IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.08.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN HCP.NO.1939 OF 2008 Salukhalbeevi ..Petitioner Vs. 1.The State of Tamil Nadu rep. by its Secretary to Government, Public (SC) Department, Fort St.George, Chennai 600 009. 2. The Union of India rep. by the Secretary to Government, Ministry of Finance, Dept., of Revenue, (COFEPOSA-Unit),New Delhi. 3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai 600 066. ..Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records relating to the detention order in G.O.No.S.R.1/747-4/2008 dated 18.11.2008 passed by the first respondent herein and quash the same and direct the respondent to produce the body of the person of the detenu namely Sadhik Basha, Son of Kareem, aged about 39 years before this Court, now detained under Section 3(1)(i) of the COFEPOSA Act in the Central Prison, Puzhal, Chennai and set him at liberty. For petitioner : Mr.S.Palanikumar For Respondents : Mr.N.R.Elango 1 & 3 Additional Public Prosecutor For Respondent No.2: Mr.S.Thirumavalavan SPECG --- https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) The petitioner herein challenges the impugned order of detention passed by the first respondent in G.O.No.S.R.1/747-4/2008 dated 18.11.2008 whereby one Sadhik Basha S/o Kareem was ordered to be detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 2. Affidavit filed in support of the petition along with the grounds of attack and the entire materials placed are scrutinized. Heard the learned counsel on either side. 3. The said order of the detention came to be made under the following circumstances: (i) On 7.10.2008, the detenu Sadhik Basha, holder of Indian Passport arrived from Singapore along with two checked-in-baggage and one blue colour shoulder bag as hand baggage. He was intercepted by the Intelligence Officer attached to the Air Intelligence Unit of Air customs when he was proceeding towards 'exit' by crossing Green Channel, that he might be attempting to smuggle electronic goods of high value in his baggage. On enquiry, the detenu stated that he was carrying goods worth Rs.50,000/-. Not satisfied with the statement, the officer in the presence of two independent witnesses, make a detailed examination on his hand and checked- in baggage one by one and when opened in the presence of witnesses, they found to contain 8 Nos. Sony Digital Camera DSC-W150, 3 Nos. Sony DCR-VX-2100 E Video Camera Recorder, 20 Nos. Nikon Cool Pix S210 and 4 Nos. Pioner DEH 3050 UB car stereo panels. On personal search, no incriminating document was recovered. When he was questioned as to whether he was in possession of any valid document for the legal import or the above said electronic goods, he replied in negative. He further added that he was not aware of the value and he will agree for the value to be adopted by the Department. The value of the goods was fixed at Rs.9,07,050/-. Since he was attempted to smuggle the electronic goods into India by way of gross mis-declaration thereby contravening the provisions of Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992, the goods were seized under a mahazar. The statement which was given voluntarily was recorded in the presence of witnesses. All the goods were confiscated under Section 111 of the Customs Act. He was arrested on 8.10.2008 and produced before the Additional Chief Metropolitan Magistrate, E.O.I, Chennai, and remanded to judicial custody and the period of remand was also extended then and there. A telegram dated 8.10.2008 was sent to as to the confirmation of arrest and reasons therefor. A search was made in his residence on 8.10.2008. A bail application was filed on his behalf on 8.10.2008 before the Additional Chief Metropolitan Magistrate, E.O.I, Chennai and the same was dismissed on 22.10.2008. Thereafter, another bail application was filed before the Principal https://hcservices.ecourts.gov.in/hcservices/ Sessions Judge, City Civil Court, Chennai and the same was dismissed on 10.11.2008 and thereafter one another bail petition dated 13.11.2008 was filed before this Court and the same is pending for disposal. (ii) Pending disposal, a representation was sent by his mother on 24.10.2008 to the State Government. On consideration, the same was rejected. Under such circumstances, the State Government satisfied that he indulged in smuggling of goods and also felt that there arose necessity that an order of detention is to be passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and in order to prevent him from indulging in such prejudicial activities in future, an order of detention became necessary and accordingly made the order on 18.11.2008, which is challenged in this Habeas Corpus Petition. 5. Assailing the order, the learned counsel for the petitioner would submit that the order of detention came to be passed on 18.11.2008. It is not in controversy that the detenu made a bail application before the Additional Chief Metropolitan Magistrate E.O.I, Court, Chennai on 8.10.2008 and the same was dismissed, subsequently another bail application was filed on 13.11.2008 and the same was pending. When the copies of materials and the relied upon documents were furnished to him, the fact as to the first application and its dismissal and the second application and its pendency were not actually incorporated and hence the order is defective. This fact was brought to the notice of the authority by way of representation. It is averred in the affidavit filed in support of the petition, but this has not been answered by the State Government. Further the learned counsel would further add that though a bail application was filed on 13.11.2008 and the same was pending before this Court, the authority has made the following observation: "The State Government are aware of the fact that he was in the Central Prison, Chennai as remand prisoner that his remand is for the period specified in law and he would be released on statutory bail thereafter. The Government are also aware that he would likely to file another bail petition in the same Court or before the Higher Court and there was likelihood of he being released on bail”. When the bail application was actually pending before the High Court, such an observation that he might have filed another bail application would clearly indicate the non-application of mind on the part of the detaining authority. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned counsel for the petitioner would further add that a representation was made on behalf of the detenu and the same was rejected after a period of 93 days. It is quite clear that the relied upon documents should have been served upon the detenu within a period of five days, but the delay has been occurred which caused prejudice to the detenu. 7. Added further the learned counsel, as to the date of representation stated in Page 5 of paragraph 10 of the detention order, it does not speak about the date when it was rejected, but it would contain only the Month as November and year as 2008, Thus, when it was actually rejected, the date was not made known to the detenu. 8. Learned counsel would further add that after passing the detention order, the same was placed before the Advisory Board. On his appearance, the detenu has made a representation on 20.1.2009 that he should be allowed to engage a counsel to assist him. But, the same was not considered at all. It is true that the detenu is not vested with a right to have the assistance of a counsel. The Apex Court had ruled that when such a request is made, the Advisory Board should adduce reasons to grant or not to grant. But, in the instant case, the request was not at all considered and that has also very much caused prejudice to the detenu. Under such circumstances, on all the above grounds, the order of detention has got to be set aside. 9. Heard the learned Additional Public Prosecutor on the above contentions and the Court has paid its anxious consideration. 10. It is not in controversy that the order of detention came to be passed by the first respondent on 18.11.2008 under the facts and circumstances referred above. A perusal of the grounds of detention in Page 5 of Paragraph 9 reads as follows: "The Court in its order dated 10.11.2008 has dismissed the above bail application. You have filed another bail application dated 13.11.2008 before the High Court, Chennai which is pending for disposal." But, as rightly pointed out by the learned counsel for the petitioner, the above lines have not been found in the translated version, thus as rightly pointed by the learned counsel that when the representation was made, this mistake was also brought to the notice of the authority. It is also averred in the affidavit filed in support of the petition, but no reply was forthcoming from the State. The translation copy has to be served on the detenu in the language known to him, so that he could understand , but in the instant case https://hcservices.ecourts.gov.in/hcservices/ though the copy of the order was actually served on him in the language known to him, the omission of this part would be clearly indicative of the fact that he was not able to understand the order in full and though a representation was made in this regard, no reply was given. All would go to show that the order of detention is defective. Apart from that, it is also an admitted position that the bail application was filed on 13.11.2009 before this Court, while the matter stood thus, the authority has averred in its order that he would likely to file another bail application before the same or other court and hence there is likelihood of he being released on bail. This observation can only be stated as an expression of impression in the minds of the authority, who made the order. While a bail application was actually pending in this Court, no question of filing another bail application would arise and thus it can be stated that the said observation is premature and the order would suffer on this ground. 11. Further, when the law would mandate that the relied upon documents must be served upon the detenu within the statutory period of five days, but in the instant case, the documents have been served after 93 days. Added further even the date of rejection of representation is not found in the order, but it was stated as --/ 11/2008 and even though it was brought to the notice of the authority by way of representation, the date of order of rejection remains unknown, 12. Above all, when the detenu appeared before the Advisory Board on 20.1.2009, he has also made a written representation to have the legal assistance for the reasons stated before the same. The order of approval made by the Board is also perused by the Court. There was an occasion to consider the questions whether the order of detention must be placed before the Advisory Board and whether legal Assistance has got to be granted, it came up for consideration before the Apex Court in KAVITHA Vs. STATE OF MAHARASHTRA AND OTHERS reported in 1981 SC 1641 has held as follows: "Though a detenu has no right under Section 8(e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to appear through a legal practitioner in the proceedings before the Advisory Board, he is entitled to make a representation for the services of a lawyer to appear before the said Board which is under obligation to consider the same dispassionately in the facts of a particular case. The representation made by a detenu for legal assistance before the Advisory Board, has to be considered not perfunctorily but with due application of mind, since in each case of https://hcservices.ecourts.gov.in/hcservices/ detention, the liberty of an individual is involved". It would be quite clear that from the very reading of the decision that the detenu is not vested with any right under the provisions of COFEPOSA Act to appear through his counsel in proceeding before the Advisory Board. But, he is entitled to make a representation for the service of a lawyer to appear before the Board and the Board is also under obligation to consider the same. In the instant case, though the representation was made before the Board to take assistance of a legal practitioner, nothing is found indicating whether such a representation was considered by the Board at all. Under such circumstances, the decision of the Apex Court, if applied, would also make the order under challenge defective. For all the above reasons, the order under challenge has got to be set aside and it is accordingly set aside. 13. For all the above reasons adduced which in the considered opinion of the court would be sufficient to set aside the order of detention. 14. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the first respondent in G.O.No.S.R.1/747-4/2008 dated 18.11.2008 , The detenu, namely, Sadhik Basha, who is now confined at Central Prison, Chennai 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 VJY To 1.THE SECRETARY TO GOVERNMENT, PUBLIC (SC) DEPARTMENT, FORT ST.GEORGE, CHENNAI 600 009. 2. THE SECRETARY TO GOVERNMENT, THE UNION OF INDIA MINISTRY OF FINANCE, DEPT., OF REVENUE, (COFEPOSA-UNIT),NEW DELHI. https://hcservices.ecourts.gov.in/hcservices/ 3. THE SUPERINTENDENT OF CENTRAL PRISON, CENTRAL PRISON, PUZHAL, CHENNAI 600 066. 3. THE SUPERINTENDENT OF CENTRAL PRISON, PUZHAL, CHENNAI 66 4. THE JOINT SECRETARY TO GOVT PUBLIC (LAW AND ORDER) FORT ST.GEORGE, CHENNAI -9 5.THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. 1 cc To Mr.S.Thirumavalavan, Advocate, SR.37176 1 cc To Mr.S.Palanikumar, Advocate, SR.36244 HCP.NO.1939 OF 2008 LA(CO) SRA(27/08/2009) https://hcservices.ecourts.gov.in/hcservices/