IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN HCP.NO.1551 OF 2008 Chinnasamy ...Petitioner Vs. 1. The State of Tamilnadu represented by the Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009. 2. The Union of India represented by The Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), New Delhi. 3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai – 600 066. ..Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus directing the respondents to produce the detenu Kannusamy Thirugnanam, Son of S.Kannusamy, aged 20 years who is detained in Central Prison,. Puzhal, Chennai in pursuance of detention order dated 20.9.2008 in G.O.No.S.R.1/596-5/2008 before this Court to call for the records, set aside the order and set the detenu at liberty forthwith. For petitioner : Mr.S.Palanikumar For Respondents: Mr.N.R.Elango, A.P.P. for R1 & R3 Mr.M.Dhamodharan 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 second respondent in G.O.No.S.R.1/596-5/2008 dated 20.9.2008 whereby one Kannusamy Thirugnanam was ordered to be detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner. 3. The order under challenge came to be passed under the following circumstances. (a) On 23.8.2008, on interception, the detenu Kannusamy Thirugnanam, holder of Indian passport No. G.8572288 dated 19.5.2008 issued at Chennai, arrived by Singapore Airlines Flight. He was intercepted on suspicion that he might be in possession of smuggling dutiable foreign goods without declaring to customs authorities or paying the appropriate duty. He was found in possession of checked- in-baggage viz., one brown card board carton and one Samsung 32" LCD TV carton. Not satisfied with the declaration made by him, further interrogation was made. After detailed examination in the presence of witnesses, the checked in baggage were found to contain one Samsung 32" LCD TV and the other cardboard carton found to contain two "Dumex" dugro 1 plus milk power (700 grams) refilled pockets among his used personal effects. As one of the milk powder pocket was found heavy, the same was opened and found to contain six numbers of expensive wrist watches of foreign origin and they were actually seized under a cover of mahazar. (b) When the detenu was questioned about the same, he gave a reply that the watches did not belong to him and he further informed that he did not know their value and agreed for valuation adopted by the investigation based on internet as well as local market value and they were actually valued at Rs.9,85,100/-. The confessional statement was also recorded from him wherein he stated that he had no idea about the watches and when he board the flight, the same was handed over to him by his uncle to be handed over to the family members at Madras and it was a surprise to him. It was found that he has committed an offence under the provisions of COFEPOSA Act. The recommendations were made and a case came to be registered as against the detenu under Section 111(i)(l) and (m) of the Customs Act, 1962 and he was also found to have committed offence punishable under sections 132 and 135 of the Indian Customs Act. https://hcservices.ecourts.gov.in/hcservices/ (c) Thereafter, the detenu was arrested and sent to judicial remand. Originally, he made bail application before the Additional Metropolitan Magistrate Court and the same was dismissed. On dismissal, he moved bail before the Court of Sessions. The same was allowed granting bail imposing condition inter alia impounding his passport. The representations sent by the detenu were also replied. The detaining authority, after perusal of the materials available was satisfied that, on the facts and materials placed, if he remain at large, he will indulge in such activities again and that further recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities. Under such circumstances, the detaining authority considered that it has become necessary to detain him under Section 3 (1)(i) of the COFEPOSA Act 1974. Accordingly, an order came to be passed which is the subject matter of challenge before this Court. 4. Advancing the argument on behalf of the petitioner, the learned counsel would submit that as could be seen from the detention order, the detenu was found in possession of six expensive watches of foreign origin which were transported by him illegally which would amount to smuggling and they were actually valued by taking the valuation from the internet and also the local market value and thus, the figure of Rs.9 lakhs and odd were arrived at. The first representation was given by the detenu on 30.9.2008 and for the same, a reply was given on 10.10.2008 whereby it was found that the valuation was made both from the internet as well as local market value. The second representation was made on 20.10.2008 for which the authorities gave a reply stating that since the watches could not be valued through the local market value they were valued through internet. Thereafter, another representation was sent on 2.12.2008 which brought forth another reply whereby it was found that 2 watches have price tags and in respect of the other 4 watches, they were actually valued both by internet and local market value. Therefore, regarding these valuation, the authorities have completely given inconsistent answers. Thus, there arise necessary for the detaining authority to call for clarification how the valuation was actually fixed but they have not done so before passing the order. 5. Added further learned counsel, in a given case like this, when the relied on document namely, on what basis the value was arrived at were not furnished to the detenu and even after the representations and the subjective satisfaction recorded by the authorities as found in order could not have been arrived properly and on that ground also the order suffers. Learned counsel would further add, it is not the case of the department that the detenu was making often or frequent visit to the foreign countries. This was the only visit made by him. It is true that the authorities have not observed in the order that there was frequent visit. It was stated https://hcservices.ecourts.gov.in/hcservices/ in the order that he would indulge in such activities in future. In order to take such a view that the detenu would indulge in such activities in future, there was no material available at all. 6. Learned counsel for the petitioner placing reliance on the decision of the Apex Court reported in (2009) 2 MLJ (Crl.) 455 (Pooja Batra v. Union of India & others) would submit that in the absence of any specific and authenticated material to indicate that he had the propensity and potentiality to continue to indulge in such activities in future, the mere fact that on one occasion person smuggled goods into the country would not constitute a legitimate basis for detaining him under the COFEPOSA Act. 7. In the instant case, when bail was granted in favour of the detenu by the Principal Sessions Court, the passport was actually impounded and it was actually in the custody of the department and this factual aspect has not been taken into consideration by the detaining authority. When the pass port was actually impounded and was in the custody of the department, there is no question of the detenu making any further visit or indulging in such activities of smuggling in future and thus, it should have been considered by the detaining authority before passing the order but not done so. Hence, on these grounds the order has got to be set aside. 8. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9. Pursuant to the recommendation made and the facts and circumstances placed along with the materials, the State Government has passed an order of detention which is the subject matter of challenge. 10. The factual position that, on arrival from Singapore the detenu, holder of Indian Passport No.G.8572288 dated 19.5.2008 was found in possession of two checked in baggage; that the detenu was intercepted and thereafter, it was opened and six expensive watches of foreign origin were seized; that the confession statement of the detenu was recorded; that the detenu was arrested and the authorities were of the opinion that the detenu has committed the offence which is punishable under the provisions of the Customs Act, that the detenu was remanded; that he moved two bail applications and the same was originally dismissed and thereafter, he moved the Court of Sessions where bail was granted, are all not in controversy. 11. The order of detention made under the provision of the COFEPOSA Act dated 20.9.2008 is challenged on the ground of non- application of mind. Admittedly, after the order was passed on https://hcservices.ecourts.gov.in/hcservices/ 20.9.2008, the first representation was made by the detenu on 30.10.2008 which broughtforth a reply on 10.10.2008 as found in Page No.9 of the typed set. A reading of the same would indicate that the valuation of the six watches, which according to the department were smuggled by the detenu, was fixed by looking into the internet and also taking into consideration the local market value. Thereafter, second representation was made on 13.11.2008 which brought forth a reply on 20.10.2009 as found in page No.11 of the typed set which would clearly indicate that the valued was fixed by taking into consideration the valuation as found in the internet. The third representation was made on 28.1.2009 which brought forth another reply dated 19.2.2009 as found in Page No.45 of the booklet wherein it was reiterated that the valuation was made by looking to the internet and also taking into consideration the local market value of the goods. Thus, three representations were made by the detenu which brought forth three replies. The value arrived at by the authorities were shown in different ways. Under such circumstances, it is needless to say, in a given case like this, the valuation of the goods alleged to have been smuggled is important and relevant factor. When such discrepancies were noticed, the detaining authority should have called for clarification but failed to do so. 12. Further in all these representations, the detenu was going on demanding for the relied on documents. A reply was given by the learned counsel for the State that page Nos.81 to 139 of the booklet actually covers the value of 4 watches as found in the internet and in so far as two watches were concerned, the price tags were found, but this cannot be a proper reply in this regard for the simple reason that as to the method of arriving the valuation, the case of the department was found to be different in two stages. It has categorically stated that the valuation of the prevailing market price was taken into consideration. Under such circumstances, when relied on documents were asked for, duty is cast upon the authorities to supply the same to the detenu. If not supplied, subjective satisfaction could not have been arrived at by the authorities proper and hence, on that ground the order would suffer. 13. Apart from this, in the instant case, it is not the case of the department that he was making frequent visit but he has made only one visit to Singapore. Even assuming that the case of the department is true that the detenu actually smuggled the goods, it is highly doubtful whether there was materials available to speak so. All would indicate that there is no specific and authenticated material to indicate that he had the propensity and potentiality to continue to indulge in such activities in future. The Court is of the considered opinion that the decision of the Apex Court relied on by the learned counsel for the petitioner reported in (2009) 2 MLJ Crl 455 (Pooja Batra v. Union of India & others) would squarely apply to the facts of this case. It is apt and appropriate to reproduce that part of the https://hcservices.ecourts.gov.in/hcservices/ judgment. " In the absence of any specific and authenticated material to indicate that he had the propensity and potentiality to continue to indulge in such activities in future, the mere fact that on one occasion person smuggled goods into the country would not constitute a legitimate basis for detaining him under the COFEPOSA Act." 14. From the judgment of the Apex Court, it is quite clear that merely because the detenu was found once smuggling goods into the country by itself would not constitute legitimate basis of detaining him in the COFEPOSA Act but the detaining authority must look for, whether there are any specific authenticated material to indicate that had the propensity and potentiality to continue to indulge in such activities in future. 15. Now, the Court is of the considered opinion that in the absence of the same , the order of detention cannot be found to be legal, applying the ratio as spelt out by the Supreme Court. In the above decision, the Court is of the considered opinion that in the instant case circumstances did not make out the legitimate basis for making detention under the provisions of COFEPOSA Act. On all these grounds, the Court is of the opinion that without hesitation, the order of detention has got to be set aside. 16. Accordingly, this habeas corpus petition is allowed setting aside the order of the second 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. https://hcservices.ecourts.gov.in/hcservices/ 2. The Secretary to the Government, Union of India, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), New Delhi. 3. The Superintendent, Central Prison, Puzhal, Chennai – 600 066. 4.The Public Prosecutor, High Court, Madras.104 1 cc To Mr.S.Palani Kumar, Advocate, SR.29818 HCP.NO.1551 of 2008 bjy(co) pmk.22.7.2009. https://hcservices.ecourts.gov.in/hcservices/