IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P.No.1445 of 2007 Smt.Hajirabeevi .. Petitioner -Vs- 1. The State of Tamilnadu represented by the Secretary to the Government Public (SC) Department Fort St.George Chennai 600 009 2. The Union of India represented by the Secretary to the Government Ministry of Finance Department of Revenue (COFEPOSA Unit), New Delhi 3. The Superintendent of Central Prison Central Prison, Puzhal Chennai 600 066 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records relating to the detention order in G.O.No.S.R.1/680-5/2007 dated 14.09.2007 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 Mohammed Rafi son of Abdul Razack before this Hon'ble 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.B.Kumar Senior Counsel for Mr.S.Palanikumar For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor for R1 & R3 Mr.M.Jagadeesan, SCGSC for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was delivered by D.MURUGESAN, J.) The petitioner-Hajirabeevi is the wife of the detenu by name Thiru.Mohamed Rafi, a resident of No.45-B/99, Third Floor, Thoppai Mudali Street, Royapuram, Chennai, who has been detained by the first respondent 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). In the grounds of detention, it is stated that based on specific intelligence that the detenu, a passenger arriving from Singapore by Flight No.SQ528/20.8.2007, was likely to bring high valued electronic goods of foreign origin in trade quantity as personal baggage and would attempt to smuggle the same without declaring the actual quantity and value to the Customs authority with an intention to evade payment of Customs duty, he was intercepted by the officers of Directorate of Revenue Intelligence at Customs Table No.9 and he filed the customs declaration on the same day. It was found that the detenu was in possession of two hand baggages and two checked in baggages. Though he has declared to have brought 25 cameras and 15 still cameras with a total value of Rs.2,50,000/-, it was found that the value of the goods is worth about Rs.7,72,500/-. Hence the goods were seized and the detention order came to be passed. 2. The detention order is questioned mainly on three grounds. Firstly, a pre-detention representation dated 5.9.2007 was sent to the Chief Commissioner with a covering letter requesting him to forward the same to the detaining authority. Though the said representation was received by the Chief Commissioner, the same was not placed before the detaining authority while the detention order was passed on 14.9.2007. The non-placement of the said representation before the detaining authority would vitiate the order of detention. Secondly, in the pre-detention representation, the detenu had specifically requested to compound the offence in terms of sub-section (3) of Section 137 of the Customs Act which came into effect from 10.9.2004 and he is also prepared to pay the customs duty. The failure on the part of the Chief Commissioner to place the said representation before the detaining authority has an adverse effect on the detenu as, had the said representation been placed before the detaining authority, it would have been considered and the detaining authority would have satisfied with the claim and consequently would have deferred from passing the impugned detention order. Thirdly, in any case the very claim was made in the statutory representation dated 31.10.2007 and while the said representation was considered and disposed of, there was no application of mind as to the said claim not only made in the representation dated 5.9.2007 but also in the https://hcservices.ecourts.gov.in/hcservices/ representation dated 31.10.2007. The failure on the part of the detaining authority to consider the said aspect and in the absence of any reason for not accepting the same would amount to failure to consider the representation properly, which is a valuable right of the detenu. 3. We have heard Mr.B.Kumar, learned senior counsel appearing for the petitioner who would, after reiterating the above grounds, also rely upon the judgments of the Supreme Court and the Division Bench of this Court as to the failure on the part of the authorities to consider such representation as well as the non- placement of the representation before the detaining authority before the order of detention was made in Ahamed Nassar v. The State of Tamil Nadu and others, JT 1999 (8) SC 252 and in Roja Begam v. State of Tamil Nadu rep.by Secretary to Govt., Public (SC) Department, Chennai and another (2007) 2 MLJ (Crl.) 274. 4. On the other hand, Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the first and third respondents would submit that the representation dated 5.9.2007 was received in the Customs department on 6.9.2007 and the Commissioner (Airport) on 10.9.2007 and the Joint Commissioner of Customs on 14.9.2007 and ultimately the same was received by the Assistant Commissioner of Customs on 17.9.2007 and forwarded to the Government, which received the same on 18.9.2007, and the same was disposed of on 10.10.2007. By the time the representation dated 5.9.2007 was received by the Government, the detention order came to be passed on 14.9.2007 and therefore the representation could not be placed before the detaining authority and consequently the non-placement of the said representation would not vitiate the order of detention on the facts of this case. He would also submit that the statutory representation dated 31.10.2007 was considered and the same was rejected on 20.11.2007. Though the claim of the detenu for compounding the offence in terms of sub-section (3) of Section 137 of the Customs Act was not stated in so many words in the order rejecting the representation, from the files it is seen that the remarks were submitted to the detaining authority as to why such a claim was not considered and therefore it must be taken that the said objection was properly considered by the detaining authority while the representation was rejected. In support of the above submission, the learned Additional Public Prosecutor would rely upon the judgment of the Supreme Court in Haradhan Saha v. The State of West Bengal and others (AIR 1974 SC 2154). 5. We have carefully considered the above submissions. So far as the first submission is concerned, it is by now well settled and even no authority is required for the proposition that when a pre-detention representation is made and which was received by the authorities concerned, such representation must be placed before the detaining authority for its consideration, apart from the https://hcservices.ecourts.gov.in/hcservices/ disposal of such pre-detention representation on merits. The failure to place such representation to the detaining authority would vitiate the order of detention. However, on the facts of this case, we find that without any further delay, the representation received on 5.9.2007 was sent to the Commissioner (Customs), who received it on 6.9.2007, the Commissioner (Airport) on 10.9.2007 and the Joint Commissioner on 14.9.2007 and the Chief Commissioner (Customs) on 17.9.2007, who forwarded the same to the sponsoring authority and consequently, the said representation was received by the Government only on 18.9.2007. Before the said representation was received by the Government, the detention order came to be passed on 14.9.2007 and therefore, on the facts of this case, it cannot be said that the representation had been purposely withheld and was not placed before the detaining authority, as effective steps were taken in forwarding the representation to the Government but, in the meantime, the detention order came to be passed. Hence the first contention of the learned senior counsel for the petitioner cannot be accepted on the facts of this case and accordingly, the same is rejected. 6. So far as the second and third contentions are concerned which can be dealt with together, it can be stated that the right of representation is a valuable right guaranteed under Article 22 (5) of the Constitution of India. By virtue of the said Article, a detenu has the right not only to make a statutory representation but also a pre-detention representation. The disposal of the representation cannot be farce or for the sake of disposal, as the disposal in effect has the effect of infringement of Article 22(5) and therefore once a representation is made, it should be disposed of after proper and due consideration by applying the mind to each and every claim or the statement made in the representation. 7. On the basis of the above principle of settled law, the case on hand should be considered. Of course, the failure on the part of the sponsoring authority to place the pre-detention representation to the detaining authority has not vitiated the order on the facts of this case as held by us. The question still remains is as to whether the failure on the part of the authority to consider the very same objections which have been made in the representation dated 5.9.2007 in the subsequent statutory representation dated 31.10.2007 would vitiate the detention order. In the representation dated 31.10.2007, it is specifically pleaded for compounding of the offence and also for payment of the customs duty in terms of sub-section (3) of Section 137 of the Customs Act. The detaining authority did not have the occasion to consider this objection made in the pre-detention representation. Nevertheless, when it is the fact that the detenu had mentioned in his statutory representation dated 31.10.2007 that he had earlier made a pre-detention representation on 5.9.2007 and in that representation he has also requested for compounding the offence, in such event, when the statutory representation was disposed of, the detaining authority ought to have applied his mind to the said fact and should have given reasons as to why the said representation was not placed before the detaining authority and https://hcservices.ecourts.gov.in/hcservices/ consequently was not considered. Failure to refer the same would amount to non-application of mind to the said objection made in the pre-detention representation dated 5.9.2007. That apart, the very same claim was also made in the subsequent statutory representation dated 31.10.2007 and the same was disposed of by the first respondent on 20.11.2007. A perusal of the order rejecting the said representation does not indicate the application of mind as to the above request of the detenu for compounding the offence. A faint attempt is made by the learned Additional Public Prosecutor by producing the records that the remarks were placed before the detaining authority before the representation was considered and the said remarks contain the reasons. In our considered view, the principle, namely, even in the absence of such reasons in the order and by that reason the order will not be vitiated, is not applicable to the case of preventive detention. As the right to make a representation is enshrined under Article 22(5), such right is inbuilt for the detenu to know as to how his objection or request was dealt with, considered and disposed of. Further, from the file note, we are unable to see as to whether the remarks submitted before the authorities were in fact considered by the detaining authority. In the absence of the above, in our considered view, there was no proper application of mind by the detaining authority as to the claim of the detenu for compounding the offence as well as the other objections which resulted in total non-application of mind and certainly would vitiate the order of detention. The judgment in Haradhan Saha's case (supra) relied upon by the learned Additional Public Prosecutor, of course, laid down the law that the order of the Government in rejecting the representation need not be a speaking order and all that is necessary is that there should be a real and proper consideration by the Government. But whether a representation was properly considered or not depends upon each case. Applying the very same law in the given case, failure on the part of the first respondent to give reasons, of course not in so many words, but in brief, as to why the request for compounding the offence, to which the detenu claims that he is entitled under sub-section (3) of Section 137 of the Customs Act, was not accepted should have been stated. In that context, we would refer to the judgment of the Supreme Court in Ahamed Nassar's case relied upon by the learned senior counsel for the petitioner. That was a case where the Supreme Court was considering two letters dated 23.4.99 and 19.4.99 containing factual assertions not only retraction of the earlier alleged confession but other matters. So far as the second letter was concerned, the Supreme Court after considering the same had observed as follows:- "26. The question is not whether the second part of the contents of those letters was relevant or not but whether they were placed before the detaining authority for his consideration. There could be no two opinions on it. It contains the very stand of the detenu of whatever worth. What else would be relevant if not this? It may be that the detaining authority https://hcservices.ecourts.gov.in/hcservices/ might have come to the same conclusion as the sponsoring authority but its contents are relevant which could not be withheld by the sponsoring authority. The letter dated 19th April, 1999 it reached the sponsoring authority and reached well within time for it being placed before the detaining authority. There is obligation cast on the sponsoring authority to place it before the detaining authority, which has not been done. Even the letter dated 23rd April, 1999 which reached the Secretary concerned at 3.00 PM on 26th April, 1999 which was much before the formal detention order dated 28th April, 1999. The Secretary concerned was obliged to place the same before the detaining authority. Respondent authority was not right in not placing it as it contains not only what is already referred to in the bail application dated 1st April, 1999 but something more." 8. The answer to the issue raised in this case is the above paragraph of the judgment of the Supreme Court. Whether the detenu is entitled to ask for compounding the offence under sub-section (3) of Section 137 of the Customs Act or not is not the relevant test for consideration and disposal of the representation by giving reasons. It is always open to the respondents to inform the detenu that his request was rejected on a particular ground. The question is in the event such ground is not referred to while the representation was rejected, it would certainly amount to failure to apply the mind which consequently vitiates the order of detention. 9. A Division Bench of this Court in the judgment in P.M.S.Mohiadeen Sahib v. State of Tamil Nadu represented by the Secretary to Government, Public (SC) Department, Chennai and others (2006) 1 M.L.J.(Crl.) 131 has in fact held that consideration of the representation of a detenu is not a mere formality, but the same has to be considered with an unbiased mind and closest and most zealous scrutiny for the purpose of determining whether the detention is justified or not. In fact, recently this Court in the judgment in Roja Begam's case (supra), while considering the effect of non-consideration of the representation has observed that the representation made on behalf of the detenu is required to be considered with all seriousness and it should not be rejected in a mechanical manner. Holding so, the Court had quashed the detention order. 10. As we have found on facts that in both the pre-detention representation as well as statutory representation the detenu has pleaded for compounding the offence and the order rejecting the representation does not indicate of consideration of the said plea, the non-consideration of the same would vitiate the order of detention, as the order rejecting the representation has been made mechanically without applying the mind. https://hcservices.ecourts.gov.in/hcservices/ 11. For all the above reasons, the habeas corpus petition is allowed and the impugned order of detention dated 14.9.2007 passed by the first respondent is set aside. 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 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 (COFEPOSA Unit) New Delhi 3. The Superintendent of Central Prison Central Prison, Puzhal Chennai 600 066 4. The Joint Secretary to Govt, Public (Law and Order), Fort St George, Chennai 9. 5. The Public Prosecutor High Court, Madras + 1 cc to Mr. S. Palanikumar SR No. 23145 H.C.P.No.1445 of 2007 BS(CO) SR/15.5.2008 https://hcservices.ecourts.gov.in/hcservices/