IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18.06.2010 C O R A M The Honourable Mr. Justice C.NAGAPPAN and The Honourable Mr. Justice P.R.SHIVAKUMAR Habeas Corpus Petition Nos.1303 and 1306 of 2010 H.C.P.No.1303 of 2009 Smt.Geethalakshmi, .. Petitioner W/o.Hameed Mustaq Vs. 1.The Secretary to Government of Tamil Nadu, Public (SC) Department Secretariat, Chennai-9 2.The Secretary to Govt of India Ministry of Finance, Department of Revenue, (COFEPOSA UNIT) Central Economic Intelligence Bureau, Janpath Bhavan, 'B' wing 6th Floor, Janpath, New Delhi .. Respondents PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus to call for the records in connection with the the order of detention passed by the first respondent dated 26.06.2009 in G.O.No.SR1/346-7/2009 against the petitioner's husband, who is confined at Central Prison, Puzhal, Chennai and set aside the same and to direct the respondents to produce the detenu viz. Hameed Mustaq before this Hon'ble Court and set the detenu at liberty. For Petitioner : Mr.B.Kumar, Senior Counsel for M/s.R.Rajarathinam For Respondents : Mr.Babu Muthu Meeran, Addl. Public Prosecutor (for R1) Mr.S.Udayakumar (for R2) SCGSC H.C.P.No.1306 of 2009 Suresh, .. Petitioner S/o.K.Selvanathan Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.The Secretary to Government of Tamil Nadu, Public (SC) Department Secretariat, Chennai-9 2.The Secretary to Govt of India Ministry of Finance, Department of Revenue, (COFEPOSA UNIT) Central Economic Intelligence Bureau, Janpath Bhavan, 'B' wing 6th Floor, Janpath, New Delhi .. Respondents PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus to call for the records in connection with the the order of detention passed by the first respondent dated 26.06.2009 in G.O.No.SR1/346-5/2009 against the petitioner's brother, who is confined at Central Prison, Puzhal, Chennai and set aside the same and to direct the respondents to produce the detenu viz. S.Tamilselvam @ Kumar before this Hon'ble Court and set the detenu at liberty. For Petitioner : Mr.B.Kumar, Senior Counsel for M/s.R.Rajarathinam For Respondents : Mr.Babu Muthu Meeran, Addl. Public Prosecutor (for R1) Mr.S.Udayakumar (for R2) SCGSC COMMON ORDER (Order of the Court was made by P.R.SHIVAKUMAR, J.) These two Habeas Corpus Petitions have been filed against the preventive detention orders passed by the first respondent in respect of the detenus P.Hameed Mustaq and S.Tamilselvam @ Kumar respectively under section 3(1)(ii) and 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The former was detained on the subjective satisfaction of the first respondent that he had abetted smuggling of Ketamine by the latter and the latter was detained as he had attempted to smuggle Ketamine out of India and that it was necessary to detain them with a view to prevent the former from abetting smuggling of goods and the latter from smuggling of goods. Smt.Geethalakshmi, wife of the detenu Hameed Mustaq is the petitioner in H.C.P.No.1303/2009. Suresh, the brother of the detenu S.Tamilselvam @ Kumar is the petitioner in H.C.P.No.1306/2009. 2. Hameed Mustaq, the detenu concerned in H.C.P.No.1303/2009 was arrested on 02.05.2009 under arrest memo F.No.VIII/48/8/2009-DRI dated 02.05.2009 on the ground that 55.400 Kgs of white colour granular crystalline substance believed to be Ketamine was seized by the officers of the Directorate of Revenue https://hcservices.ecourts.gov.in/hcservices/ Intelligence from export consignment covered under Shipping Bill No.3358666 dated 29.04.2009 filed in the name of M/s.Raja Rajeswari Enterprises, having IEC No.0406012113 as the same was believed to be attempted to be exported without a No Objection Certificate envisaged under Notification No.67(RE-2007)/2004-2009, dated December 27, 2007 issued by the Director General of Foreign Trade under Section 5 read with section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 and without mentioning the fact that Ketamine was being exported in the shippingbill and by concealment in the export consignment under which Potash Feldspar was supposed to be exported, which made the goods liable for confiscation under section 113(d), (e) and (h) and section 119 of the Customs Act, 1962 and that the detenu Hameed Mustaq abetted Tamilselvam @ Kumar, the other detenu in smuggling the contraband out of India. 3. Similarly, Tamilselvam @ Kumar, the detenu concerned in H.C.P.No.1306/2009 was arrested on 19.05.2009 under arrest memo F.No.VIII/48/8/2009-DRI dated 19.05.2009 based on the above said facts in respect of the very same consignment attempted to be exported and believing that the said detenu committed the offence of smuggling, punishable under sections 135(1)(b) and 135(1)(c) of the Customs Act, 1962. 4. Taking note of the above said occurrence for which the detenus concerned in these HCPs were arrested and remanded and the further fact that the detenu Hameed Mustaq concerned in H.C.P.No.1303/2009 was able to get an order of release on bail, whereas the bail petition filed on behalf of the detenu Tamilselvam @ Kumar concerned in H.C.P.No.1306/2009, on the file of the Additional Chief Metropolitan Magistrate E.O.-II, Egmore was dismissed and a similar petition filed on the file of the Principal Sessions Judge, Madras was pending, the first respondent (detaining authority) formed a subjective satisfaction that it was necessary to detain Hameed Mustaq and Tamilselvam @ Kumar under sections 3(1) (ii) and 3(1)(i) respectively of the COFEPOSA Act in order to prevent the detenu Hameed Mustaq from abetting smuggling of goods and detenu Tamilselvam @ Kumar from smuggling of goods. 5. The order of detention in respect of the detenu Hameed Mustaq was passed in detention order G.O.No.SR.I/346-7/2009 Public (S.C) Department dated 26.06.2009. The order of detention in respect of Tamilselvam @ Kumar was passed in detention order G.O.No.SR.I/346-5/2009 Public (S.C) Department dated 26.06.2009. The said orders are assailed in these HCPs on various grounds set out in the respective petitions. As the facts are similar and the detention orders impugned in these HCPs were passed on the basis of one and the same occurrence and since the detention orders are challenged in both the cases almost on same grounds, both the HCPs are taken up for joint hearing and are being disposed of by a common order. 6. We have heard the submissions made by Mr.B.Kumar, learned senior counsel representing the counsel on record for the https://hcservices.ecourts.gov.in/hcservices/ petitioners, by Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, representing the first respondent and by Mr.S.Udayakumar, learned Senior Central Government Standing Counsel representing the second respondent. The materials placed in the form of booklet and also in the form of typed set of papers were also perused. 7. Though several grounds have been raised in the petitions assailing the orders of detention, Mr.B.Kumar, learned senior counsel appearing for the petitioners mainly relies on the following contentions:- i)There was non-application of mind on the part of the first respondent/detaining authority, as to whether the contraband alleged was Ketamine or Ketamine Hydrochloride; that the arrest memo refers to the contraband as Ketamine, whereas the Chemical Analysis Report is to the effect that the contraband responded to the test of Ketamine Hydrochloride; that even in the grounds of detention, at one place the contraband is referred to as Ketamine and at another place, it is referred to as Ketamine Hydrochloride; that the detaining authority failed to notice the fact that Ketamine is a substance different from Ketamine Hydrochloride, an organic compound and that the failure on the part of the detaining authority to consider whether Ketamine and Ketamine Hydrochloride are one and the same, would amount to non-application of mind vitiating the orders of detention concerned in these HCPs. ii)There was denial of reasonable opportunity to make an effective representation against the orders of the detention in so far as the copies of the documents not only referred to but also relied on by the detaining authority, were not supplied to the detenus, which caused prejudice to the detenus and thus would vitiate the orders of detention. iii)There was discrepancy regarding the number of bundles stuffed in the container, checked by the customs authorities before sealing the container and the number of bundles found at the time of examination by the Directorate of Revenue Intelligence authorities after opening the container in the presence of witnesses and in view of such discrepancy, the detaining authority should have sought clarification and applied its mind. Since the detaining authority has not applied its mind to the above said discrepancy, the same exhibits non-application of mind, which shall alone vitiate the order of detention. 8. As per the grounds of detention, in pursuance of a specific intelligence that Ketamine Hydrochloride, a Club drug was being smuggled to Malaysia under the guise of exporting Potash Feldspar, the Directorate of Revenue Intelligence officials detained a container bearing container No.INLU-2110243 covered under Shipping Bill No.3358666 dated 29.04.2009 filed in the name of M/s.Raja Rajeswari Enterprises, Chennai (IEC No.0406012113) and https://hcservices.ecourts.gov.in/hcservices/ the said container which was to be shipped per vessel M.V.Santa Rosa on 05.05.2009 was moved to CCTL 'O' Yard, CFS, Royapuram, Chennai and when the said container was opened and checked in the presence of witnesses and customs officials and officials of CCTL, it was found that as against 23.000 MT of declared weight of Potash Feldspar powder, the weighment slip found enclosed in the Shipping Bill contained the detailed weight of 21.640 MT; that when the bags were de-stuffed, two bags were found different from other bags and on opening the same they were found to contain 55.400 Kgs of Ketamine. It has also been found by the detaining authority that after the container was stuffed with the consignment to be shipped in the factory premises in the presence of the customs officials, the container was taken to a weigh bridge and after weighment, the same was taken to A.V.M. Enterprises at Korrukkupet, where two more bags (found to contain Ketamine Hydrochloride) were kept underneath the bags in the last row of the container by Tamilselvam @ Kumar and one Arul and thereafter the container was transported to Chennai port. 9. The first and foremost contention of the learned counsel for the petitioners is that though the Directorate of Revenue Intelligence authorities might have found out that 55.400 Kgs of powder suspected to be Ketamine was found in two bags kept in the container for shipment as per vessel M.V.Santa Rosa, there is an ambiguity as to whether the substance is Ketamine or Ketamine Hydrochloride and that the failure to consider whether Ketamine and Ketamine Hydrochloride are one and the same substance shall vitiate the orders of detention. As rightly pointed out by the learned senior counsel for the petitioners, the arrest memos found at pages 177 and 272 refer to the contraband as Ketamine and not Ketamine Hydrochloride. It is also pertinent to note that in the grounds of detention, at one place, the contraband is referred to as Ketamine and that at another place, the same is referred to as Ketamine Hydrochloride. The Chemical Analysis Report found at page 328 of the paper book says that the samples drawn from the contraband responded to the test for Ketamine Hydrochloride, an organic compound . It also contains a statement to the effect that the purity of the samples could not be determined for want of reference standard and facilities. The export of Ketamine Hydrochloride, according to the detaining authority, is prohibited unless a No Objection Certificate from the Narcotics Commissioner is obtained in accordance with Notification No.67(RE-2007)/2004-2009, dated December 27, 2007. A copy of the notification is found at page 330 of the paper book. The said notification, as rightly pointed out by the learned senior counsel for the petitioners refers to the prohibited item, export of which shall be allowed subject to obtaining a No Objection Certificate from the Narcotics Commissioner, is named Ketamine and not Ketamine Hydrochloride or derivatives of Ketamine. In this regard, the learned senior counsel for the petitioners drew our attention to the judgments in (1) N.K.Jawahar Ali and others vs. The State of Tamil Nadu, rep. by its Secretary, Public (SC) Department, Fort St. George, Chennai – 600 009 and others reported in 2009-2-L.W.(Crl.) 1285, and (2) Esakkimuthu vs. State represented by Commissioner of Police, Office https://hcservices.ecourts.gov.in/hcservices/ of the Commissioner of Police, Kokkirakulam, Tirunelveli City and Another reported in (2009) 3 MLJ (Crl) 1, both decided by the division benches of this court. In the said cases, the earlier division benches have held that the non-application of mind on the part of the detaining authority as to whether Ketamine and Ketamine Hydrochloride are one and the same substance would amount to non- application of mind and that the same would vitiate the ordes of detention concerned in those cases, which were also clamped under section 3(1)(i) of the COFEPOSA Act. 10. The learned Additional Public Prosecutor and the learned Senior Central Government Standing Counsel, on instructions from the respective authorities, have also submitted that pure Ketamine is available in powder form and Ketamine Hydrochloride, which is also in powder form, is an organic compound of Ketamine, different from pure Ketamine. In view of the same and in the light of the above said view expressed by the earlier division benches, this court is of the considered view that the failure to consider the question whether Ketamine and Ketamine Hydrochloride are one and the same or different substances exhibits non-application of mind vitiating the orders of detention. 11. In addition to the above, as it has been conceded on behalf of the respondents that Ketamine is different from Ketamine Hydrochloride, an organic compound, the detaining authority ought to have applied its mind as to the applicability of the Notification No. 67(RE-2007)/2004-2009, dated December 27, 2007, wherein Ketamine alone has been referred to and Ketamine Hydrochloride and derivatives of Ketamine have not been referred to. The same, no doubt, exhibits non-application of mind on the part of the detaining authority. It is also pertinent to note that the percentage of Ketamine found in the contraband which was identified by the laboratory to be Ketamine Hydrochloride has not been found and the detaining authority has also failed to take the same into consideration in forming its subjective satisfaction. The same shall also amount to non-application of mind vitiating the order of contention. 12. With regard to the second contention that there was denial of reasonable opportunity to the detenus to make effective representation against the orders of detention concerned in these HCPs, the learned senior counsel for the petitioners drew our attention to the documents supplied to the detenus in the form of booklet and contended that a copy of a vital document, namely the shipping bill No.3358666 dated 29.04.2009 filed in the name of M/s.Raja Rajeswari Enterprises, Chennai at CCTL 'O' Yard, CFS, Royapuram, Chennai was not supplied to the detenus and that even after a representation was made complaining non-supply of a copy of the said document, the same was not furnished. The above said contention that a copy of the shipping bill was not supplied to the detenus, is not disputed by the respondents. On the other hand, an attempt is made to show that the non-supply of the same would not have prejudiced the detenus, since the document was that of Tamilselvam @ Kumar, the detenu concerned in H.C.P.No.1306/2009. https://hcservices.ecourts.gov.in/hcservices/ This court finds substance and force in the submission made by the learned senior counsel for the petitioners that though the said document might have been one in the possession of the detenu in H.C.P.No.1306/2009, admittedly the same was recovered under the mahazar and hence the detaining authority should not have assumed that a copy would be available with the said detenu and the non- production of a copy could not cause any prejudice. 13. It should also be noticed that the grounds of detention refers to the weighment bills which are found at pages 40 and 42 and the tamil translation of the same are found at pages 41 and 43 respectively in the paper book supplied to the detenus. The name of the person in whose name the weighment certificates were issued, has not been noted in the weighment certificates. Except four signatures with the date 01.05.2009, there is no material to show that the weighments certificates were issued in the name of Arul. In copies of weighment certificates in the vernacular version there are only indications to the effect that there were four signatures. But, signatories' names are not found. Under such circumstances, the detaining authority referred to the said weighment certificates as certificates issued in the name of Arul. As rightly pointed out by the learned senior counsel for the petitioners, the same shall, either show non-application of mind or non-supply of a relied on document, which was said to be in the name of Arul. The failure to supply the above said documents will, no doubt, would have prejudiced the detenus as the same provided a handicap for them to make an effective repesentation against the revocation of the orders of detention. 14. In this regard, the learned senior counsel for the petitioners drew our attention to the judgment of the Hon'ble Supreme Court in Yumnam Mangibabu Singh v. State of Manipur and others reported in AIR 1983 SUPREME COURT 300, wherein it has been held that the non-furnishing of copies of relied on documents, namely two statemens regarding the said case, really prevented the appellant therein from making effective representation against his detention and hence the constitutional safeguard was breached by the order of detention impugned in that case. Applying the said ratio to the case on hand, we are satisfied that the orders of detention assailed in these HCPs are vitiated because of the non- supply of documents, which are not only referred to but also relied on by the detaining authority in the grounds of detention. 15. The next contention raised by the learned senior counsel for the petitioners is that there was non-application of mind on the part of the detaining authority regarding a vital discrepancy, which alone shall be sufficient to vitiate the orders of detention impugned in these cases. The learned senior counsel for the petitioners submitted that as per the shipping bill, 460 bags were declared to be the consignment for the intended shipment, whereas on de-stuffing the container after ensuring that the seals put by the customs authorities at the place of loading were in tact and breaking open the seals, the total number of bags found by the Directorate of Revenue Intelligence authorities was 444 bags marked https://hcservices.ecourts.gov.in/hcservices/ with Sl.Nos.1 to 444 and that the above said discrepancy, which is noticed in the mahazar itself, was not adverted to by the detaining authority while entertaining a subjective satisfaction regarding the necessity to clamp the orders of detention on the detenus. 16. It is the further contention of the learned senior counsel for the petitioners that even all the 444 bags found in the container had not been accounted for; that the statement of Nagappan of Chennai Impex was to the effect that only 435 bags were stuffed in the container in his presence and as per the statement of one Thanikachalam, the driver of the container lorry, two more bundles were placed under the last row of the bundles in the container after weighment; that the statements of those two persons, would, at best account for the loading of 437 bags, whereas the total number of bags found in the container as per the mahazar was 444 and that the detaining authority has not adverted to the question how and when the remaining seven bags could have entered in the container. According to the learned senior counsel for the petitioners, those bags could have entered the container at some other place and that the two bags assigned bag Nos.381 and 382 respectively, in which the contraband were found, could have been two out of the said seven bags; that the persons competent to explain the above said discrepancy were the customs officials who were present at the time of loading of the goods intended for shipment in the container at the factory premises; that the non- examination or failure to consider or non-production of the copies of the statements to the customs officials who were present at the time of loading and put seals after numbering the bags would show non-application of mind on the part of the detaining authority and that the same shall vitiate the orders of detention. It is the further contention of the learned senior counsel for the petitioners that in the light of the above said discrepancy, the detaining authority should have sought a clarification regarding the above said discrepancy regarding number of bags found in the container and the failure to do so will show non-application of mind and vitiate the orders of detention. 17. We find substane and force in the above said contention of the learned senior counsel for the petitioners. As rightly pointed out by the learned senior counsel for the petitioners, the detaining authority had not drawn his attention to the above said discrepancy, a vital one. In the light of the discrepancy regarding the number of bundles found in the container whereas the seals put by the customs authorities were found in tact, the customs authorities, who were present at the time of stuffing the container alone shall have the answer for the same. Especially, the statement of one Mr.Ravichandran, Examiner of Customs Department, who was present at the time of loading and who put the seals to the container being a vital one, the non-recording of his statement or the non-furnishing of his statement if such statement was recorded, would have definitely caused prejudice to the detenus besides exhibiting non-application of mind on the part of the detaining authority. https://hcservices.ecourts.gov.in/hcservices/ 18. For all the reasons stated above, we are of the considered view that the contention of the learned senior counsel for the petitioners in this regard has got to be countenanced and the orders of detention impugned in these petitions are to be held vitiated on the ground of non-application of mind also. 19. In the result, the Habeas Corpus Petitions are allowed and the impugned orders of detention, dated 26.06.2009, passed by the first respondent are set aside. The detenus P.Hameed Mustaq and P.Tamilselvam @ Kumar are ordered to be set at liberty forthwith, unless their continued custody is required in connection with any other case. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar asr To 1.The Secretary to Government of Tamil Nadu, Public (SC) Department Secretariat, Chennai-9 2.The Secretary to Govt of India Ministry of Finance, Department of Revenue, (COFEPOSA UNIT) Central Economic Intelligence Bureau, Janpath Bhavan, 'B' wing 6th Floor, Janpath, New Delhi. 3. The Superintendent, Central Prison, Puzhal, Chennai-66. 4. The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai-9. 5.The Public Prosecutor, High Court, Madras-600 104. 1 cc to Mr.R.Rajarathinam, Advocate, Sr.No.43646 2 cc to Mr.S.Udayakumar, Advocate, Sr.No.43786,43785 ORDER IN H.C.P.No.1303 and 1306 of 2009 VSV {CO} TP/2.7.2010. https://hcservices.ecourts.gov.in/hcservices/