely Ameer Ali Sarpudeen. 2.The affidavit in support of the petition is perused and counter affidavit also. The order under challenge is also perused. 3.Concededly, on 27.9.2007, the Officers attached to the Air Intelligence Unit, Madras Customs, who were present at the customs room situated in the departure hall of Anna International Airport, Chennai, opened and examined one hand baggage and three checked in baggage belonging to the petitioner, and also examined another baggage which stood in the name of one Murugaish, a passenger bound for Singapore via Singapore, IC flight 555/29.9.2007. An enquiry was made whether the detenu was having any foreign currency, and he replied in the negative. Thereafter, entertaining suspicion, the Officers examined the baggages containing flowers and betel leafs. During the course of the search of the person, it was noticed by the authorities that he was found in possession of 2000 US $ in his pant pocket and also found 3750 Euro currencies concealed in his body, and also recovered 20600 Euro in the carton box, and they have seized the assorted foreign currency equivalent to Indian Rs.14,69,931/- on 27.9.2007. He was not in possession of any license or permit to carry the foreign currency. He was arrested for the alleged violation of the Customs Act. The detenu gave a statement that he has studied upto 2nd Standard; that he knew only Tamil; and that he used to go to abroad and bring electronic goods. He further added that one Razack gave the currencies to him with instruction to hand over to a person who would identify him at the Airport, Singapore, for which he would be paid monetary consideration of Rs.8000/-. The said incident had taken place on 27.9.2007. The detenu was arrested under Sec.104 (1) of the Customs Act on the same day, and he was also produced before the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, on 28.9.2007, and remanded to judicial custody till 12.10.2007. Further, a bail application was filed, and bail was granted in his favour on 3.10.2007, on condition to appear before the Customs, Chennai, until further orders. While the matter stood thus, the detaining authority has passed the detention order, and the same was executed. The grounds of detention and the booklet were also served on the detenu on 16.11.2007. The detenu's wife, the petitioner herein, sent a representation to the State Government and also to the Central Government, and the same were rejected. Before the Advisory Board, a representation was placed, and the same was also rejected on 28.1.2008. In such circumstances, this petition came to be filed before this Court. https://hcservices.ecourts.gov.in/hcservices/ 4.At the time when the matter is taken up for consideration, the learned Counsel for the petitioner inter alia made the following submissions: (1) Firstly, it was actually made known to the Officers concerned that he had studied only upto 2nd Standard, and he was conversant only with Tamil and not any other language. (2) It is true that the Tamil version of the order was actually served upon him; but, a reading of the same would indicate that it would contain entirely different particulars, and thus, he was unable to understand what it contained, and thereby, he was prevented from making effective representation. Under such circumstances, the order is infirm. 5.The learned Counsel would further add that the sponsoring authority prepared a mahazar on 27.9.2007 wherein it was mentioned that 2000 US $ were recovered from the pant pocket of the detenu and also found 3750 Euro currencies concealed in the body and also recovered 20600; that further the sponsoring authority had also prepared another mahazar on 28.9.2007, wherein it was found that 2000 US $ and 3750 Euro currencies were recovered in the rectum; that both these mahazars are found in the booklet; that this discrepancy remained unexplained till this time; and that once the sponsoring authority made such discrepant statement, a duty was cast upon the detaining authority to call for a clarification, but not done so. 6.Added further the learned Counsel that the detenu arrived on 27.9.2007; but, according to the arrest memo supplied in English, it is found as if he was arrested on 27.9.2007, but in the Tamil version, it is mentioned as 27.7.2007; that this is another discrepancy; and that while these discrepancies were noticed, the authority should have called for an explanation but not done so. 7.In order to substantiate his contention that when the documents were given to him, it should have been given in the language known to him, and if not done, the purpose for which it was served upon him would be defeated, the learned Counsel relied on a decision of the Apex Court reported in 1981 SUPREME COURT CASES (CRI) 463 (LALLUBHAI JOGIBHAI PATEL V. UNION OF INDIA AND OTHERS). 8.The Court heard the learned Additional Public Prosecutor for the State and also the learned Additional Central Government Standing Counsel, paid its anxious consideration on the submissions made and also made a thorough scrutiny of all the materials available, and it makes the following order. 9.It is not in controversy that the petitioner herein following an interception that was made on 27.9.2007, at the Airport, Madras, was found to be in possession of foreign currencies for which there was no permit or license. According to the Department, he has violated the provisions of the Act. Further, he was arrested on 27.9.2007, and he was also produced https://hcservices.ecourts.gov.in/hcservices/ before the Additional Chief Metropolitan Magistrate (E.O.I), Madras. He was also subsequently granted bail. According to the department, there was a confessional statement given by him, and all the materials were available. While the materials were placed by the sponsoring authority before the detaining authority, it has recorded in the course of his order that he has arrived at the subjective satisfaction that the detenu had violated the provisions of the Act, and in order to prevent him from indulging in such activities in future, it has become necessary to pass an order of detention under the provisions of the Act, and accordingly, it has been done also. 10.Now, the contentions put forth by the learned Counsel for the petitioner require consideration. In the case on hand, it is not in controversy that while the detenu gave a statement, he made it clear that he has studied upto 2nd Standard, and he was conversant only with Tamil. Thus, it would be quite clear that he is not conversant with any other language. True it is, a copy of the order was served upon him along with the grounds under which he was detained and the Tamil version also. Once the Tamil version was given, the authority should see that it is given proper. But, in the instant case, there was no sufficient compliance of the mandatory requirements as contemplated under Article 22 of the Constitution. "Communicate" as could be seen under the said Article, is a strong one which would mean that he must be not only put on notice, but also he should have got the clear knowledge of the basic facts constituting the 'grounds' on which he is actually detained. In the case on hand, it is true that a Tamil version was given. This Court is of the considered opinion that if an English version is not correctly translated in Tamil and given, he could not understand, and the purpose for which it was given was to enable him to give purposeful, meaningful and effective representation. So long as he is not given correct translated version in which he could understand, not only the purpose will not be served, but also it would be defeated. In such circumstances, it can be well stated that he was actually not able to give effective representation as the law would require. Thus, it was a violation of the valuable right vested upon the detenu. This Court is of the view that the order under challenge has become infirm. 11.As rightly pointed out by the learned Counsel for the petitioner, the date of arrest as found in the English version and in the Tamil version, is found to be different. Two mahazars were prepared, and they contain different facts as to the recovery of the currencies. All would go to show that when such discrepancies were found from the materials placed by the sponsoring authority, a duty is cast upon the detaining authority to call for necessary explanation; but, in the instant case, he has miserably failed to do so. When all these things are brought to the notice of the Court, this Court cannot, but to term the order under challenge as infirm. It would also be indicative of the lack of application of mind on the part of the detaining authority. Therefore, on the grounds made above, it would suffice to set aside the order. https://hcservices.ecourts.gov.in/hcservices/ 12.In the result, this habeas corpus petition is allowed setting aside the order of the first respondent. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Nsv/ Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Secretary to the Government Public (SC) Dept., Fort St. George, Chennai 600 009. 2.The Secretary to the Government Ministry of Finance, Dept. of Revenue, New Delhi 3.The Superintendent of Central Prison Puzhal, Chennai 600 003. 4. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 5.The Public Prosecutor High Court, Madras. + 1 cc to Mr. S. Palanikumar, Advocate SR No. 32144 HCP No.1707 of 2007 MA(CO) SR/3.7.2008 https://hcservices.ecourts.gov.in/hcservices/