IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.7.2010 C O R A M THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR HABEAS CORPUS PETITION NO. 1853 OF 2009 T.P.Jothi Prakash @ R.Prabhu .. Petitioner -Vs- 1. State of Tamilnadu, Rep. by the Secretary to Government, Public (SC) Department, Fort St. George, Chennai 600 009. 2. 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. 3. The Superintendent of Central Prison Central Prison, Puzhal, Chennai. .. Respondents Prayer: Petition filed to issue a Writ of Habeas Corpus calling for records relating to the detention order in Letter No.SR 1/461-09- 2009, Public (SC) Dept., dated 23.9.2009, passed by R1, quashing the same and directing the respondents to produce the body of the person of the detnu, T.P.Jothi Prakash @ R.Prabhu, now detained in the Central Prison, Chennai as COFEPOSA detenu, before this Hon'ble Court and set him at liberty. For petitioner : Mr. M.M.K.Alifudeen For R1 & R3 : Mr.M.Babu Muthu Meeran Additional Public Prosecutor For R2 : Mr. K.Ravi Anantha Padmanabhan Standing Counsel for Customs & Central Excise. https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by C.NAGAPPAN, J.) The detenu T.P.Jothi Prakash @ R.Prabhu has challenged the order of detention in G.O.No.SR.1/461-9/2009 Public (SC) Department, dated 23.9.2009, 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. 2. The facts which led to detention, in brief, are as follows: T.P.Jothi Prakash @ R.Prabhu is the proprietor of M/s. Deepak Enterprises at No.24, Avoor Muthiah Street, New Washermenpet, Chennai and he filed export documents in respect of two shipping bills pertaining to four containers, which were declared to contain 2000 bags of 50 kgs. each of uncrushed non-iodised industrial salt for export to Malaysia. On examination of the four containers on 12.5.2008, two containers were found fully stuffed with wooden logs believed to be red sanders and the remaining two containers were found stuffed with light yellow coloured HDPE bags containing salt. On verification of the exporter's address, it was found that no entity by that name was found to be functioning and no person by name T.P.Jothi Prakash @ R.Prabhu was residing in the said addess. On 13.5.2008, on enquiry, it was found out that T.P.Jothi Prakash @ R.Prabhu was residing in the address above mentioned for one year and shifted to new premises at Old No.22/New No.25 in the same street. On 13.5.2008, 1160 pieces of red sanders wooden logs weighing 28.110 MTs found in two containers were seized under mahazar dated 13.5.2008. T.P.Jothi Prakash @ R.Prabhu appeared before the DRI Officers at Tuticorin on 7.7.2009 and gave voluntary confession statement and the same was recorded. T.P.Jothi Prakash @ R.Prabhu was arrested on the same day and remanded to judicial custody and was released on bail on 22.7.2009 with condition. T.P.Jothi Prakash @ R.Prabhu sent representation dated 31.7.2009 to DRI, Tuticorin, and a Reply dated 4.8.2009 refuting the averments and allegations was sent by DRI, Chennai. His wife Tmt. Packialakshmi sent representation dated 24.7.2009 and the same was considered and rejected in the reply sent to her on 23.9.2009. The detention order came to be clamped on him on 23.9.2009 with a view to prevent him from abetting the smuggling of goods in future and that is being challenged in the Habeas Corpus Petition. https://hcservices.ecourts.gov.in/hcservices/ 3. The order of detention is challenged on various grounds. The main submission of Mr. M.M.K.Alifudeen, learned counsel appearing for the petitioner is that the letter dated 10.8.2009, sent by the detenu to the Sponsoring Authority, namely, the Directorate of Revenue Intelligence, which is a relevant and vital material, was not placed before the detaining authority and non-placement of the same vitiates the Order of detention. In support of his contention, the learned counsel relies on the decision of the Apex Court in AHAMED NASSAR v.. STATE OF TAMIL NADU AND OTHERS [1999 SCC (Cri) 1469]. 4. Per contra, Mr. Babu Muthu Meeran, learned Additional Public Prosecutor, submits that the letter dated 10.8.2009 is nothing but a second pre-detention representation sent by the detenu and the Sponsoring Authority has rejected his earlier representation and also the representation sent by his wife on his behalf and both the representations have been referred to in the grounds of detention by the detaining authority and non-placement of the said letter is of no consequence and does not affect the order of detention. 5. It is not in dispute that the detenue sent letter dated 10.8.2009 to the Directorate of Revenue Intelligence and in fact, the Directorate of Revenue Intelligence has acknowledged the same and sent Summon dated 15.9.2009 directing the detenu to appear in their Office on 29.9.2009 for enquiry. In the said letter dated 10.8.2009 in para 1 the detenu has stated that his Tarus lorry was seized by the Officers and at the time of seizure, the lorry was found to be empty and did not carry any contraband on it. In para 2 of the said letter, the detenu has further stated that his lorry was used only for carrying any declared cargo and not any contraband and he was renting out the vehicle for carrying legal export materials to the exporters and importers and there is no attempt of any illegal export as alleged by the sponsoring authority. Based on the said statement, in para 3 he has sought for return of his lorry as interim release under the provisions of the Customs Act. 6. The Supreme Court in the decision in AHMED NASSAR's case adverting to non-placement of two material documents (1) one letter dated 19.4.1999 sent by the Advocate of the detenu to the sponsoring authority and (2) the other letter dated 23.4.1999 sent by the detenu to the detaining authority, both sent prior to clamping of the detention order, held that they were relevant and likely to affect the decision whether or not to pass an order of detention and non- placement of the said letters before the detaining authority has vitiated the order of detention. In fact, the question in the present case is not any consideration of the representation of the detenu dated 10.8.2009 expeditiously by the detaining authority prior to his detention order but non-placement of it before the detaining authority for its consideration. The dictum of Their Lordships in https://hcservices.ecourts.gov.in/hcservices/ the above decision is stated in paragraphs 20, 27 & 29 of the judgment and for better appreciation, they are extracted below - " 20. So far as the stand of the respondent with reference to the advocate's letter dated 19- 4-1999 is concerned it cannot be held to be a justifiable stand. These technical objections must be shunned where a detenu is being dealt with under the preventive detention law. A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his representation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision. 21. ..... 27. This shows there was really non- application of mind. It is not in dispute that the relevant date of the issue of formal detention order was 28-4-1999 though it was signed on 26-4- 1999. Thus, there should be consideration of all relevant materials in case such materials were within the reach of the detaining authority till a formal detention order was issued. 28. ........... 29. .......... In the present case, we find the letter of the detenu dated 23-4-1999 was received on 26-4-1999, i.e., before issuance of formal detention order dated 28-4-1999. It was incumbent for the Secretary concerned to have placed it before the detaining authority. So we conclude, non-placement of those two letters which were relevant, vitiates the impugned detention order. " In the present case, the detention order was passed on 23.9.2009. The detenu sent a letter on 10.8.2009 and the same was acknowledged by the sponsoring authority by issuing summon dated 15.9.2009 directing the detenu to appear for enquiry to consider the request made by him in the said letter. All these happened prior to clamping of the detention order. It is admitted by the first respondent, namely, the detaining authority, that neither the letter dated 10.8.2009 nor the summon dated 15.9.2009 issued to the detenu was placed before it by the sponsoring authority. https://hcservices.ecourts.gov.in/hcservices/ 7. The contention of the learned Additional Public Prosecutor is that the letter dated 10.8.2009 is not a relevant material and non-placement of it is of no consequence since the letter is nothing but a second representation sent by the detenu. In support of his submission, he relies on two decisions of the Supreme Court in - (i) ABDUL RAZAK DAWOOD DHANANI v.. UNION OF INDIA AND OTHERS [2004 SCC (Cri) 1177] and (ii) D.ANURADHA v.. JOINT SECRETARY AND ANOTHER [(2006) 2 SCC (Cri) 432]. 8. In ABDUL RAZAK's case (cited supra) there were two post detention representations, which were almost identical, and one was considered and rejected and the disposal of it would be a justification for non-consideration of the second representation. In the present case, the question is not of consideration of the second representation of the detenu but of non-placement of the relevant material in the form of a letter of the detenu received prior to clamping of the detention order, by the sponsoring authority. Moreover, in the facts of the said decision, two representations were identical in material except the difference in language and the manner of presentation and in those circumstances, Their Lordships have concluded that there was no obligation to consider the second representation which did not contain any new or fesh grounds justifying a fresh consideration. In the present case, it cannot be said that the letter dated 10.8.2009 sent by the detenu to the sponsoring authority is identical to his earlier representation which came to be rejected. Hence, the decision in ABDUL RAZAK's case (cited supra) is not helpful to the respondents. 9. In the decision in ANURADHA's case (stated above) a letter written by a Lawyer in Singapore to the effect that the detenu had taken legal assistance and he was not obliged to reveal the materials as they were confidential communications, was not placed before the detaining authority and the same was projected as vitiating the order of detention. In those circumstances, the Supreme Court held that the letter of N.C.Ramesh was of no consequence and irrelevant and non-placement of the same would not vitiate the order of detention. While adverting to the issue, Their Lordships of the Apex Court have referred to and extracted the dictum laid down in AHAMED NASSAR's case (stated above) and has reiterated the same. This decision also is not in any way helpful to the first respondent. On the other hand, the dictum of AHMED NASSER's case squarely applies to the facts of the present case. 10. As already seen, in the letter dated 10.8.2009 the stand of the detenu was that the lorry was empty when it was seized and did not carry any contraband and he has also prayed for return of https://hcservices.ecourts.gov.in/hcservices/ the vehicle. The said request was neither rejected nor considered till the clamping of the order of detention. On the other hand, the detenu was directed to appear for an enquiry at a later date. In such circumstances, the said letter and the summon issued to the detenu are relevant materials and cannot be termed as totally irrelevant and of no consequence and the non-placement of the same vitiates the impugned detention order. On this ground alone, the detention order is liable to be set aside. 11. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention dated 23.9.2009 is set aside and the detenu Thiru. T.P.Jothi Prakash @ R.Prabhu is ordered to be set at liberty forthwith, unless his continued custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pb To 1. The Secretary to Government Public (SC) Department Fort St. George, Chennai 600 009. 2. 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. 3. The Superintendent of Central Prison Central Prison, Puzhal, Chennai. 4. The Public Prosecutor, High Court, Madras. 5. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 1 cc To Mr.M.K.Alifudeen, Advocate, SR.53704. HCP No.1853 of 2009 NG(CO) RVL 30.07.2010 https://hcservices.ecourts.gov.in/hcservices/