IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2008 CORAM: THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE S.PALANIVELU H.C.P. No.1805 of 2007 R.Chandra Mohan .. Petitioner vs. 1. The State of Tamilnadu rep. By the Secretary to the Government, Public (SC) Dept., Fort St. George, Chennai. 2. The Union of India, rep. By its Secretary to Govt., Ministry of Finance, Department of Revenue, New Delhi. 3. The Superintendent of Central Prison, Central Prison, Puzhal Chennai. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas calling for the records relating to the impugned detention order in G.O.No.SR.I/1038- 6/2007 dated 17.12.2007 passed by the first respondent and quash the same and direct the respondents to produce the body of the person of the detenu Radha Mohan Nandha Gopal, son of Radha Mohan, a COFEPOSA detenu now detained in Central Prison, Puzhal, Chennai, before this Court and set him at liberty. ----- For petitioner : Mr.A.Ganesh For respondents: Mr.M.Babumuthumeeran, Additional Public Prosecutor for R.1 and R.3 Mr.P.Kumaresan, ACGSC – R2. ----- https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was delivered by D. MURUGESAN, J.) The petitioner has approached this Court on behalf of his brother by name Radha Mohan Nandha Gopal, son of Radha Mohan, the detenu, questioning the detention order dated 17.12.2007 passed by the the Secretary to the Government, Public (SC) Department, in letter No.SR.I/1038-6/2007 under Section 3(1)(i) of the Conservation Of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'COFEPOSA' Act). 2. The detention order came to be passed on the following grounds :- On 30.10.2007, the detenu, a holder of Indian Passport, arrived from Bangkok with two checked-in baggages, viz., one black colour Polo Classic zipper suitcase and one pink colour zipper bag without baggage tag. He was intercepted by the Officers of the Customs Department while he was passing through the Green Channel and on a reasonable suspicion that the detenu might be carrying high valued goods in commercial quantity, he was questioned by the officials of the Customs Department. The detenu had declared that the baggage contained only personal effects valued at Rs.5,000/= and produced the Customs Declaration Card duly signed by him. Not satisfied with the declaration, the Customs Officer checked the baggage. He was also questioned about the baggage tag which was missing on the printed pink colour zipper bag, for which the detenu had replied that the baggage tag was missing at the time of collecting the same from the conveyor belt itself. On examination of the above baggage, it was found to contain 23 numbers of 'WAI WAI' instant noodle packets and underneath those packets, there were white and coloured stones as well as studded jewellery covered by polythene covers. As the stones were suspected to be precious and semi-precious in nature, they were examined by the Appraising Officer, who certified the white and coloured stones to be assorted cut and polished precious stones viz., Diamond and Ruby, semi-precious Yellow Sapphire and synthetic white stones and the studded jewellery were certified as white gold studded jewellery and the value of the goods was assessed at Rs.30,66,110/=. Therefore, the detenu had given a statement confessing his smuggling activity, which ultimately lead to the detaining authority passing the detention order. 3. Mr. A. Ganesh, learned counsel appearing for the petitioner, in challenge to the detention order, would submit that the Customs officials claimed that the detenu had mad a confession statement on 30.10.2007; but the detenu had subsequently retracted https://hcservices.ecourts.gov.in/hcservices/ the said confession statement by his letters dated 12.11.2007 and 20.11.2007 sent to the sponsoring authority, which were acknowledged by him on 14.11.2007 and 21.11.2007 respectively. These letters being the relevant material ought to have been placed before the detaining authority, and the failure on the part of the sponsoring authority to place the above two material documents before the detaining authority would vitiate the order of detention since the detaining authority was not provided with all the materials to form his satisfaction for passing the order of detention. Secondly, the learned counsel would submit that in terms of Section 137(3) of the Customs Act, the detenu had forwarded an application dated 16.11.2007 to the Chief Commissioner of Customs, which in turn, was forwarded to the Commissioner of Customs, viz., the sponsoring authority, who on consideration of the said application, had sent a report dated 4.12.2007 to the Chief Commissioner of Customs. In the said report, the Commissioner of Customs had clarified, inter alia, that the contention of the detenue viz., the offence under Section 135(1)(a)(ii) of the Customs Act 1962 is not attracted because he did not misdeclare the value of the goods or evade the customs duty, is not correct. As he had chosen the Green Channel to evade customs duty by declaring only Rs.5,000/= in the customs declaration card and concealed the stones below the noodles packets with a clear intention to smuggle the same into India without payment of duty. The Commissioner has also referred in the said report that the detenu had admitted in his statement that it was an offence which has been further corroborated in the Mahazar drawn in the presence of the detenu, as well as two independent witnesses. With the above report, he has recommended that compounding of offence has to be considered in this case u/s.132 & 135(1)(a) of the Customs Act, 1962 and not u/s.132 alone. The said report dated 4.12.2007 had not been placed before the detaining authority. The learned counsel would submit that the said report would have a bearing in deciding as to whether preventive detention is necessary or not in the facts of the case. According to the learned counsel, had the report been placed before the detaining authority, the satisfaction of the detaining authority would have been different in that context and non- placement of the said report would certainly vitiate the order of detention. 4. Mr. M. Babumuthumeeran, learned Additional Public Prosecutor, would on the other hand, submit that the retraction letters dated 12.11.2007 and 20.11.2007 said to have been addressed to the sponsoring authority were not received by the sponsoring authority. Therefore, no question would arise for the sponsoring authority to place those letters before the detaining authority. Insofar as the second submission is concerned, again the report dated 4.12.2007 is not a vital document, as ultimately, https://hcservices.ecourts.gov.in/hcservices/ the Commissioner of Customs had only recommended for compounding of the offence and it is for the detaining authority to form his satisfaction and even in case of compounding, to pass an order of detention taking into account the other materials for consideration. 5. We have carefully considered the above rival contentions made on either side. 6. Insofar as the non-placement of the letters retracting the earlier confession statement dated 12.11.2007 and 20.11.2007, learned counsel for the petitioner had produced the original copies of those letters and from a perusal of the same, it is clear that the letter dated 12.11.2007 had been acknowledged by the Commissioner of Customs (Airport) on 14.11.2007 and similarly, the letter dated 20.11.2007 has been acknowledged by the Commissioner of Customs (Airport) on 21.11.2007. In view of the above, it cannot be now contended by the respondents that those letters retracting the confession statement were not acknowledged by the sponsoring authority. 7. This leads to the next question as to whether non- placement of the above two letters retracting the earlier confession would have any bearing on the mind of the detaining authority in forming an opinion to pass an order of detention. When the detenu arrived at the International Airport on 30.10.2007, he had declared the value of the goods only at Rs.5,000/=. Later, on a search and the consequential examination of the two baggages, it came to be seen that the petitioner had allegedly concealed the precious stones in question. It is the case of the sponsoring authority that thereafter, on the same day, the detenu had confessed of having smuggled the said precious stones, etc. and the said statement was treated to be a confession statement. However, by the subsequent letters dated 12.11.2007 and 20.11.2007, which were acknowledged on 14.11.2007 and 21.11.2007 respectively, the detenu had retracted the earlier confession. The letters retracting the confession are vital documents. In the event that such statements had been placed before the detaining authority, they would have weighed with the mind of the detaining authority in order to arrive at a satisfaction as to whether the detention order should be passed or not. Sometimes, a different consideration may also occur in the mind of the detaining authority in not proceeding against the detenu under the provisions of the COFEPOSA Act. 8. In this context, a Division Bench judgment of this Court in H.C.P. No.1123 of 2002 is referable. In that judgment, the Division Bench had accepted the argument that the letter retracting the earlier confession is a very relevant document and https://hcservices.ecourts.gov.in/hcservices/ would have affected the psyche of the detaining authority and non- placement of such letter would vitiate the order of detention. We have no other reason to take a view different from the one which was taken in the above order. 9. Insofar as the non-placement of the report of the sponsoring authority dated 4.12.2007 is concerned, of course, by the said report, the letters of retraction of earlier confession were neither considered nor rejected. Nevertheless, the application of the detenu for compounding the offences made under Rule 4(3) of the Customs (Compounding of Offences) Rules, 2005 on 14.11.2007 to the compounding authority was considered and in fact, the detaining authority had reported that the compounding of offences would be considered in the case under Section 132 and 135 (1)(a) of the Customs Act, 1962 and not u/s.132 alone. In our considered view, the said report attaches some materials in favour of the detenu and in the said circumstances, the report assumes important. Again, had the said report been placed before the detaining authority, different considerations could have occurred in the mind of the detaining authority to arrive at a subjective satisfaction or opinion as to whether the detenu should be clamped with the order of detention under the provisions of the COFEPOSA Act. The said report dated 4.12.2007 is a material document and therefore, non-consideration of the said document would also vitiate the order of detention. As both the letters retracting the confession and the report of the Commissioner of Customs were much prior to the order of detention dated 17.12.2007 and since these documents were in the custody of the sponsoring authority even before the detention order came to be passed, the sponsoring authority ought not to have withheld these documents from the consideration of the detaining authority. Therefore, the failure on the part of the sponsoring authority to place the above documents will certainly affect the consideration of the detaining authority to pass the detention order. 10. In our considered view of both the above grounds, the petitioner must succeed and accordingly, the habeas corpus petition is allowed. The impugned order of detention passed in G.O.No.SR.I/1038-6/2007 dated 17.12.2007 is quashed. The detenu is set at liberty forthwith, unless he is required in connection with any other case or cause. gs. Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to the Government, Public (SC) Dept., Fort St. George, Chennai. 2. The Secretary to Govt., Ministry of Finance, Department of Revenue, New Delhi. 3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai. 4. The Public Prosecutor, High Court, Madras. 5. The Commissioner of Customs (Airport), Chennai. 6. The Chief Commissioner of Customs (Airport), Chennai. 7. The Joint Secretary to Government of Tamilnadu, Public (Law and Order) Department, Fort St. George, Chennai-9. sgd (co) dv/6.8. H.C.P. No.1805 of 2007 https://hcservices.ecourts.gov.in/hcservices/