IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19.1.2010 C O R A M The Honourable Mr. Justice C.NAGAPPAN and The Honourable Mr. Justice P.R.SHIVAKUMAR Habeas Corpus Petition Nos.1040 and 1047 of 2009 HCP.No.1040/2009 M. Bhavana .. 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 HCP.No.1047/2009 K. Anandan .. 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. https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai-600 066. . Respondents Prayer in HCP.No.1040/2009: Petition filed to issue a Writ of Habeas Corpus calling for the records relating to the detention in G.O.No.S.R.1/348-2/2009, dated 22.6.2009, passed by the first respondent herein and quash the same and direct the respondents to produce the body of the person of the detenu namely Teoomal Mahesh aged about 49 years, son of Teoomal before this Court, now detained under Sec. 3(1)(i) of the COFEPOSA Act in the Central Prison, Central Prison, Puzhal, Chennai and set him at liberty. Prayer in HCP.No.1047/2009: Petition filed to issue a Writ of Habeas Corpus calling for the records relating to the detention in G.O.No.S.R.1/348-4/2009, dated 22.6.2009, passed by the first respondent herein and quash the same and direct the respondents to produce the body of the person of the detenu namely Anandan Sivakumar aged about 34 years, son of Anandan before this Court, now detained under Sec. 3(1)(ii) of the COFEPOSA Act in the Central Prison, Central Prison, Puzhal, Chennai and set him at liberty. For petitioners in both HCPs : Mr. B. Kumar Senior Counsel for M/s.S.Palani Kumar and Kameshwaran For respondents 1 and 3 in both HCPs : Mr.M.Babu Muthu Meeran Additional Public Prosecutor For respondent No.2 in both HCPs : Mr.K.Ravi Anantha Padmanabhan Standing Panel Counsel for Customs and Central Excise COMMON ORDER C.NAGAPPAN, J. The petitioner in HCP.No.1040 of 2009 Teoomal Mahesh has challenged the order of detention in G.O.No.SR.1/348-2/2009 Public (SC) Department, dated 22.6.2009, made by the first respondent detaining him under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 2. The petitioner in HCP.No.1047 of 2009 Anandan https://hcservices.ecourts.gov.in/hcservices/ Sivakumar has challenged the order of detention in G.O.No.SR.1/348-4/2009 Public (SC) Department, dated 22.6.2009, made by the first respondent detaining him under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 3. Both the orders of detention were passed on the alleged incident when both the detenus arrived at Chennai International Airport on 27.5.2009 from Singapore. The detenu Teoomal Mahesh is stated to have declared Electronic Goods brought by him valued at Rs.1.5 lakhs and the detenu Anandan Sivakumar is stated to have declared the value of Electronic Goods brought by him as Rs. 2 lakhs. When the baggages of both the detenus were examined, they found to contain Cameras of brand Nikon, Sony and Canon and Philips HPI T 1000W Metal Halide lamps and the Officers assessed the value of the goods brought by the detenus at Rs.9,69,494/- and they were seized under mahazar. Voluntary statements from both the detenus were obtained on 28.5.2009 and they were arrested and remanded to judicial custody upto 11.6.2009. However, both the detenus were granted bail by the learned Additional Chief Metropolitan Magistrate (Economic Offences-II), Egmore by order dated 5.6.2009 with a direction to report before the Authorities and it was complied. Anandan Sivakumar gave a further statement on 15.6.2009 at Office of Directorate of Revenue Intelligence. It is in the above background, the detention orders came to be clamped on the detenus on 22.6.2009 and they are challenged in both the Habeas Corpus Petitions. 4. Even though several grounds have been raised by Mr.B.Kumar, learned Senior Counsel appearing for the petitioners, questioning the orders of detention, in our opinion, it is not necessary to advert to all such grounds inasmuch as the very contention that the assessment of the Detaining Authority regarding the valuation of Electronic Goods is not supported by cogent material and the orders of detention are passed on the basis of non-existent materials, is acceptable. To put it more specifically, the learned Senior Counsel contended that the seized goods were of lesser value and the Officers assessed the value of the goods excessively and the assessment is not supported by any cogent materials and inspite of specific requests made by the detenus, the concerned Authority had not furnished the materials/documents on the basis of which the Detaining Authority had come to the conclusion regarding the value of the goods seized. It has been further highlighted that the Detaining Authority had relied upon the value of the goods ascertained by the Officers from the internet, but the relied upon documents were not supplied to the detenus inspite of representations sent by them requesting to supply those documents to make effective and meaningful representations. 5. In the counter affidavit filed on behalf of the first respondent in both the petitions, the averments are https://hcservices.ecourts.gov.in/hcservices/ similar and it has been reiterated that the value of the goods were obtained through the Offence Register and wherever such values were not available in the said Register, the same were obtained through internet and adopted after giving abatement and also from market enquiry in respect of Philips bulbs brought in the baggage and the internet downloads and letter from Philips Lighting, Chennai have been placed before the Detaining Authority and furnished to the detenus along with the mahazar and detailed replies were given to the detenus to their representations. In the counter affidavit filed on behalf of the second respondent, it is stated that the report under Section 3(2) of the COFEPOSA Act, 1974 consisting of detention order, grounds of detention and the relied upon documents was forwarded by the State Government and the second respondent considered the same and found no reason to interfere with the detention orders. It is also stated therein that the representations dated 6.7.2009 sent by the detenus were received by them and after obtaining the comments, they were considered and rejected and the same was intimated to the detenus under acknowledgment. 6. Based on the above, the contention of the learned Senior Counsel for the petitioners is to the effect that the detenus in their individual representations, dated 4.7.2009 and 6.7.2009 respectively, made to the first respondent have stated that the Electronic Goods brought by them is far less in value and even at the time of judicial remand, no material was produced by the Authority to show valuation and therefore the learned Magistrate was forced to grant bail and the impact of the same was not perceived by the Detaining Authority and the detenu Teoomal Mahesh in his further representation, dated 17.8.2009, made to the first respondent and the Board, has enclosed the adjudication orders passed by the Authority giving value of identical goods which are far less and bind the Government and the Authorities have failed to consider the same and the rejection is based on improper consideration and the detention orders are vitiated by non- application of mind, since the particulars as to valuation were not furnished to the detenus and the detenus were not made known as to how the Detaining Authority has arrived at the conclusion regarding the value and they were deprived of making effective representations. To put it otherwise, it is submitted by the learned Senior Counsel that the value of the goods were not obtained through internet and adopted after giving abatement and therefore the subjective satisfaction of the Detaining Authority regarding the value of the goods vitiates the orders of detention. In support of his submission, the learned Senior Counsel placed reliance upon two decisions of Division Bench this Court in (1) KHATHIJA BEEVI VS. STATE OF TAMIL NADU REP. BY SECRETARY TO GOVT., PUBLIC (SC) DEPT., CHENNAI AND ANOTHER [(2006) 2 M.L.J. (Crl.) 487]; (2) KALIMATH SAHADIYA, RAMANATHAPURAM DISTRICT VS. STATE OF TAMIL NADU, REP. BY THE SECRETARY TO THE https://hcservices.ecourts.gov.in/hcservices/ GOVERNMENT, PUBLIC (SC) DEPT., CHENNAI AND OTHERS [(2009) 2 MLJ (Crl) 324] and three unreported decisions of Division Bench of this Court rendered in (i) H.C.P.No. 1118 of 2006 (GOVINDAN RAJAGOPAL VS. THE STATE OF TAMIL NADU, REP. BY SECRETARY TO GOVERNMENT, PUBLIC (SC) DEPT., AND TWO OTHERS, dated 9.3.2007; (ii) H.C.P. No.391 of 2006 (MUTHUMARIAPPAN VS. THE STATE OF TAMIL NADU, REP. BY THE SECRETARY TO GOVERNMENT, PUBLIC (SC) DEPT., AND TWO OTHERS), dated 27.9.2006 and (iii) H.C.P.No.29 of 2006 (ADHAM MEERA VS. THE STATE OF TAMIL NADU, REP. BY THE SECRETARY TO THE GOVERNMENT, PUBLIC (SC) DEPT., AND TWO OTHERS), dated 22.8.2006. 7. The learned Additional Public Prosecutor, appearing for respondents 1 and 3 in both the petitions, submitted that the goods were valued in the manner as set out in the mahazar with the help of Offence Register maintained by Customs, values downloaded from internet and on market enquiry and adopted after giving reasonable abatement thereon and the internet downloads and the letter from Philips Lighting, Chennai on the market enquiry in respect of the Philips bulbs have been placed before the Detaining Authority and furnished to the detenus along with the mahazar and the valuation of the goods made is correct and as regards the averments relating to the valuation in their representations, detailed replies were given to the detenus and the relied upon documents were also supplied to them and there is no procedural flaw or error in the orders of detention. 8. Mr.K. Ravi Ananthapadmanabhan, learned Standing Panel Counsel for Customs and Central Excise, appearing for the second respondent in both the petitions, also submitted that the value arrived at by the Authority for each of the items is mentioned in Annexures I and II and the dispute raised by the detenus with regard to valuation of the goods can be considered at the time of adjudication under the Customs Act. 9. The goods brought by both the detenus were seized under a single mahazar dated 29.5.2009 and the items brought by detenu Teoomal Mahesh are mentioned in Annexure I and the items brought by the detenu Anandan Sivakumar are mentioned in Annexure II of the mahazar. The valuation made on the goods, as mentioned in the mahazar, is extracted below for better appreciation. "For the purpose of valuation of the trade goods in baggage which were enlisted in the mahazar dated 27/28.05.2009, the officers referred to the Offence Register maintained by Customs. For certain items, the value was available in the Offence Register and the same is incorporated against respective items in the Annexure I & Annexure II of this mahazar. The value of the items which did not feature in the said Offence Register of Customs was https://hcservices.ecourts.gov.in/hcservices/ ascertained by the officers from the internet and abatement was provided on the prices so ascertained at 35% in cases where foreign currency value was available and @ 40% where Indian Rupee value was available and this abated value was taken as value for the trade goods brought in the guise of bona fide passenger baggage. The Officers informed us that the value of Philips HPI-T 1000W/643 Metal Halide Lamp in the Offence Register was Rs.811/- whereas, the price of the above item in internet shows different value of GBP 133.85 (+VAT of 15%), GBP 100 and GBP 80.61. Based on the lowest value of GBP 80.61 after giving abatement of 35% it worked out to Rs.3985/-. As there was apparently more difference between the internet value and Offence register price, the Officers informed that market enquiry was conducted with M/s Philips India Limited and they showed us a copy of M/s Philips India Limited letter dated 28/05/09. It indicated that they are importing these lamps from China and its MRP is Rs.5670/-. Therefore the price of lamp has been taken as Rs.3,402/- after giving abatement of 40% of MRP. By valuing the goods as above, the officers arrived at the total CIF value of the goods brought by Shri Anandan Sivakumar as Rs.6,36,290/- (Rupees Six Lakh Thirty Six Thousand Two Hundred and Ninety only) and the total CIF value of goods brought by Shri Teoomal Mahesh was arrived at Rs.3,33,204/- (Rupees Three Lakh Thirty Three Thousand Two Hundred and Four only) as detailed in the Annexure-I & Annexure- II of this mahazar." 10. The items found in the baggages of both the detenus were Cameras of brand Nikon, Sony and Canon and Black Berry T Mobiles and its accessories, LCD Colour T.V., Philips HPI T 1000W Metal Halide Lamps. Among them, Philips HPI T 1000W Metal Halide lamps are large in quantity and insofar as its valuation is concerned, the internet downloads and the letter from Philips Lighting, Chennai in respect of market enquiry have been placed before the Detaining Authority and furnished to the detenus along with the mahazar, but insofar as the valuation in respect of other items are concerned, it is stated in the mahazar that the value available in the Offence Register for some and for others internet value was ascertained and abatement was provided on the prices so ascertained and the abated value was taken as value for the said goods. The materials pertaining to this valuation of other items, on the basis of which the Detaining Authority had come to conclusion in respect of the value of the goods, should have been furnished to the detenus particularly when the detenus were insisting for such of the materials. Those materials pertaining to valuation have https://hcservices.ecourts.gov.in/hcservices/ not been furnished to the detenus and in such a case, it would amount to non-supply of relevant materials depriving the detenus the opportunity of making effective representations as held by the Division Bench in the decisions referred to above. 11. The detenu Teoomal Mahesh in his representation dated 17.8.2009 had enclosed adjudication orders passed by the Authority giving the value of identical goods, which are far less, but those relevant details were not considered while disposing of the representations and the Detaining Authority has not bestowed proper attention to the said contentions. The Supreme Court, in the decision in JOHN MARTIN VS. STATE OF WEST BENGAL [AIR 1975 SC 775] has laid down that the representation of the detenu cannot be rejected in a casual or mechanical manner and the same has to be considered with an unbiased mind. The said principle has been reiterated by the Apex Court in the subsequent decision in A.C.RAZIA V. GOVERNMENT OF KERALA [2004 S.C.C. (Crl.) 618]. The above decisions make it clear that consideration of representation of the detenu is not a mere formality and must receive closest and most zealous scrutiny for the purpose of deciding whether the detention is justified or not. There was failure on the part of the Detaining Authority in this regard and that would render the impugned orders of detention invalid in law. Having regard to our above conclusions, we are convinced that the impugned orders of detention cannot be sustained and the same are liable to be set aside. 12. Accordingly, both the Habeas Corpus Petitions are allowed and the impugned orders of detention dated 22.6.2009 are set aside. The detenus are directed to be set at liberty forthwith unless their custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vks Copy to:- 1. The Secretary to the Government of Tamil Nadu, Public (SC) Department, Fort St. George, Chennai – 600 009. 2. The Secretary to the Government of India, Ministry of Finance, Department of Revenue, (COFEPOSA – UNIT), New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent of Prisons, Central Prison, Puzhal, Chennai-600 066. 4. The Public Prosecutor, High Court, Madras. 5. The Section Officer, Criminal Section, High Court, Madras 104. 6.The Joint Secretary to Govt. Public (Law & Order) Department, Fort St.George, Chennai-9. +2ccs to Mr.S.Palanikumar, Advocate Sr 2919,2920 +1cc to Mr.K.Ravi Anantha Padmanaban, Advocate SR 2887 NSM(CO) km/28.1. HCP.Nos. 1040 and 1047 of 2009 https://hcservices.ecourts.gov.in/hcservices/