IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-12-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.No.271 of 2010 Seyed Ahamed Hamzeen .. Petitioner vs 1.The State of Tamil Nadu Rep. By the 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 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 calling for the records relating to the detention order in G.O.SR.1/07-4/2010, Public (SC) Department, dated 27.1.2010 passed by the first respondent, quashing the same and directing the respondents to produce the body of the person of the detenu Seyed Ahamed Hamzeen, son of Seyed Ahamed, now detained in Central Prison, Chennai as COFEPOSA detenu, before this Court and set him at liberty. For Petitioner : Mr.M.M.K.Alifudeen For Respondents : Mr.V.R.Balasubramaniam Additional Public Prosecutor for RR1 & 3 Mr.S.Udayakumar Sr. CGSC for R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was delivered by M.CHOCKALINGAM, J.) This petition challenges an order of detention made on 27.1.2010, by the first respondent under the provisions of COFEPOSA enactment. 2.The Court heard the learned Counsel for the petitioner and looked into all the materials available and in particular, the order under challenge. 3.The facts and circumstances which led the first respondent to make the order of detention under the provisions of the COFEPOSA can be stated as follows: (a) On 21.12.2009, the petitioner detenu arrived from Colombo at the Airport along with Sri Lankan passport No.N 2376567 dated 15.7.2009. At the time of interception, in view of the suspicion entertained that he might be carrying gold/contraband goods in his baggage or in person, by the officials attached to the Customs Department, he gave a reply in the negative. But the authorities were not satisfied. Then, in the presence of the witnesses, the hand baggage when examined, found to contain the used clothes. When there was a persistent and questioning, the detenu admitted that he kept concealed two packets containing gold bits in his rectum. He volunteered to eject the same, and accordingly, he ejected the said packets containing four rectangular gold bits which were actually kept in adhesive wrapped packets. (b) In the presence of the said witnesses, an approved goldsmith examined all the four gold bits and ascertained that they were of 24 carat purity, totally weighing 1177 grams and also valued at Rs.20,18,555/-. The said goldsmith issued a certificate dated 21.12.2009, to that effect. The witnesses who were present, have also attested the said certificate. (c) Since the detenu attempted to smuggle the goods without making a declaration to the customs and also without any permit or license, all the gold bits were seized under a mahazar to initiate action under the Customs Act 1962. The travel documents namely the passport and the customs declaration card of the detenu were seized under a cover of mahazar. The statement which was voluntarily made by the detenu, on the same day before the Customs Officer at Anna International Airport, was recorded wherein he narrated the sequence of events. Thereafter, he was shown arrest on 22.12.2009, and produced before the Additional Chief Metropolitan Magistrate (E.O.I), Egmore, and remanded to judicial custody till 6.1.2010. He has not made any complaints of ill-treatment against the officials. The period of remand was further extended upto 19.1.2010. (d) An intimation as to the fact of arrest and the production before the Additional Chief Metropolitan Magistrate and the judicial remand thereon was given to the wife of the detenu by a telegraphic message dated 22.12.2009. The Sri Lankan Deputy High Commissioner was also intimated by a letter dated 22.12.2009, about the arrest of the detenu and also the judicial remand. (e) The Senior Intelligence Officer, R&I Unit (Air), Chennai, has issued a Corrigendum dated 6.1.2010, stating that the value of https://hcservices.ecourts.gov.in/hcservices/ the contraband in the arrest memo may be read as Rs.20,18,555/- instead of Rs.20,18,155/-. The Corrigendum letter dated 6.1.2010, was also sent to the Sri Lankan Deputy High Commission, Chennai. (f) An application for bail was made on 24.12.2009, before the Court of the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, wherein he made a statement that the statement recorded from him was tainted with invalidating factors of threat, and thus he retracted the same. A counter petition was filed by the department. But the Court of Additional Chief Metropolitan Magistrate by an order dated 5.1.2010, granted bail with a condition to remain at Chennai and sign before the Customs Department daily at 10.30 A.M., until further orders. Accordingly, the detenu has been appearing and reporting to the customs authorities daily. (g) By attempting to smuggle the four numbers of gold bits as referred to above, by way of concealment in the rectum and by the non-declaration to the Customs, the detenu has rendered the same liable for confiscation and also committed offences punishable under Sections 132 and 135 of the Customs Act, 1962. (h) Under such circumstances, the Government taking into consideration the averments and contentions contained in the bail application, and also the circumstances put forth, was satisfied and has also recorded that he has actually indulged in smuggling of goods by contravening the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), and in order to prevent him from doing any such activities in future, it became necessary to pass an order of detention as one made in the instant case, and thus made the order which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the petitioner, the learned Counsel Mr.M.M.K.Alifudeen would submit that the order of detention came to be passed on 27.1.2010; but the detenu has already sent a letter on 12.1.2010, to the sponsoring authority through his Counsel stating that he was ready to pay the necessary fine and penalty for the goods seized from him, and he wanted to finish the case as soon as possible and return to his native land namely Sri Lanka; and that it was also made clear in the letter that he was a Sri Lankan Citizen, and his passport was being retained by the Additional Chief Metropolitan Magistrate's Court, E.O.I, and even though the bail was granted to him, he was forced to stay back in India to face the trial, and he has actually waived the show cause notice and sought for early disposal of the adjudication of the case in order to apply for compounding petition under Sec.137 of the Customs Act to get immunity from the prosecution. 5.Placing reliance on the letter dated 12.1.2010, the learned Counsel would further urge that the passport has been retained in the Court, and hence there was no possibility of the detenu moving out or involving in similar type of activities in future. 6.The learned Counsel would further add that when such a letter was actually sent on 12.1.2010, a pre-detention one, while making the order on 27.1.2010, even in the entire grounds of detention, it was not referred to; that it would be indicative of the fact that the https://hcservices.ecourts.gov.in/hcservices/ sponsoring authority did not place the letter before the detaining authority for its consideration; that the non-placement of the said letter dated 12.1.2010, put forth by the detenu, would clearly vitiate the detention order, and thus sufficient opportunity was not given to the detaining authority to record its subjective satisfaction proper, and on that ground, the order of detention has become defective. 7.Added further the learned Counsel that in the instant case, it is an admitted fact that when the detenu made an application for bail before the Additional Chief Metropolitan Magistrate, E.O.I., the Court while granting bail by an order dated 5.1.2010, has specifically stated that he should not move out of India and should report before the concerned authority every day, and his passport was actually retained in the custody of the Court; that while the matter stood thus, the authority has pointed out in its order that he would indulge in such activities in future; that while the passport is in the custody of the Court, he could not move out of the country, or there is no possibility of the detenu indulging in such activities in future, and thus in the face of the observation made by the detaining authority in the course of the order that he would indulge in such activities, it cannot be stated that the authority has arrived at the subjective satisfaction proper, and on this ground also, the order of detention is vitiated. 8.The learned Counsel in order to fortify his contentions, relied on the following decisions: (i) 1999 SUPREME COURT CASES (CRI) 1469 (AHAMED NASSAR V. STATE OF TAMIL NADU AND OTHERS); (ii) 2009 (4) MLJ 945 (ELIZABETH RANI V. STATE OF T.N.) and (iii) S.L.P.(CRL) No.6201 of 2009 (GIMIK PIOTR V. STATE OF T.N.) 9.The Court heard the learned Additional Public Prosecutor for the State and also the learned Senior Central Government Standing Counsel and paid its anxious consideration on the submissions made. 10.It is not in controversy that the petitioner detenu, when he arrived at the Airport along with the passport issued in his favour, on 21.12.2009, was intercepted by the authorities attached to the Customs, and on suspicion when the questions were raised whether he carried any goods either in his baggage or in the person and when it was answered in the negative, the authorities were not satisfied. At the last, he came forward with the reply that he has concealed two packets containing gold bits, in his rectum, and he ejected the same. The same was actually weighed in the presence of two witnesses by the goldsmith, and it was found to contain 1177 grams of four gold bits, and thus, after preparation of the mahazar for the recovery of the same which was one smuggled without declaration or permission or license and after recording the statement in the presence of witnesses, the proceedings were initiated under the provisions of the Customs Act by making arrest on 22.12.2009, and also production made before the Additional Chief Metropolitan Magistrate's Court, E.O.I, Egmore. It is also an admitted fact that he was remanded on the very day, and the remand was also being extended thereafter. Pending the https://hcservices.ecourts.gov.in/hcservices/ extension of remand, he made an application for bail. Despite the objection made by the State and the Central Governments, the bail was granted by that Court on 5.1.2010, imposing certain conditions therefor. On the above facts and circumstances, the authority namely the second respondent herein, thought that it was a fit case where an order of detention has got to be invoked under the provisions of the COFEPOSA in order to prevent him from indulging in such activities in future, and he has already involved in criminal activities, and in order to restrain him from doing any such activities in future, it became necessary. Under the circumstances, it came to be passed. 11.As regards the first ground put forth by the learned Counsel for the petitioner that there was a pre-detention letter dated 12.1.2010, it is pertinent to point out that the fact that the letter was sent by the detenu or received by the sponsoring authority is not denied. The letter sent by the detenu on 12.1.2010, through the Counsel inter alia reads as follows: "..... My client is a Sri lankan citizen and his entire family is at Sri lanka and he has only limited period of visa to stay in India. In the circumstances my client wants to finish the case as soon as possible in order to return to his mother country. My client is ready to pay the necessary fine and penalty for the gold seized from him. My client was granted bail by the remand court and appearing before the customs as directed by the court which granted the bail. My client being a Srilankan citizen and his passport being detained by the remand court, in the situation even though the bail has been granted to him, he is forced to stay back in India to face the pending case against him. Hence my client waives the show cause notice which is likely to be issued under sec.124 of the customs act and prays the authority to give an early opportunity for a personal hearing in his case, in order to dispose the adjudication case and to apply for compounding petition under sec.137 of the customs act to get immunity from prosecution. My client also submits that his passport has been detained in the court and hence there is no likelihood of my client moving out of the country and involving in any other similar type of offences on the absence of his passport in his hand. Being a Srilankan and that too without his passport my client could not even survive in India for a longer period of time. Hence it is humbly prayed before the adjudicating authority that the show cause notice in this case may be waived and the adjudicating proceedings may be initiated, personal hearing may be given to my client and the case may be disposed as early as possible and oblige." 12.The reading of the above would clearly indicate that it was in the form of a representation which was made on 12.1.2010, even https://hcservices.ecourts.gov.in/hcservices/ before the passing of the order of detention, wherein it has been clearly pointed out by the detenu through the Counsel that he is a native of Srilanka; that his family members are in Srilanka; that the visa has been given only only for a short period of stay in India; that under the circumstances, he is ready and willing to waive the show cause notice. Now he has been granted bail by the Court. His passport has already been seized by the authority and it is actually in the hands of the Court. Hence there was no likelihood of the detenu moving out or going out of the country to indulge in such activities. He also further sought that he was ready to waive the show cause notice, and the adjudication proceedings may be initiated. While such a representation was made which is a pre-detention representation, on 12.1.2010, in the considered opinion of the Court, a duty is cast upon the sponsoring authority to place the same before the detaining authority. Such a situation came up for consideration before the Apex Court in a case reported in 1999 SUPREME COURT CASES (CRI) 1469 (AHAMED NASSAR V. STATE OF TAMIL NADU AND OTHERS). On consideration of the factual position and in particular, in respect of a letter which was sent before the passing of the order and also the contention put forth by the State that there was no necessity for placing such letters since they did not make out any valid point in favour of the detenu, the Apex Court after considering the contentions put forth, has held in paragraph 18, 19 and 20 of the said decision as follows: "18.Submissions so far made are misconceived and hence we have no hesitation to reject the same. The question here is not any consideration of any representation of the detenu expeditiously by the detaining authority prior to his detention order but non-placement of the aforesaid two relevant letters before the detaining authority. What is relevant must be placed before the detaining authority for its consideration. 19.About sending the letter to the detaining authority it was submitted that the Secretariat to which the letter was sent was situated at a short distance and hence it should have been sent through a special messenger. Reply is that the same was despatched through speedpost which is the prescribed and acknowledged mode for sending such letters. It is true that in a given circumstance, where urgency is spelt out an officer may opt for such a recourse, but where despatch is through a prescribed mode, which is more expeditious than the normal mode, it cannot be attributed that the authorities were either callous or careless or casual in their dealing. 20.So far as the stand of the respondent with reference to the advocate's letter dated 19-4-1999 is concerned it cannot be held to be a justifiable stand. These technical objections must be shunned where a detenu is being dealt with under the preventive detention law. A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The https://hcservices.ecourts.gov.in/hcservices/ sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision." 13.From the very reading of the above, it would be quite clear that if any relevant document was not placed before the detaining authority which would reasonably affect the decision of the authority, then naturally the order of detention would become vitiated. This Court had an occasion to follow the above decision of the Apex Court in a case reported in 2009 (4) MLJ 945 (ELIZABETH RANI V. STATE OF T.N.). While there was a representation made even prior to the passing of the detention order, the sponsoring authority is duty bound to place the same before the detaining authority. Whether the averments in such a letter would be in favour of the detenu or otherwise, it was for the detaining authority to consider the same and take a decision and not for the sponsoring authority. After the receipt of the pre-detention representation, the sponsoring authority cannot be allowed to state that the averments made in such a representation would not make out any point in favour of the detenu since the order of detention has got to be passed not by the sponsoring authority, but by the detaining authority. After considering all the aspects of the matter, in short, it can be well stated that the non-placement of the pre-detention letter dated 12.1.2010, would, in the considered opinion of the Court, vitiate the order. 14.Apart from the above, in the considered opinion of the Court, the second ground put forth by the learned Counsel, has got to be equally applied to set aside the order. Admittedly, on interception, the detenu was questioned. Even according to the department, the gold bits were seized under a cover of mahazar in the presence of witnesses, and he has also made a statement, and the same was recorded. Thereafter, proceedings were initiated under the Customs Act, and he was arrested and also produced before the Additional Chief Metropolitan Magistrate, E.O.I., on 22.12.2009, and remanded, and it was periodically extended. Even as could be seen from the grounds of detention, the documents including the passport, were actually seized from him under a cover of mahazar. When he applied for bail pending the judicial remand, the said Court has granted bail on 5.1.2010, inter alia imposing certain conditions that he should appear before the authority every day. As could be seen from the order, there was no violation of the conditions, and he has been complying with the same. As far as the passport is concerned, it is an admitted position that it was actually seized, and the same should have been placed before the Court. Hence it should be in the custody of the Court. But, the authority in the course of the grounds of detention, has stated as follows: paragraph 5 reads as follows: "5.The State Government are satisfied that on the facts and material mentioned above, if you remain at large, you will indulge in such prejudicial activities again, eventhough your passport is retained in the Court. The State https://hcservices.ecourts.gov.in/hcservices/ Government are also satisfied that further recourse to normal criminal law would not have the desired effect of effectively preventing you from indulging in such activities. The State Government, therefore, consider that, it is necessary to detain you under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to prevent you from indulging in the smuggling of goods in future." 15.While it is an admitted position that the passport of the individual was actually retained in the Court, the observation made by the authority that he would indulge in such criminal activities in future, in the considered opinion of the Court, cannot but be without any basis or material. It is not the case of the State that he had already indulged in such activities either by illegal means or by fake passport. As could be seen, this was the only passport available in his hands, and it has also been seized by the authority and placed in the hands of the Court and retained. While the passport is in the custody of the Court, the observation made by the authority that he would indulge in such activities in future can be termed only as a piece of pure speculation. Commenting upon such a situation, the Supreme Court in S.L.P.(Crl.) No.6201/09 (Gimik Piotr Vs. State of Tamil Nadu and others) has held in paragraph 27 of the judgment as follows: "27.In our view, if that be the position, the order of preventive detention could have been passed under Section 3 (1)(ii) of COFEPOSA, as it authorizes the State Government to pass a preventive detention order to preventing him from abetting smuggling of goods. The argument advanced by the respondents is devoid of any logic. In the present case, the detention order is passed under Section 3(1)(i) of COFEPOSA. The customs department has retained the passport of the detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed. As observed by this Court in Rajesh Gulati's case, that the contention that despite the absence of a passport, the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation." 16.In the case on hand, it could be well stated that in the absence of any other material that he was already involved in any such activities in the past and in the absence of any document or any fake passport which was attempted to be used by him and in view of the fact that he was in custody of the only passport which was also seized by the authority under a cover of mahazar at the time of initiating proceedings and produced before the Court of law and retained by that Court, now the observation made by the authority that he would indulge in such activities in future is without any foundation at all. On that ground also, the order is vitiated. Therefore, this Court is of the view that the above grounds have got to be applied for setting aside the order of detention. https://hcservices.ecourts.gov.in/hcservices/ 17.Accordingly, this habeas corpus petition is allowed setting aside the order of detention passed by the first 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 nsv To: 1.The Secretary to Government Public (SC) Department Fort St. George Chennai 600 009. 2.The Secretary to 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. 5.The Senior Central Government Standing Counsel High Court, Madras.