IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.1718 OF 2007 Sabeeka .. Petitioner Vs. 1.The State of Tamilnadu represented by the Secretary to the Government, Public (SC) Dept., Fort St. George, Chennai-600 009. 2.The Union of India represented by the Secretary to the Government, Ministry of Finance, Dept. Of Revenue, Cofeposa Unit, New Delhi. 3.The Superintendent of Central Prison, Central Prison, Madurai-20. .. Respondents This habeas corpus petition has been preferred under Article 226 of the Constitution of India, calling for the records relating to the detention order in G.O.No.S.R.1/908-3/2007 dated 30.10.2007 passed by the first respondent herein and to quash the same and to direct the respondents to produce the body of the person of the detenu namely Abdul Razack Abdul Bakki, son of Abdul Razack before the court, now detained under Section 3(1)(i) of the COFEPOSA Act in the Central Prison, Madurai and set him at liberty. For Petitioner : Mr.S.Palanikumar For Respondents: Mr.Babu Muthu Meeran, APP for RR1 and 3 Mr.Kumaresan, ACGSC for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER (The order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the first respondent made on 30.10.2007 in G.O.No.SR.I/908-3/2007, whereby an order of detention under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed against the detenu, by making this petition seeking for the relief of writ of habeas corpus. 2.The affidavit filed in support of the petition and the ground of detention are perused. The order under challenge is also perused. The Court heard the learned counsel for the petitioner and also the learned counsel for the respondents. 3.The short facts, which led the petitioner to file this petition for the said relief, are as follows: On 27.09.2007, the detenu was searched by the Authorities, attached to the Customs Officers at the Anna International Airport, Chennai. When he was queried as to whether he got any Foreign currencies, he answered in negative. When a search was made, according to the Department, it was noticed that he was found in possession of 1500 US $, which was recovered from his pant pocket and further, he was found in possession of two bundles of Euro currency totalling 27,450, which was concealed in his body and the same was also recovered from him. The total Indian value of the same is Rs.16,26,687/-. His statement was recorded. He was actually shown arrested and he was also produced before the Additional Chief Metropolitan Magistrate, E.O.II. Court, Egmore, Chennai. He was remanded to judicial custody till 11.10.2007. He was also granted bail on 28.09.2007. While the matter stood thus, the Detaining Authority, on the recommendations made by the Sponsoring Authority by placing materials necessary, has passed an order of detention, since it has recorded a finding that it has arrived at subjective satisfaction that in order to prevent him from smuggling of goods in future, an order of detention has got to be passed. Hence the said detention order is the subject matter of challenge before this court. 4.The learned counsel for the petitioner, in his sincere attempt of assailing the order under challenge, would make the following submissions: The order of detention was passed on 30.10.2007. A representation was made on 30.11.2007 and the rejection letter was served on the detenu on 28.12.2007. Thus, there was a delay of nearly a month. There is no convincing or acceptable explanation tendered by the respondents' side and even in the counter, there was no explanation for the delay, which remained unexplained and inordinate also. Hence, on that ground, the order has got to be set aside. 5.The learned counsel for the petitioner would add that Section 3 (2) of the Act would mandate that immediately after passing the https://hcservices.ecourts.gov.in/hcservices/ order, within 10 days therefrom, a report in respect of the order has got to be sent by the State Government to the Central Government. In the instant case, it is not made known. Apart from that, no document was addressed to the detenu to know about the said fact and under these circumstances, the detenu was unable to know whether such a report was made in exercise of the Act and whether it was revoked. The learned counsel for the petitioner would further submit that the detenu was arrested on 27.09.2007; that a statement was recorded from him. At that time, he has stated that all the currencies were handed over by one Akbar to be handed over to one Santhosh, but in the English version, it could be seen that, it was to be handed over to one North Indian. Thus, there was no proper translation and this would indicate the non application of mind. 6.The learned counsel would further submit that actually, bail was granted on 28.09.2007, but it was found in the order that it was on 28.10.2007. Thus, it was the vital discrepancy found. Added further the learned counsel that so far as the recovery aspect is concerned, mahazar was prepared and there was arrest report lodged before the Criminal court and he was placed under judicial custody; that when they were compared, it is actually found to be different; that when these differences were found and when the materials were placed by the Sponsoring Authority, the Detaining Authority should have called for explanation, but failed to do so and hence this would suffice to set aside the order. Therefore, for the defects noted above, the order of detention has got to be set aside. 7.The Court heard the learned Additional Public Prosecutor on the above contentions. 8.The Court has paid its anxious consideration on the submissions made. It is not in controversy that the Detaining Authority, after recording a finding that it has arrived at subjective satisfaction that the activities of the detenu were in violation of the provisions of the Act, was of the opinion that an order of detention has got to be passed and thus, he has passed the order on 30.10.2007. 9.So far as the first contention is concerned, it is true, a representation was made on 30.11.2007 and the rejection order was served on the detenu on 28.12.2007 and thus, there was a delay of nearly about 30 days. But, the learned counsel for the State placed all the materials, namely the receipt of the same, the process of the representation and also the consideration by the Ministry and the preparation of the rejection letter and also the service of the same to the detenu on 28.12.2007. This Court is unable to notice any delay at all and hence insofar as the first contention as to the delay, this court is unable to see any delay much less inordinate delay and hence the first contention is rejected. 10.So far as the second contention is concerned, it would be more apt and appropriate to reproduce Section 3(2) of the Act: "When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, https://hcservices.ecourts.gov.in/hcservices/ forward to the Central Government a report in respect of the order." From a reading of the above provisions, it would be quite clear that when the order of detention is passed by the State Government, a report has got to be placed in respect of the detention order before the Central Government within a period of 10 days therefrom. Thus, it would be quite clear that a report must be sent to the Central Government within 10 days. From the materials placed by the counsel for the Central Government, it would be quite clear that the order was passed on 30.10.2007 and a letter was addressed along with the order to the Central Government only on 17.11.2007 and thus, it would be quite clear that there was a delay of 7 days. Therefore, the contention of the learned counsel for the respondents that it was within the reasonable time and thus, sending the report within 10 days is not mandatory though attractive, will not stand the scrutiny of law. Under Section 11 of the Act, when a report was placed in respect of the order of detention before the Central Government, it has got all powers to revoke the same. Even a representation by the detenu is not at all necessary. Under these circumstances, once an order of detention under the provisions of the COFEPOSA Act has been passed, a report should also be placed by the State Government before the Central Government and the law is very clear that as per Section 3(2) of the Act, the report should be sent within a period of 10 days and hence no question of contending that there is no stipulated period or calling it as a reasonable delay or it could be done on the administrative side, would arise, since the law would mandate that the report should be sent within a period of 10 days, but in the instant case, it has not been done so and hence, the mandatory provision has not been followed strictly. 11.Further, in the instant case, no material is placed to show as to whether there was communication to the detenu. Once powers are vested upon the Central Government to consider the report and even if there is no revocation order under Section 11 of the Act, the detenu should be made known as to whether it was actually revoked or not. In the instant case, whether a report was placed before the Central Government or it was considered or any order was passed thereon remained unknown to the detenu till the end. Under these circumstances, all would go to show that mandatory provisions have not been strictly followed and it has caused prejudice to the detenu and hence this court is able to see force in the contention put forth by the learned counsel for the petitioner. 12.Further, bail was granted by the Additional Chief Metropolitan Magistrate, E.O.II, Egmore on 28.09.2007 as could be evidenced from the order. But a reading of the order under challenge would reveal as if it was granted on 28.10.2007. Thus, there has been discrepancy. The added circumstance is that it is the case of the Department that a statement was recorded from the detenu, wherein it has been clearly stated that all the foreign currencies were handed over to him by one Akbar to be handed over to one Santhosh. But, contrarily, it was found in the English version as if it was handed over to him by Akbar to be handed over to a North Indian. Thus, this discrepancy is https://hcservices.ecourts.gov.in/hcservices/ noticed. 13.Apart from that, this court is able to see force in the contention that when mahazars were prepared as to the foreign currencies that were recovered from him, all the particulars were mentioned and they were found to be different and discrepant from the materials placed before the Court. When discrepancies were found, a duty was cast upon the Detaining Authority to call for clarification before passing the order, but failed to do so. At this juncture, it is pertinent to point out that whenever law is so strict in all aspects and when materials are placed or translated versions are placed and when discrepancies are noticed, naturally one would expect that a duty was cast upon the Detaining Authority to call for clarification, but failed to do so. If all the materials were actually given to the detenu, the detenu could have filed an effective and meaningful representation. Thus, all would indicate the deprivation of valuable right of the detenu to make an effective representation. Thus, all the reasons as referred to above and recorded by the court, in the opinion of the Court, would be sufficient to quash the order under challenge. 14.Accordingly, the detention order is set aside. The Habeas Corpus petition is allowed. 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. vvk To 1.The Secretary to the Government, The State of Tamilnadu Public (SC) Dept., Fort St. George, Chennai-600 009. 2.The Secretary to the Government, The Union of India, Ministry of Finance, Dept. Of Revenue, Cofeposa Unit, New Delhi. 3.The Superintendent of Central Prison, Central Prison, https://hcservices.ecourts.gov.in/hcservices/ Madurai-20. 4.The joint Secretary to Government, Public(Law & Order) Fort St.George, chennai-9 5.The Public Prosecutor, High Court, Madras-104 6.The Sub Asst.Registrar, Administration Department(COFEPOSA) High Court, Madras. + 1 CC To Mr.S.Palanikumar Advocate SR NO.32145 H.C.P.NO.1718 OF 2007 ksk(co) pmk/4.7.08 https://hcservices.ecourts.gov.in/hcservices/