IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.1779 of 2007 and MP No.1 of 2008 K.Shanmugam .. 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 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. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records relating to the detention order in G.O.No.SR.I/884-9/2007, Public (SC) Department, dated 5.11.2007 passed by the first respondent, quash the same and direct the respondents to produce the body of the person of the detenu, K.Shanmugam, son of Krishnappa Achari now detained in the Central Prison, Chennai, as COFEPOSA detenu before this Court and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.M.M.K.Alifuddin For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor for RR1 & 3 Mr.Vikram Ramakrishnan ACGSC for R2 ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the first respondent dated 5.11.2007, whereby an order of detention was passed against the petitioner herein terming him as the COFEPOSA detenu. 2.The affidavit in support of the petition is perused. The Court heard the learned Counsel for the petitioner, learned Additional Public Prosecutor for the respondents 1 and 3 and also the learned Additional Central Government Standing Counsel for the second respondent. 3.The short facts which, according to the detaining authority, led him to pass the order of detention, are as follows: The DRI Officers of Chennai Unit intercepted a container at Chennai Harbour meant for export to Malaysia with a cargo of slate stones, and search of the container resulted in recovery of red sander wood log, an item prohibited for export. On further investigation, the petitioner was intercepted, and he gave a statement that he did the preparing work for export of slate stones on the instructions by one Chitty Raja, and he had also knowledge that the red sander wooden logs would be exported in the guise of slate stones. Both the said Chitty Raja and the petitioner were arrested. Following the same, documents were served upon them. They made representations, and orders have been passed detaining them under the COFEPOSA Act. Subsequently, the order of detention passed against the said Chitty Raja was actually revoked by the Advisory Board; but, the detention of the petitioner who was detained under Sec.3(1)(ii) of the Act for abetting the main man, was confirmed, which is the subject matter of challenge before this Court. 4.At the time when the matter is taken up for enquiry, the learned Counsel for the petitioner made the following submissions: (i) The container was searched, and it was found to contain those materials according to the department on 13.8.2007. The petitioner was arrested on 4.10.2007. The detention order came to be passed on 5.11.2007. A representation was made on 29.11.2007 to the Central Government asking for the translated https://hcservices.ecourts.gov.in/hcservices/ copies of certain documents whereby a request was made; but, they were not supplied. 5.The learned Counsel would further add that a part of the documents were actually supplied to him at about 11.40 a.m. On 18.12.2007; that the matter was taken up by the Advisory Board on 19.12.2007, at about 3.00 p.m., and thus, no sufficient time was given to him for making a representation effective because there was paucity of time; that apart from that, voluminous documents were actually served upon him by 5.40 p.m.; that those documents were not requested by the petitioner either, or those documents were actually not given with any covering letter indicating the purpose for which they were actually served upon him; but, it was not done; that only those documents were served and that too at the fag end of the day, and when the Advisory Board was to have its enquiry on the next day; that he could not even understand the purpose for which it was served; that he was under confusion; that he could not make effective representation, and thus, the valuable right available to him to make representation was actually violated and rather, he was prevented from making effective representation. 6.The learned Counsel would further submit that in the instant case, the order was passed not only against the petitioner herein, but also against one Chitty Raja on the very day i.e., 5.11.2007; that according to the department, the petitioner has only abetted the other, and the said Chitty Raja was the main culprit in the case; that a booklet containing about 400 pages, was available in the hands of the detaining authority; that the said documents, as could be seen from the materials available, were placed before the detaining authority by the sponsoring authority on 5.11.2007 namely the date of the order; that when these two orders came to be passed, the detaining authority should have applied its mind and arrived at the subjective satisfaction which he could not have done in the case of the petitioner for the simple reason that there was a booklet containing 400 pages; that the same was placed before the detaining authority only on 5.11.2007; that these documents should have been scrutinized not at a time, but in piecemeal; that it would be quite clear that he should not have applied his mind and arrived at the subjective satisfaction, and under the circumstances, the order has got to be set aside. 7.Added further, the learned Counsel that when the matter was placed before the Advisory Board, as far as the other detenu was concerned, the decision taken by the detaining authority, was not approved, but set aside; that as far as this petitioner was concerned, it was confirmed; that while the Advisory Board has taken its view that it is a fit case where the decision taken by the detaining authority in respect of the other detenu, was to be set aside, all those reasons were equally applicable to the petitioner herein also who, according to the department, has abetted the crime; that further, in the instant case, at the time when the Advisory Board had considered the case of the other https://hcservices.ecourts.gov.in/hcservices/ detenu, the decision taken by the detaining authority in respect of this petitioner also, should have been placed, but not done at all; and that had it been placed, the Advisory Board would have considered that the reasons what were available for the Advisory Board to set it aside in respect of that detenu, were equally available to the petitioner herein also, but not done. 8.It is further added by the learned Counsel that in the instant case, if the Advisory Board has granted the approval in respect of the petitioner's case, the said report should have also been placed before the State; that it is not necessary that in all the cases, even if the Advisory Board grants approval in respect of the order passed by the detaining authority, it should be accepted by the State; that the State can even revoke the same in exercise of its powers; that in the instant case, at the time when it was considered by the State, the order of revocation passed by the Advisory Board in respect of the other detenu, was not placed; and that under the circumstances, the order is infirm. 9.Added further the learned Counsel that the petitioner has problem in his vision; that during day hours his vision is blur, and during night hours he could not see at all; that this was also brought to the notice of the authority immediately; but, it was neither considered by the authority, nor medical opinion was canvassed; and that this would also vitiate the order. In short, the learned Counsel would conclude that for all the reasons stated above, the impugned order has got to be quashed. 10.The Court heard the learned Additional Public Prosecutor for the State and the learned Additional Central Government Standing Counsel on all the above contentions and paid its anxious consideration on the submissions made. 11.Concededly, an order came to be passed on 5.11.2007 under the provisions of COFEPOSA Act by the first respondent after recording the satisfaction that the petitioner has indulged in abetting the smuggling of goods. Subsequently, the order was also placed for approval before the Advisory Board, which also confirmed the same. Thereafter, the State has also affirmed the same. In such circumstances, this petition has arisen before this Court. 12.The first contention put forth by the learned Counsel for the petitioner is that actually the order came to be passed on 5.11.2007; that after the order was passed, a representation was made on 29.11.2007; that the matter was placed before the Advisory Board on 18.12.2007; that the first set of documents were given to him at about 11.40 a.m. on that day; that the approval was given at about 3.00 p.m. on 19.12.2007; and that as per the representation given by him, all the documents were served upon him at about 11.40 a.m. On 18.12.2007, and the matter https://hcservices.ecourts.gov.in/hcservices/ was taken up for approval only on 19.12.2007. It would be quite clear that he was given one day time. Now, the contention put forth by the learned Counsel for the petitioner that he could not make effective representation within a period of one day while voluminous documents were served upon him requires consideration. Though one day time was given to the petitioner, it would not be sufficient in the eye of law to go through the same, understand the things and then make representation, since the matter was actually taken up by the Advisory Board for consideration on the next day. Hence, it can be well stated that sufficient time was not afforded to him so as to enable him to make effective representation before the Advisory Board. 13.The next contention is that the other bunch of documents which were not actually requested by him, were served upon him at 5.40 p.m.; that those documents were served even without any covering letter indicating the purpose for which they were supplied; that he was under confusion; and that he could not make effective representation in respect of those documents. This Court is of the considered opinion that the decision of the Supreme Court reported in 1999 SUPREME COURT CASES (CRI) 299 (STATE OF T.N. V. SENTHIL KUMAR AND ANOTHER) has got application to the present facts of the case. In the case on hand, this Court is able to see two points in favour of the petitioner. Firstly, while the Advisory Board was to take up the matter for consideration on 19.12.2007, a bunch of documents which were not called for by the petitioner, were served upon him at about 5.40 p.m. On 18.12.2007, as could be seen from the booklet, and secondly, they were given without any covering letter at all. It would be quite clear that those documents were served upon him, without a covering letter indicating the purpose for which they were actually given and without mentioning that they would be placed before the Advisory Board and before the Government in connection with the confirmation of the detention. So long as the petitioner was not informed about the purpose for which those documents were served upon him and even without any indication that they would be placed before the Advisory Board or the Government later, it would be quite clear that the petitioner was kept under darkness. Thus, he could not make a proper representation. 14.As stated supra, in the instant case, the points are twofold. Firstly, all these documents were served at about 5.40 p.m. on the previous day when the Advisory Board was to take up the matter on the next day that was on 19.12.2007. Secondly, there was no covering letter indicating the purpose for which they were served on him. That apart, whether they would be placed before the Advisory Board or the Government later remained unknown to the petitioner. In such circumstances, it remains to be stated that not only the valuable right of the petitioner for making effective representation was taken away, but also the representation itself in that regard was actually defeated. https://hcservices.ecourts.gov.in/hcservices/ 15.As far as the next contention that the last document was given on 5.11.2007, and thus, the authority had no occasion to consider all the documents at a time when the booklet contained 409 pages, and that too, he should have considered in piecemeal is concerned, the same cannot be accepted for the simple reason that true it is, the last document was placed before the authority only on 5.11.2007; but, all other documents were actually placed on 29.10.2007 itself. Hence, that contention has got to be rejected, and accordingly, it is rejected. 16.The next contention put forth by the learned Counsel that the order of the Advisory Board denying the approval for the other detenu and setting aside the order of detention, was not placed before the Advisory Board when the matter was taken up by the Advisory Board for the approval of the detention of the petitioner, and if it was placed, it would have taken a proper decision in the instant matter cannot be accepted at all. A Division Bench of this Court had an occasion to consider such a situation and rendered a decision reported in (2006)2 MLJ (CRL.) 696 (MUTHULAKSHMI AND ANOTHER V. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COIMBATORE DISTRICT, AND ANOTHER), wherein this Court has actually followed the decision of the Apex Court reported in AIR 2003 SC 3562 (SAFIYA V. GOVERNMENT OF KERALA) in which, the Apex Court has held that the subjective satisfaction of the detaining authority cannot be said to have vitiated on the ground that the non-placing of the opinion of the Advisory Board rendered in case of another person (whose detention was revoked) amounted to non-placing of relevant and important document. In the case on hand, it is doubtful whether the order of the detaining authority denying approval in respect of the other detenu and revoking that order, was actually placed. But, the non-placing of the opinion framed by the Advisory Board in case of another person whose detention order was revoked, at the time when the matter was taken up for consideration would not in any way vitiate as done by the earlier Bench of this Court as referred to above. 17.The last contention urged by the learned Counsel for the petitioner, in the opinion of the Court, has got force. After the approval was made by the Advisory Board in this regard, the matter was placed before the State Government for its approval. As rightly pointed out by the learned Counsel, in every case it is not necessary that the State Government should confirm any order of detention even after it is being approved by the Advisory Board. The State Government has to exercise its powers independently and take into consideration all the materials available. In the instant case, admittedly, there were two detenus who, according to the department, were involved in the transaction. Both the orders were passed on 5.11.2007. As far as the other detenu was concerned, though the detention order was made by the authority, it was not approved by the Advisory Board, and it has been set aside for the reasons stated therein. When this particular order was placed before the State for approval, https://hcservices.ecourts.gov.in/hcservices/ the other order of detention which was subsequently not approved by the Advisory Board, could have also been placed before the State Government, and the State Government in exercise of its powers, should have considered the same also since both the detenus, according to the department, were involved in the same transaction. This is also a reason for setting aside the order in question. 18.The decision relied on by the learned Additional Public Prosecutor and reported in (2006)3 SCC (CRI) 311 (STATE OF T.N. AND ANOTHER V. ALAGAR), in the opinion of this Court, cannot be applied to the present facts of the case. 19.Out of the above contentions, the Court has agreed with the petitioner's case that sufficient opportunity of putting forth representation before the Advisory Board was not given; that also there was no covering letter along with the documents served upon him, making him to understand the reason and the purpose for which they were supplied to him; and that apart from that, non-approval of the detention order by the Advisory Board in respect of the other detenu who, according to the department, also participated in the transaction, was also not placed before the State Government. These grounds would suffice to quash the order. 20.Accordingly, this habeas corpus petition is allowed quashing the order of the first respondent. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Consequently, connected MP is closed. nsv/ Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To: 1.The Secretary to the Government Public (SC) Department Fort St. George, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/ 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. 4.The Public Prosecutor High Court, Madras. 1 cc to Mr.m.M.K.Alifuddin, Advocate, SR.32612 1 cc to Mr.Vikram Ramakrishnan, ACGSC, SR.32137 gr (co) dv/14.7. HCP No.1779 of 2007 and MP.No.1 of 2008 https://hcservices.ecourts.gov.in/hcservices/