IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.11.2011 CORAM THE HON'BLE MR. JUSTICE K. MOHAN RAM and THE HON'BLE MR. JUSTICE G.M. AKBAR ALI H.C.P.No.108 of 2011 Smt. Sowdun Bivi ..Appellant Vs. 1. The State of Tamil Nadu represented by the Secretary to the Government, Public (SC) Department, Fort St. George, Chennai-9. 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 – 66. ..Respondents Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus calling for the records relating to the detention order in G.O.No.S.R.1/415-13/2010 dated 7.1.2011 passed by the first respondent and quash the same and direct the respondents to produce the body of the person of the detenu, namely, Basheer Ahmedson of Shahul Hameed before this Court now detained under Sec.3(1) (i) of the COFEPOSA Act in the Central Prison, Puzhal, and set him at liberty. For Appellant : Mr.S. Palani Kumar For Respondents No.1 & 3 : Mr.M.Maharaja, Additional Public Prosecutor For Respondent No.2 : Mr.S. Udayakumar SSCCG https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (K. Mohan Ram, J.) The petitioner is the wife of the detenu-S. Basheer Ahmed, 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.No.SR1/415-13/2010 Public (SC) Department, dated 7.1.2011. 2. In the grounds of detention it is alleged that on the basis of specific intelligence to the effect that Thriu. S.Basheer Ahmed, a passenger, holder of passport No.Z-1761205, arriving by Singapore Airlines Flight No.SQ.528/9.6.2010 would be attempting to smuggle electronic goods in trade quantity in the guise of personal baggage without declaring them to the Customs authorities or without paying appropriate duty, the Officer of Directorate of Revenue Intelligence, Chennai, intercepted him in the presence of independent witnesses at the arrival hall of Chennai Anna International Airport, Chennai on 9.6.2010. In the Customs declaration he has declared the number of his checked in baggage as two and hand baggage as one and the value of the dutiable goods brought by him as Rs.1,10,000/-. He identified checked in baggage and he informed that he did not possess the counterfoil of the said baggage tag. But the officers of Directorate of Revenue Intelligence, Chennai examined the two checked in baggage and found to contain electronic goods of 110 Nos. of 1 GB RAMs, 246 Nos. of 2GB DDR3 RAMs, 50,227 Nos. of Kingston 2 GB SD Micro Memory cards and 7097 Nos. of PQ1 2 GB SD Micro memory cards in trade quantities, as inventorised in the annexure to the mahazar. 3. To the specific query made by the officers whether he was having any document for the purchase of the above mentioned electronic items, he replied that in the negative. The officers valued the electronic goods found in the said baggage based on the values obtained from the internet (National import Data Bank) and the same was shown to him and the independent witnesses and he agreed with the values found therein. Accordingly, the officers of DRI, Chennai arrived at a CIF value at RS.1,40,19,940/- (market value approximately at Rs.2.10 Crores). The officers of DRI seized the said electronic goods under a mahazar proceedings, dated 9/10.6.2010 along with his flight ticket, boarding card, baggage tags and the Customs declaration. 4. In his statement, dated 10.6.2010 given under Section 108 of the Customs Act, 1962, he had stated that he can speak, write, read and understand Tamil well; that on 9.6.2010 night when he arrived at Chennai Anna International Airport from Hong Kong via https://hcservices.ecourts.gov.in/hcservices/ Singapore in flight SQ.528, the officers examined and recovered the electronic goods viz., RAMs and memory cards used in cellphones in his presence to the value of Rs.1,40,19,940/- and seized them under a mahazar dated 9/10.6.2010 and he has also signed in the mahazar for having present at the time of examination; the above goods brought by him belongs to Thiru. Jahir Bhai of Seven Wells area, Chennai and on his arrangements he went to Hong Kong, and as instructed by him, he met Thiru. Westly, a Chinese National, at the premises, 7/A Kawing Building, 27, Gran Ville Road, TST and brought goods i.e., on earlier two occasions on 31.5.2010 and 6.6.2010; that due to poor economic condition of his family and he was not able to get even a casual labour job and Thiru. Jahir Bhai promised that he would bear the ticket and other expenses and he would give him Rs.3000/- to Rs.3500/- per trip, he agreed the said job and concerned himself in smuggling goods for Thiru. Jahir Bhai and requested to excuse his mistake and the statement was given by him voluntarily in his own hand without any threat or coercion. 5. The officers of the DRI, Chennai conducted search in his residence at No.28, I Floor, Pasuvayyan Street, Old Washermenpet, Chennai-21 and no incriminating material was recovered. As he attempted to smuggle electronic goods in trade quantities, he was arrested by the Senior Intelligence Officer, DRI, Chennai on 10.6.2010 and on the same day, a telegram was sent to his wife intimating his arrest. He was produced before the Additional Chief Metropolitan Magistrate (E.O.1), Egmore, Chennai at his residence on 10.6.2010, who remanded him to judicial custody till 24.6.2010. 6. A bail petition, dated 14.6.2010 was filed by him before the Additional C.M.M. (E.O.1), Egmore, Chennai and the same was contested by the DRI, Chennai and by order, dated 6.7.2010, the bail petition was dismissed. His remand was extended by the Additional, C.M.M.(E.O.1), Egmore, Chennai, by orders, dated 24.6.2010, 8.7.2010 and 22.7.2010 and the remand was lastly extended upto 5.8.2010. Another bail petition, dated 15.7.2010 was filed by him before the Additional C.M.M.(E.O.1) Egmore, Chennai contending inter alia that he did not give any voluntary statement and he retract the same as involuntary statement and prayed the Court to enlarge him on bail. The same was contested by the DRI, Chennai and by order, dated 4.8.2010, he was enlarged on bail with a direction to appear before the respondent office on all working days at 10.30 a.m. until further orders. By order, dated 7.9.2010, the condition imposed was relaxed and he was directed to appear before the DRI, Chennai once in a week or on every Monday until further orders. By yet another order, dated 2.11.2010, he was directed to appear before the DRI, Chennai, once in 15 days, i.e. on every alternative Monday. Accordingly, he was appearing before the officers of the DRI, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 7. A representation, dated 30.8.2010 addressed to the Minister for Law, Courts and Prisons was received from his wife stating that the statement from him was obtained by force and he was innocent and requested not to initiate any action under the COFEPOSA Act and to release him from the case. After duly considering the representation, the detaining authority rejected the same. 8. A show cause notice, dated 22.11.2010 was issued by the DRI, Chennai, under the provisions of the Customs Act, 1962 calling upon him and any other person claiming ownership of the seized goods to show cause to the Commissioner of Customs, Airport, Chennai, within 30 days from the date of receipt of the notice as to why the seized goods should not be confiscated and penalty should not be imposed on him and any other person claiming ownership of the seized goods. A reply, dated 4.12.2010 was received from Thriu. S.Palani Kumar, Advocate on his behalf requesting permission to re-export the goods and order to revalue the goods and impose lesser redemption fine, personal penalty and show leniency and mercy while passing the order. On the date of seizure, the value of the seized electronic goods as per the internet download was Rs.1,40,19,940/- (CIF value). 9. It is further alleged in the grounds of detention that Thiru. Basheer Ahmed, has attempted to smuggle electronic goods valued at Rs.1,40,19,940/- by mis-declaring the value of goods and rendered the above said goods liable for confiscation under Customs Act, 1962 and thereby committed an offence punishable under Section 132 and 135 of the Customs Act, 1962. He had knowingly and consciously attempted to smuggle the electronic goods into India by way of concealment and gross mis-declaration to Customs Department for evasion of customs duty. The Government has satisfied that the nexus between the date of the incident and passing of the detention order as well as the object of his detention has been maintained. From the above materials, the State Government is satisfied that he had indulged in smuggling of goods. While arriving at the subjective satisfaction to detain him under the COFEPOSA Act, 1974, the State Government has taken into consideration all the facts and materials referred to and relied upon in the grounds mentioned above and also the statements, mahazars, bail petitions, representations and show cause notice etc. 10. The State Government is satisfied that on the facts and material mentioned above, if he remains at large, he will indulge in such prejudicial activities in future, and even though his passport is produced before the court there is every possibility of continuing his business by illegal way. The State Government is also satisfied that the further recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities. The State Government, https://hcservices.ecourts.gov.in/hcservices/ therefore, considers that it is necessary to detain him under Section 3(1)(i) of the COFEPOSA Act, with a view to prevent him from indulging in the smuggling of goods in future. 11. Questioning the aforesaid detention order, the above H.C.P. has been filed. 12. Heard both. 13. Even though several grounds have been raised by Mr.S.Palani Kumar, the learned counsel for the petitioner, questioning the order of detention, in our opinion, it is not necessary to advert to all such grounds inasmuch as there is unexplained delay of 7 days in considering the representation, dated 20.1.2011. 14. The learned counsel submitted that a representation dated 20.1.2011 was sent by the petitioner and the same was received in the COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi on 28.1.2011 from the State Government of Tamil Nadu; as seen from the counter filed on behalf of the second respondent, parawise comments on the representation along with the English translation thereof were called for from the Sponsoring Authority, viz., the Additional Director General, Directorate of Revenue Intelligence, Chennai as well as the detaining authority, viz., Public (Law & Order) Department, Government of Tamil Nadu, Chennai on 28.1.2011 itself. The comments of the Sponsoring Authority on the representation along with English translation of the same sent vide letter dated 28.1.2011 were received in COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 2.2.2011. The comments of the Detaining Authority on the representation sent vide letter, dated 3.2.2011 were received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 7.2.2011. COFEPOSA Section submitted the file alongwith all the relevant files and documents to the Deputy Secretary (COFEPOSA) on 7.2.2011 for examination. After considering the entire materials, the Deputy Secretary (COFEPOSA) submitted the file with a comprehensive note to the Joint Secretary (COFEPOSA) on 14.2.2011. The Joint Secretary (COFEPOSA), in turn, submitted the file with her considered views, to the Special Secretary and Director General, Central Economic Intelligence Bureau, New Delhi on 14.2.2011. After considering the same, the Special Secretary rejected it on 15.2.2011. The file was received in the COFEPOSA Unit on 15.2.2011. The petitioner and the detenu were intimated about the rejection of the representation, dated 20.1.2011 vide memorandum, dated 15.2.2011 and the same was received by the detenu on 18.2.2011. https://hcservices.ecourts.gov.in/hcservices/ 15. On the basis of the aforesaid details furnished in the counter filed on behalf of the second respondent, the learned counsel for the petitioner submitted that though the file along with all the relevant files and documents were received by the Deputy Secretary (COFEPOSA) on 7.2.2011, he had submitted the file with his comprehensive note to the Joint Secretary (COFEPOSA) on 14.2.2011 only. Thus, there is a delay of 7 days in considering the representation. 16. The learned counsel submitted that the second respondent in the counter filed has not explained the said delay of 7 days, i.e. from 7.2.2011 to 14.2.2011. According to the learned counsel, this unexplained delay of 7 days vitiates the detention order and therefore, the H.C.P. has to be allowed. 17. In support of his contention, the learned counsel based reliance on the following decisions:- a. Rajammal v. State of Tamil Nadu (1999 AIR SCW 139) In the said decision, in paragraphs 8 and 9, the Hon'ble Apex Court, has laid down as follows:- “8. It is a constitutional mandate of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words “as soon as may be” in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining the delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India (1991) 1 SCC 476 : (1991 AIR SCW 362). The following observations of the Bench can profitably be extracted here (Para 12 of AIR): “It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words “as soon as may be” occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered https://hcservices.ecourts.gov.in/hcservices/ and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” “9. The position, therefore, now is that if delay was caused on account of any indifferent or lapse in considering the representation such delay will adversely affect further detention of the petitioner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.” 18. Relying on the law laid down as above, in paragraph 12, the Hon'ble Apex Court has held as follows:- “12. We are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu.” 19. In an unreported decision of the Division Bench of this Court, dated 27.11.2010 rendered in H.C.P.No.1385 of 2000, in paragraphs 2 and 3, the Division Bench has laid down as follows:- “2. From the aforesaid extract of the counter affidavit, we are satisfied that there is a time lag between 11.9.2000 and 18.9.2000 which remains unexplained. The legal position is that the representation preferred by the detenu has to be considered on day-to-day basis and each day's delay should be explained by the authority concerned. No such fact or explanation is forthcoming. 3.Admittedly there is no explanation offered for the delay. The file was lying idle, unattended for seven days from 11.9.2000 to 18.9.2000. Therefore, there is a clear infraction of the constitutional mandate of Art. 22 https://hcservices.ecourts.gov.in/hcservices/ (5). Accordingly, we quash the order of detention and allow this Habeas Corpus petition.” 20. Countering the said submissions, Mr.S.Udaya Kumar, the learned Sr.S.G.S.C., made the following submissions:- a. The learned counsel submitted that on 7.2.2011, which was a Monday, the relevant files and documents were received by the Deputy Secretary (COFEPOSA). From 7.2.2011 to 11.2.2011, namely, Monday to Friday, were all working days and 12.2.2011 and 13.2.2011, respectively being Saturday and Sunday, were holidays. On 14.2.2011 the Deputy Secretary has submitted the entire file with his comments to the Joint Secretary (COFEPOSA) and on the same day, it was dealt with by the Joint Secretary (COFEPOSA) and submitted the file to the Special Secretary and Director General, Central Economic Intelligence Bureau, New Delhi, who considered and rejected the same on 15.2.2011 itself. The rejection order has been despatched on 15.2.2011 and the same has been received by the detenu on 18.2.2011. Thus, according to the learned counsel there was no inordinate delay in considering and disposing the representation submitted by the petitioner and the detenu. Between 7.2.2011 and 11.2.2011, there was only five working days and the five working days taken by the Deputy Secretary for considering and forwarding the same to the next superior cannot be considered to be an inordinate delay. Though it has not been explained in the counter affidavit, according to him, it has to be presumed that the file was under continuous consideration of the Government and there was no inordinate delay. b. The learned counsel relying on the decision of the Apex Court reported in 2011 (2) TLNJ 361 (Criminal) (D.M.Nagaraja vs. The Government of Karnataka and others) submitted that there is no constitutional mandate under Clause (5) of Article 22 much less any statutory requirement to consider the representation before confirming the order of detention. The learned counsel submitted that the competent authority can consider the representation only after the order of confirmation and as such the contention raised by the learned counsel as if there was delay in consideration is baseless and liable to be rejected. c. In the aforesaid decision, in paragraph 15, the Apex Court has laid down as follows:- “Though leaned counsel for the appellant has not raised the objection i.e. Delay in disposal of his representation since that was the only contention before the High Court, we intend to deal with the same. We have already stated that the detention order was passed on 22.9.2010 by the Commissioner of Police, Bangalore City. https://hcservices.ecourts.gov.in/hcservices/ The said order was approved by the Government on 30.9.2010 and the case was sent to Advisory Board on 8.10.2010 and the Board sat on 4.11.2010. The Government received the report of the Advisory Board on 10.11.2010. Confirmation detaining the detenu for a period of 12 months was issued on 16.11.2010. Representation of the detenu through Central Prison was sent on 6.10.2010 i.e. before passing of the confirmation order by the Government. This Court in K.M. Abdulla Kunhi & B.L. Abdul Khader vs. Union of India & others and Stateof Karnataka & Others (1991) 1 SCC 476 (CB) has clearly held that the authority has not constitutional duty to consider the representation made by the detenu before the order of confirmation of the detention order. There is no constitutional mandate under Clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. In other words, the competent authority can consider the representation only after the order of confirmation and as such the contentions raised by the appellant as if there was delay in consideration is baseless and liable to be rejected. As pointed out above, the counsel for the appellant did not raise any objection as regards to the same”. d. The learned counsel submitted that as per Section 8(f) of the COFEPOSA Act, in every case where the Advisory Board has reported sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. e. In this case, according to the learned counsel, after the report of the Advisory Board was received the order of detention passed against the detenu was confirmed on 15.4.2011 only, whereas the representation of the detenu dated 20.1.2011 had been rejected as early as 15.2.2011 and rejection order was served on 18.2.2011 and therefore, according to the learned counsel, as per the aforesaid decision of the Apex Court there is no constitutional mandate under Clause (5) of Article 22 of the Constitution of India to consider the representation before confirming the order of detention. f. In this case, the representation had been considered and disposed of long before the date of confirmation of the detention order and therefore, the contention of the learned counsel for the petitioner that there was delay in consideration is baseless and liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ g. The learned counsel further submitted that in the decision reported in Union of India vs. Laishram Lincola Singh Alias Nicolai ((2008) 5 SCC 490), it has laid down that the delay in considering the representation has been properly explained or not would depend upon the facts of each case and cannot be judged in vacuum. The learned counsel submitted that according to the said decision there should be no inaction or lethargy in consideration of the representation and where there is a proper explanation for the time taken in disposal of representation, even though it may be long, the continued detention of the detenu would not be rendered illegal in any manner. Therefore, the learned counsel submitted that the so-called delay cannot be considered as inordinate delay as the same has been explained properly. 21. The learned Additional Public Prosecutor for the first respondent adopted the contentions putforth by the learned counsel for the second respondent. 22. We have considered the aforesaid submissions and perused the materials available on record. 23. Admittedly, the representation of the petitioner, dated 20.1.2011 came to be rejected by the first respondent on 15.2.2011 and the same was served on the detenu on 18.2.2011. As seen from the counter affidavit filed on behalf of the second respondent, the comments of the Detaining authority on the representation sent vide letter dated 3.2.2011 have been received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 7.2.2011. COFEPOSA Section submitted the file along with all the relevant files and documents to the Deputy Secretary (COFEPOSA) on 7.2.2011 for examination. After conducting the detailed examination of the issues raised in the representation and the comments of the Sponsoring Authority and Detaining Authority thereon, the Deputy Secretary (COFEPOSA) submitted the file with a comprehensive note to the Joint Secretary (COFEPOSA) on 14.2.2011. 24. In the counter affidavit except mentioning the dates on which the respective authorities considered and forwarded the file, the delay between 7.2.2011 when the Deputy Secretary received the files and 14.2.2011 when he forwarded the files to the Joint Secretary has not at all been explained. 25. The point for consideration is as to whether this unexplained delay will vitiate the order of detention or not? 26. While the learned counsel for the petitioner bases reliance on the decision of the Full Bench of the Apex Court reported in 1999 AIR SCW 139 for supporting his contention that the delay of 7 days when the file was lying with the Deputy Secretary https://hcservices.ecourts.gov.in/hcservices/ has not been properly explained by the second respondent in his counter affidavit, the order of detention