IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN HCP.No.2088 of 2008 Elizabeth Rani ...Petitioner Vs. 1. The State of Tamil Nadu, rep. by the Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009. 2. The Union of India, rep. by the Secretary to Government, Ministry of Finance, Department of Revenue (COFEPOSA Unit), Central Economic Intelligence Bureau, Janpath Bhavan, VI Floor, 'B' Wing, Janpath, New Delhi – 110 001. 3. The Superintendent of Central Prision, Central Prison, Puzhal, Chennai. ..Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus to call for the records relating to the detention order in G.O.SR.1/683-3/08 Public (SC) Dept. dated 18.11.2008 passed by the first respondent and quash the same and direct the respondents to produce the body of the person of the detenu, V.John Karunakaran son of Viagulraj now detained in the Central Prison, Chennai as COFEPOSA detenu before this Honourable Court and set him at liberty. For petitioner :Mr.Habibullah Basha, Senior counsel for Mr.M.M.K.Alifudeen For Respondents: Mr.N.R.Elango, A.P.P. for R1 & R3 Mr.T.Chandrasekaran,SCGSC for R2. https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to an order of the first respondent dated 18.11.2008 whereby the detenu one John Karunakaran was ordered to be detained under the provisions of Section 3(1)(i) of the COFEPOSA Act, 1974. 2. The affidavit filed in support of the petition along with the grounds of attack and also all the materials placed in particular the order under challenge are perused. The Court heard the learned Senior counsel appearing for the petitioner and also the learned counsel appearing for the respondents. 3. The short facts which led the first respondent to make the order under challenge can be stated as follows: On 16.7.2008, the said detenu, holders of Indian Passport issued at Chennai and having the residential address at Madras arrived to Chennai Airport by Singapore Airlines Flight from Hongkong. The Customs officials, entertaining suspicion, seized and detained one Swiss made Jaeger Le-Coultre-Coultre Wrist Watch and one Omega Constellations Wrist watch since he has declared the value of the goods brought by him as Rs.1,800/- in the Customs Declaration Card under Detention Receipt (DR) No.58739 dated 16.7.2008 for the purpose of valuation. On 28.7.2008, the watches which were retrieved from the Airport Warehouse on 23.7.2008 for the purpose of valuation in the market and re-lodged in the Airport Warehouse on the same day with Seal No.31 was opened in the presence of witnesses for valuation by Thiru. Gurinder Singh of M/s. JLC Boutique, Oberoi Hotel at New Delhi, who is the authorised importer in India for M/s. Jaeger Le Caultre and he has informed that the above said JLC appears to be genuine one, however, has to be verified and confirmed with the principals of M/s. Jaeger Le Coultre. Thereupon, the two watches were resealed and handed to the Airport Warehouse. In the letter dated 14.8.2008, he has informed the Joint Commissioner of Customs, Chennai that the import price of Jaeger Le-Coultre – Coultre wrist watch was USD 91,746.72. Accordingly, the value of the said watch was taken as Rs.39,64,458/- (CIF). The value of Omega Constellation watch was fixed at Rs.220/- (CIF). On 25.9.2008, the sealed khaki cloth pouch containing one Swiss made Jaeger Le-Coultre-Coultre Wrist watch and one Omega Constellation Wrist watch was opened by the Intelligence Officer of Air Customs in the presence of independent witnesses and it was found that there was not only non-declaration of the watches but also mis-declaration of the total value of goods brought by him in the Customs Declaration card for the purpose of evading customs duty. Both the watches were seized under a cover of mahazar and https://hcservices.ecourts.gov.in/hcservices/ they were found to be liable for confiscation under the Customs Act. Accordingly, statement of the detenu was recorded and both the watches were seized under a cover of mahazar and he was also arrest as per the provisions of the Customs Act and was also produced before the Court. He moved bail application on 26.9.2008 and conditional bail was ordered and thereafter, he made a representation on 1.10.2008 and the same was replied with negative contentions by the department and thereafter, recommendation was made by the Customs Authorities and the same was placed before the State Government. The State Government, after being satisfied that it is a fit case where an order of detention has got to be made in order to prevent him from indulging in such activities in future, passed the order of detention. All the materials were placed before the Advisory Board and on scrutiny it was affirmed by the Board. Under such circumstances, this petition has arisen before this Court challenging the same. 4. Advancing the arguments on behalf of the petitioner, learned senior counsel raised the following points. (a) When the watches were actually seized on 23.7.2008 immediately on the same day, they were valued by M/s. P ORR & Sons (P) Ltd., a reputed watch company in Chennai and the first watch was valued at Rs.1,40,000/- and the second watch was found to be a duplicate one and the same was valued at Rs.500/-. While the fact remains so, thereafter the valuation shown as Rs.39,63,458/- were actually got from Thiru. Gurinder Singh of M/s. JLC Boutique, Oberoi Hotel, New Delhi, through communication. At this juncture, it is pertinent to point out that according to the learned senior counsel, the valuation of both the watches made by M/s.P.ORR & Sons(P) Ltd. as could be seen from the mahazar as Rs.1,40,000/- and Rs.500/- respectively, should have been brought to the notice of the detaining authority. The grounds of detention does not reflect this value of Rs.1,40,000/- given by M/s. P.ORR & Sons (P) Ltd. but it would reflect only the value of Rs.39,53,458/- , i.e., the valuation made at Delhi. There is vide difference between the two valuations which should have been brought to the notice of the detaining authority and the discrepancies in the valuation of the watches ought to have been clarified by the detaining authority as to how it happened by the sponsoring authority but failed to do so. Either the sponsoring authority should have clarified or on scrutiny, the detaining authority should have called for clarification but they have not done so. Under such circumstances, it would make the order defective. (b) The learned counsel would further add, it is not in controversy that the show cause notice dated 19.12.2008 was given to him after passing of the order and a detailed reply by the detenu was given on 6.1.2009 through the counsel denying the allegation therein but the same was not placed before the Advisory Board. When we look https://hcservices.ecourts.gov.in/hcservices/ into the counter filed by the State, it could be seen that since the show cause and the reply followed on 6.1.2009 were all made subsequent to the passing of the detention order and it could not have any relevance. They are not the necessary documents which could be placed before the Advisory Board. This contention putforth by the State has got to be discountenanced. In support of the contention, the learned senior counsel for the petitioner relied on the decision of the Division Bench of this Court reported in 2000 (III) CTC 97 (Rajeswari v. Joint Secretary to Government) and pointing to paragraph 23 of the said decision would submit that in a case like this when show cause notice is given and when it is followed by a reply, though those documents come into existence subsequent to the passing of the detention order, they are vital and relevant documents and failure on the part of the detaining authority to place the same before the Advisory Board, would make the order of detention illegal. (c) Thirdly, the learned counsel would further add, it is true that the department relied on the statement alleged to have been given by the detenu but there was a letter of retraction given on 11.11.2008 to the Sponsoring authority. The detaining authority passed the order on 18.11.2008. When there was a letter of retraction containing vital materials, the sponsoring authority is duty bound to place the same before the detaining authority. The detaining authority has to scrutinise the same before passing the order. In the counter affidavit it is averred that the letter of retraction was received subsequent to the passing of order. But this statement is not correct since the acknowledgement received by the authorities shows that it was received on 12.11.2008 itself. If the letter of retraction was received on 12.11.2008, it would clearly mean that it was before passing of the order of detention dated 18.11.2008. Under such circumstances, it should have been placed before the authority but not done so. For this propose, the learned counsel relied on the decision of the Apex Court reported in 1999 SCC (Crl.) 1469 (Ahamed Nassar v. State of Tamilnadu). On these grounds, the order of detention has to be declared as illegal and it has got to be set aside. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that the order of detention dated 18.11.2008 came to be passed under the facts and circumstances narrated above. The gist of the case of the department which was placed before the sponsoring authority was that the detenu was found in possession of two watches described as Swiss made Jaeger Le- Coultre-Coultre Wrist Watch and one Omega Constellations Wrist watch. Both these watches, on suspicion, were kept in custody of the Customs Warehouse under sealed cover and thereafter, they were taken for valuation. They were actually valued by Thiru.Gurinder Sing of https://hcservices.ecourts.gov.in/hcservices/ M/s. JLC Boutique, Oberoi Hotel, New Delhi and it was valued at Rs.39,63,458/- for the first watch and for the second watch, it was valued at Rs.220/-. The detenu has given mis-declaration of the total value of the goods in the customs declaration card and has committed smuggling activities. He was arrested under the provisions of Customs Act and was produced before the Court and he was also granted conditional bail. Under such circumstances, the sponsoring authority placed before the detaining authority that he has indulged in smuggling activities and in order to prevent him from indulging in such activities in future the order of detention have got to be made and after recording its satisfaction that it was a fit case where the provisions of the enactment of COFEPOSA Act was to be invoked in order to prevent him from indulging in smuggling activities, the State Government has made the order of detention under the provisions of COFEPOSA Act. Thus, this petition has arisen before this Court. 7. The entire materials are scrutinised. The first and foremost point which was brought to the notice of the Court by the learned Senior counsel is that there is discrepancy in the value of the watches which was actually found and it is also available under the materials and duty was cast upon the detaining authority to call for clarification in this regard. It has to be pointed out that both the watches were actually seized and kept under a sealed cover with the department on 23.7.2008. From the mahazar at page 1 of the booklet, it could be seen that the watches were valued at M/s. PORR & Sons, Madras, a reputed watch company and the value of the first watch was given at Rs.1,40,000/- and the second one which was found to be duplicate, was valued at Rs.500/- but subsequently, for the second time both the watches were sent to Thiru.Gurinder Sing, the Managing Director of M/s. JLC Boutique, Obero Hotel , New Delhi and he has given a letter as found in page 85 of the booklet. The 3rd paragraph of said letter dated 25.9.2008 in page 85 of the booklet reads as follows, "The manufacturer confirms the time piece visualized by myself at your office (# 32/200 Minute Repeater Platinum) to have been sold now for over a period of two years and are unable to trace its whereabouts, thus estimate that perhaps the same piece was sold and resold during this period." 8. From the reading of this part of the letter, it would indicate that the valuation of the watch is found as Rs.39,63,458/- and it was actually confirmed by the manufacturer but the name of the manufacturer was not found therein and how the value was arrived at was not mentioned. But what was the value given is Rs.39,63,458/- and the same was also relied on. Paragraph 5 of the said letter reads as follows, "The retail for this time piece in India INR 90,31,308/- and also if their boutique operators do import the same, it would be invoiced at a price of USD 91,746.72." So far as this value of Rs.39,63,458/- is concerned, how it was arrived at was not mentioned therein, while the mahazar would indicate that "..the above said Watch was retrieved from the Airport Warehouse, in the presence of https://hcservices.ecourts.gov.in/hcservices/ the passenger on 23.07.2008, for the purpose of valuation in the market, that the second mentioned Watch was identified to be duplicate and approximately valued at Rs.500/- and the first mentioned watch was identified as Original and approximately valued at Rs.1,40,000/- by M/s. P.ORR & Sons (P) Ltd., Chennai." 9. From the very reading of the mahazar and the letter at page 1 and page 85, the discrepancies in the price was found to be high. When such discrepancies were found, either the sponsoring authority should have explained how this discrepancy occurred or on scrutiny, the detaining authority should have called for explanation. It is needless to say that it would certainly affect the detention order. 10. So far as the second contention that there was a show cause notice which was followed by a reply were not actually placed before the Advisory Board is concerned, it is not disputed by the State that actually the show cause was issued and following the same, a detailed reply was given by the detenu on 6.1.2009 but they were not actually placed before the Advisory Board. Paragraph 3 of the counter filed by the State reads as follows: " The show cause notice was issued on 19.12.2008 i.e, after the issue of the detaining order and hence not relied upon for passing detention order. The Show Cause Notice is part and parcel of the adjudication proceedings which is quasi-judicial in nature and it issued without prejudice to the action under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974). the proposals in the show Cause Notice no where deviates from the sponsoring authority's stand before the detaining authority that the watches are liable for confiscation and do not interfere with the detention order. During the State Advisory Board proceedings, it was open to the detenu to place on record any material in his support including Show Cause Notice dated 19.12.2008 and his reply dated 06.01.2009. The fact that the Honourable State Advisory Board also did not call for any further information from the Government as provided under clause © of Section 8 of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 19074 shows that the Honourable State Advisory Board was convinced of the actions against the detenu. Therefore, it may be seen that the contentions of the petitioner are frivolous in nature. Hence, the allegations are denied." 11. A reading of the above paragraph of the counter would clearly indicate that according to the State, a show cause notice was sent and a reply was received and they need not be placed before the Advisory Board in fact they were actually not placed also. As far as https://hcservices.ecourts.gov.in/hcservices/ the contention that whether it is necessary to place the show cause notice and the reply sent by the detenu or not, this Court had occasion to consider this fact in the judgement reported in 2000 (III) CTC 97 (Rajeswari v. Joint Secretary to Government) in HCP. No. 1444 of 1999 wherein Their Lordships have held as follows: "In all these cases, the principle is accepted that even inspite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining Authority is under a duty to put those documents before the advisory Board. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J. 637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector & District, Magistrate, Tiruhklvkli, 1984 Crl.L.J. 68. The two judgments of the Division Bench of this court are binding on us and therefore, it would have to be held that in not placing these relevant and material documents before the Advisory Board there is a breach of duty on the part of the detaining authority and the subsequent detention has thus become illegal." This court is unable to see any reason to deviate from this decision taken by this Court following the earlier judgment. It is a case where those documents have been considered to be relevant and material. Though the documents came into existence subsequent to the passing of the order of detention, so long as it is considered as relevant and material, the authorities are duty bound to place those documents before the Advisory Board but they have not done so. Under such circumstances, the detention order has got to be declared illegal. 12. Lastly, it is not in controversy that there was a retraction letter made on 11.11.2008 and this has not been placed before the Detaining Authority and a reply to that, as could be seen from the counter is that, the order of detention was passed on 18.11.2008 but the retraction letter has been received subsequently and hence, it could not be placed before the Detaining authority, cannot be accepted in view of the acknowledgement card now placed before the Court by the petitioner side. A perusal of the acknowledgment card would reveal that it was actually received by the Authority on 12.11.2008 itself whereas the order of detention came to be passed on 18.11.2008. Further, there was delay of four months in passing the detention order. When the sponsoring authority placed its material, wherever delay is caused, the Court can go into the question as to https://hcservices.ecourts.gov.in/hcservices/ whether the delay was due to administrative reason and the delay caused was reasonable or unreasonable. . There is no nexus or proximity between the alleged seizure and the date of passing of the detention order. The Court has to comment that unreasonable delay, among other reasons would also suffice to set aside the order. For all the reasons stated above, the Court has to necessarily set aside the order of detention as illegal. 13. Accordingly, this habeas corpus petition is allowed setting aside the order of the first respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009. 2. The Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), Central Economic Intelligence Bureau, Janpath Bhavan, Vi Floor, 'B'Wing, Janpath, New Delhi – 110 001. 3.The Superintendent of Central Prison, Central Prison, Puzhal, Chennai – 600 066. 4.The Joint Secretary to Government, Public [Law and Order] Fort St.George, Chennai. 5.The Public Prosecutor, High Court, Madras. 1 cc To Mr.M.M.K.Alifudeen, Advocate, SR.32065 HCP.No.2088 of 2008 VSV(CO) SRA(29/7/2009) https://hcservices.ecourts.gov.in/hcservices/