IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18/02/2004 CORAM THE HONOURABLE MR.JUSTICE V.S.SIRPURKAR AND THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA H.C.P.No.832 of 2002 Mrs.Usha Kumar .. Petitioner -Vs- 1. The State of Tamil Nadu, rep. by its Secretary to Government, Public (SC) Department, Fort St.George, Chennai-9. 2. The Union of India, rep. by its Secretary, Ministry of Finance, Department of Revenue, Janapath Bhavan, B Wing, 6th Floor, Janapath, New Delhi-110 001. 3. The Superintendent of Prisons, Central Prisons, Chennai-600 003. .. Respondents For Petitioner: Mr.B.Kumar, SC for S.Rajnish Pathiyil For Respondents: Mr.A.Navaneetha Krishnan Addl.PP. Mrs.Vanathi Srinivasan,ACGSC-R2 PRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus for the relief as stated therein. :O R D E R F.M.IBRAHIM KALIFULLA, J. The wife of the detenu is the petitioner before us. The challenge is to the order of detention dated 28-3-2003 comprised in G.O.No.SR. I/238-4/2003 passed by the first respondent under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), herein after called 'the Act' with a view to prevent the detenu from abetting the smuggling of goods in future. 2. The brief facts which led to the passing of the order of detention will have to be stated for the proper disposal of this Writ Petition. 3. Admittedly, the detenu, namely, one Thiru K.Kumar was employed as a Manager in a concern called 'M/s.Sea Shore Logistics (P) Limited, owned by one Thiru Santana Meeran. On 13-12-2002, a container at the Madras Port was intercepted based on an information that the same was containing goods other than what has been mentioned in the Bill of Entry. The consignor of the goods was M/s.Trus Engineering and the consignment was booked to Singapore. In the Bill of Entry, the goods has been described as "Construction Conveyors Belt Parts". On 6-1-20 03, when the container was opened, it was found to have contained ' Red Sanders', which has been classified as 'Royal Trees' under the Forest Act which is a prohibited item. Subsequent investigation revealed that even the signatures of the Customs Authorities in the export documents were forged one. The Customs House Agent, namely, M/s.D.J. Modalities owned by one Thiru Subramaniam was stated to have given a statement that the documents were given by the detenu for processing. The detenu was summoned on 7-1-2003 and his statement was recorded on that date, as well as, on 8-1-2003 on which date, he was also arrested. It is relevant to state that in the statements, the detenu apart from other particulars, has specifically admitted to the effect that he was aware that the container contained 'Red Sanders', though he maintained that he was not aware of how the product was stuffed in the container. The detenu who was arrested on 8-1-2003, was remanded to judicial custody. 4. The above consignment apart, it is stated that based on yet another information gathered on 3-2-2003, it came to light that one other container in the name of M/s.Prime Stone Monuments had gone to Singapore which also contained 'Red Sanders', while as per the Bill of Entry, the goods were stated to be 'Granite Marbles and Monuments. The Customs Authorities arranged to send necessary message for the ship to bring back the consignment if it contained 'Red Sanders'. It is further stated that the consignment accordingly, was brought back to Chennai Port as the said container also contained 'Red Sanders'. As the detenu was involved in the shipment of the said container also, it is stated that on 5-2-2003, he was brought back on P.T.Warrant and arrested for the second case also. It is also on record that in the statement given by the detenu in respect of the second consignment recorded on 7th February, 2003, the very same admission to the effect that he was aware of the contents of the container to be Red Sanders came to be made. 5. It is in the above said background, the detention order came to be made on 28-3-2003. 6. Mr.B.Kumar, learned Senior counsel appearing for the petitioner before formulating his submissions, contended that the petitioner sent a telegram dated 7-1-2003 at about 10.00 p.m. to the Commissioner of Customs, Docks Intelligence Unit, Rajaji Salai, Chennai to the effect that her husband was taken by his Officers on 6-1-2003, that his whereabouts were not known and that he should be traced out. With reference to that, the learned Senior counsel wanted to point out that the said telegram was never placed before the Detaining Authority. The learned senior counsel further contended that in the representation, there was a specific request to consider the above said document, that the same was not done, that the above factors were specifically raised in the affidavit filed in support of the Writ Petition and that the same were not denied. That apart, the learned senior counsel contended that there was a bail application filed on behalf of the detenu on 24-3-2003 which was served on the counsel for the Customs Department on the same date who made an endorsement to the effect that he wanted to file a counter; that the said bail application was filed on 25-3-2003 into the Court which was posted for hearing on 26-3-200 3 and that the counsel for the Customs Department appeared and took time for counter. The learned senior counsel further pointed out that the said bail application was again posted on 28-3-2003 for written objections and that the counsel for the Customs Department wanted further time and the said application was again adjourned to 1-4-2003 finally, for the written objections. According to the learned senior counsel, the above said bail application was not placed before the Detaining Authority as could be seen from the grounds of the order of detention dated 28-3-2003. The learned senior counsel also contended that when in the representation, the above factum was referred to, in the rejection, the Department took the stand that the application was not received and therefore, the consideration of it was not required. 7. In the above said background, the learned senior counsel raised as many as four contentions, namely, that the representation of the detenu was not properly considered inasmuch as, the above two vital documents were withheld by the Department; that the non-placement of petitioner's telegram before the Detaining Authority amounted to withholding a vital information vitiating the order of detention; that the detention order does not show that the Detaining Authority was alive to the factum of retraction stated in the earlier bail applications dated 13-1-2003 and 10-3-2003 and therefore, on the ground of nonapplication of mind, the order of detention should be held to be vitiated; and that even though the detenu was proceeded against in connection with two cases, the Detaining Authority did seem to have been aware of the said fact, as could be seen from the grounds of detention. 8. As against the above said contentions, the learned Addl. Public Prosecutor, appearing on behalf of the first respondent, contended that the telegram was replied by the Sponsoring Authority himself on 14-12-2003 and inasmuch as, the telegram never suggested illegal custody, the non-reference to the same in the order of detention was of no consequence. According to the learned Addl.Public Prosecutor, the telegram was totally irrelevant for consideration as far as the present order of detention was concerned. He further contended that when the telegram was not followed by any representation, there was no legal requirement to refer to the same in the detention order and in support of his submission, he relied upon the Judgment of the Hon'ble Supreme Court reported in 'AIR 1993 SC 2633 (District Magistrate and Another, G.Jothi Sankar with District Magistrate and Another VERSUS R.Ramanathan)'. The learned Addl.Public Prosecutor would contend that since it was the second bail application, there was no need to consider the same as there was no vital factor contained therein in order to state that the non-consideration of the same would vitiate the order of detention. For that proposition, he relied upon '2002 (6) SCC 7 35 (K.Varadharaj VERSUS State of Tamil Nadu and another)'. As regards the contention that the Detaining Authority failed to refer to the retraction aspect contained in the bail applications dated 13-1-2003 and 10-2-2003, the learned Addl.Public Prosecutor would contend that paragraph (lvi) was the answer inasmuch as, the specific expressions contained in the said paragraph would go to show that every aspect of the detenu's claim in the bail application was considered and rejected while clamping the order of detention. As regards the contention that there was no proper consideration in the rejection of the representation, the learned Addl.Public Prosecutor by relying upon '1991 SC 574 (K.M.Abdulla Kunhi and B.L.Abdul Khader VERSUS Union of India and Others)' and also the subsequent judgments reported in '2003(7) Supreme 370 (Union of India VERSUS Paul Manickam)' and '2001(2) SC 145 ( R.Keshava VERSUS M.B.Prakash and Others)', contended that in the light of the law laid down in the above referred to judgments, the contention regarding the rejection of the representation on the ground of improper consideration cannot be accepted. 9. Having heard the learned counsel for the petitioner and the learned Addl.Public Prosecutor, we are of the considered view that none of the grounds urged on behalf of the petitioner would vitiate the order of detention. First and foremost, it was contended that there was no effective consideration of the representation of the petitioner. The contention was that in the representation, two vital factors were referred to, namely, that the detenu was taken into custody by the Customs Authorities as early as on 6-1-2003, while the arrest was shown on 8-1-2003 and that in the bail application filed before the Principal Judge, City Civil Court on 24-3-2003, it was specifically contended that the statement obtained from him was under coercion and therefore, reliance upon the same which formed the basis for the detention order was not proper. It was therefore, contended that if the above said factors had been properly considered, that would have persuaded the Detaining Authority to revoke the order of detention and that on the other hand, a perusal of the rejection letter dated 2-5-20 03 only disclose that there was no consideration at all of the vital factors raised by the detenu. In support of the above said submission, reliance was placed upon the Judgment of the Hon'ble Supreme Court reported in 'AIR 1997 SC 775 (John Martin VERSUS State of West Bengal)', in particular paragraph 3, wherein, the Hon'ble Supreme Court held to the following effect:- "..... we must therefore, hold that under Section 8(1) of the Act, it is the appropriate Government that is required to consider the representation of the detenu. This, however, does not mean that the appropriate Government can reject the representation of the detenu in a casual or mechanical manner. The appropriate Government must bring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by this Court in Haradhan Saha's case (reported in AIR 1974 SC 2154), "a real and proper consideration" of the representation by the appropriate Government. We cannot over emphasise the need for the closest and most zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified." (Underlining is ours) 10. In fact, Mr.B.Kumar, learned senior counsel laid stress on the above highlighted portion of the above referred to judgment and contended that there should have been a 'deeper consideration' of the representation by the appropriate Government. We are unable to accept the said contention so raised by the learned Senior counsel. On a reading of the above said passage of the decision of the Hon'ble Supreme Court, it can only be deduced that there should be a consideration of the representation with an unbiased mind. The highlighted portion of the extraction, i.e. "...we can not over-emphasise the need for the closest and most zealous scrutiny of the representation..." only convey the meaning that the consideration should be fair and proper and there is no scope to suggest that appropriate Government should be over zealous while scrutinising the representation. The contention put forward on behalf of the petitioner being contrary to the above, the same cannot be accepted. For the very same contention, reliance was also placed upon the unreported judgment of this Court dated 2-8-1993 in 'HCP No.138 of 1993 (R.Saroja VERSUS State of Tamil Nadu, rep. by its Joint Secretary to Government, Public (SC) Department, Fort St. George, Chennai-9)', wherein the Division Bench of this Court held as under in para 6: "... The Detaining Authority had acted on the basis of the information furnished by the Sponsoring Authority, we cannot overlook that the very system contemplated under law, puts the responsibility on everyone of these authorities at various stages, so that, the Constitutional right of the detenu does not get thwarted. If there is negligence or callousness on the part of any one authority, that will certainly enure in favour of the detenu. If the sponsoring authority had not furnished correct information to the Detaining Authority, either due to negligence or with an ulterior purpose deliberately, it can make no difference, for ultimately the sufferer is the detenu. It is settled law that consideration and representation must be effective and purposeful. If the Detaining Authority had the benefit of the retraction letter sent by the detenu, the manner in which, the representation might have been disposed of may still loom large. On that single ground of improper, reckless rejection of representation, the detenu bound to succeed. ..." (Underling is ours) 11. In the first place, that was a case where the so-called retraction letter dated 19-11-1992 was admittedly received by the Sponsoring Authority on 23-11-1992. It was further admitted that the Sponsoring Authority informed the Detaining Authority that no such retraction had been received. It was on the above stated circumstances, when in the representation, the above said factor was brought out by the detenu, the Division Bench of this Court was pleased to hold that there was improper and reckless rejection of the representation. We are unable to apply the above said judgment of the Division Bench to the facts of the case on hand which differs in all respects. In the case on hand, two circumstances were referred to, viz., the telegram of the detenu's wife dated 7-1-2003; and a reference to the retraction made in the bail application dated 24-3-2003 before the Principal Judge, City Civil Court which was raised in the representation of the detenu. As far as the telegram of the detenu's wife is concerned, no where it was claimed that the detenu was under illegal custody. As far as the retraction is concerned, even if there was a mistake in the rejection letter as regards the knowledge of the filing of the bail application on the relevant date, the fact remains that even at the time when the detention order came to be passed, the very same circumstance, namely, the retraction of the earlier statement of the detenu was very well referred to by the detenu in the bail applications dated 13 -1-2003 and 10-2-2003 which was duly considered by the Detaining Authority as could be seen from paragraph (lvi) of the order of detention. Therefore, when there was no new vital factors stated in the representation, it cannot be held that the rejection of the representation would in any way affect the order of detention. 12. Reliance was also placed upon the judgment reported in '1998 MLJ (Crl.) 454 (Mrs.Padmini VERSUS The State of Tamil Nadu and Another)'. That was a case where the mother of the detenus had earlier represented that her sons were likely to be booked under the Prevention of Terrorists Act as 'Goondas'. The said representation was dated 4-2-1997. The detention order was passed on 14-2-1997. In the detention order, while referring to the representation of the mother dated 4-2-1997, the Detaining Authority merely stated in one sentence that ' he was also aware with the contents of the petition were not true'. The Division Bench, in which, one of us (Justice V.S.Sirpurkar, J.) was a party, was pleased to hold that prior to the said representation dated 4-2-1997, there was an earlier H.C.P.No.33 of 1997 filed on 7-1-1997, in which notice came to be ordered by the Division Bench of this Court, and there was also an allegation that two cases which were stated to have been booked against those detenus were false cases, in which they were remanded. It was in the above stated circumstances, the Division Bench was pleased to hold that the failure of the Detaining Authority in not referring to the various vital factors while holding that the contents of the representation of the mother were not true would amount to non-application of mind which vitiated the order of detention. Such is not the case in the case on hand. Therefore, the said judgment cannot also be applied. Yet another judgment relied upon (viz.,) the one reported in '1991 Crl.L.J.2387 (Smt.Deepa Ramesh Pai VERSUS The Union of India and Others)' also differs on facts in very many respects and therefore, the same also does not support the case of the petitioner. 13. On the other hand, the Constitutional Bench judgment of the Hon'ble Supreme Court reported in '1991 SC 574 (K.M.Abdulla Kunhi and B.L.Abdul Khader VERSUS Union of India and Others)' would be more apposite in the facts and circumstances of the case. In para 19, the Hon'ble Supreme Court stated the legal position, which is to the following effect: "19. There is no constitutional mandate under Cl.(5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government with out delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government's consideration of the representation is for a different purpose, namely, to find out whether the detention is in conformity with the power under the statute. This has been explained in Haradhan Saha case, AIR 1974 SC 2154, where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government." (Emphasis added) We therefore, do not find any substance in this ground to interfere with the order of detention. 14. The next contention was that non-placement of telegram sent by the detenu's wife to the Customs Authorities before the Detaining Authority would amount to withholding a vital information which vitiated the order of detention. The contention was that in the telegram sent at 10.00 pm on 7-1-2003, which was received at 11.05 pm on the same date, it was communicated that the detenu was taken by the Docks Intelligence Unit of the Customs Authorities on 6-1-2003 at about 10.00 am and that he was kept in their confinement. It was further claimed that he should be released immediately. It was contended that the detenu was produced before the Judicial Magistrate only at 9.30 pm on 8-1-2003. It was then pointed out that in the detention order in para (ix), it is stated that the detenu appeared before the Docks Intelligence Unit Authorities in response to the summons dated 7-1-2003 and gave a voluntary statement. According to the learned senior counsel, if the telegram had been placed before the Detaining Authority, it would have disclosed that the detenu was already under the illegal custody of the DIU and if the said factor had been considered in the light of the stand of the detenu in the bail application dated 13-1-2003 where the statement obtained on 7-1-2003 came to be retracted, there was every scope for the Detaining Authority to have taken a different view. It was therefore, contended that non-placement of the telegram vitiated the order of detention. Reliance was also placed upon '1999 (8) JT 252 (Ahamed Nassar VERSUS The State of Tamil Nadu and Others)', wherein, the Hon'ble Supreme Court ruled that every conceivable material which is relevant and vital which may have bearing on the issue should be placed before the Detaining Authority and the Sponsoring Authority should not keep it back based on his interpretation that it would not be of any help to a prospective detenu. It was further held that a detention order gets vitiated if any relevant document was not placed before the Detaining Authority which reasonably could affect his decision. 15. Keeping the above said principle in mind, when the contention of the learned senior counsel for the petitioner is analysed, we find that in the telegram, there is no allegation of illegal custody of the detenu. In fact, the summoning of the detenu on 7-1-2003 is clearly admitted. The statement given by the detenu is also not in controversy. The fact that the detenu admitted to the effect that the consignment contained 'Red Sanders' is also not in dispute. In such a situation, for the first time, the retraction was stated to have been made in the bail application dated 13-1-2003. Subsequently, it was reiterated in the second bail application dated 10-3-2003. The above referred to two bail applications were before the Detaining Authority. According to the Addl.Public Prosecutor in paragraph (lvi), the contents of the bail application and the stand of the detenu on the statement given by him on 7-1-2003 were duly considered and came to be rejected as baseless and as an after-thought. When that being the real consideration of the relevant material and when the telegram of the detenu's wife dated 7-1-2003 did not contain any relevant factors, we are unable to apply the ratio of the above said decision to the case on hand in order to hold that the non-placement of the telegram before the Detaining Authority would vitiate the order of detention. Therefore, the said contention of the petitioner also does not merit any consideration. 16. The next contention of the learned Senior counsel was that in the bail applications dated 13-1-2003 and 10-3-2003, the detenu specifically pleaded about his retraction of the admission contained in his statement dated 7-1-2003 and that though the Detaining Authority referred to the bail applications in paragraph (xxiii) and (lii), there was no specific reference to the aspect of retraction stated in the said bail applications. As regards the contents found in para (lvi) of the order of detention, the learned Senior counsel would contend that those expressions can have no reference to the retraction specifically pleaded by the detenu in the bail applications. 17. To consider the above submissions of the learned senior counsel, we feel it appropriate to extract para (lvi) of the order of detention, which is to the following effect:- "(lvi). The Government have taken into consideration the averments/ contentions/allegations contained in the bail petition but from the materials placed on record, the Government have satisfied that the said allegations are baseless, afterthought and devoid of merit and hence the Government reject the same. The Government are also satisfied that the nexus between the date of incident and the passing of this detention order as well as as the object of your detention has been maintained." (Underlining is ours) 18. In paragraphs (xiii) and (lii) of the order of detention, the bail applications dated 13-1-203 and 10-3-2003, as well as, the respective