Madras High Court
Shajira Parveen W/O Abubucker vs The State Of Tamilnadu Rep. By The on 24 September, 2010
Bench: M.Chockalingam, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.09.2010
Coram:
The Honble Mr. Justice M.CHOCKALINGAM
and
The Honble Mr.Justice M.SATHYANARAYANAN
Habeas Corpus Petition No.2228 of 2009
Shajira Parveen W/o Abubucker. ... Petitioner
Versus
1. The State of Tamilnadu rep. by the
Secretary to the Government,
Public (SC) Department,
Fort St. George, Chennai-600 009.
2. The Union of India rep. 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 Writ of Habeas Corpus to call for the records relating to the detention order in G.O.No.S.R.1/669-5/2009 dated 19.11.2009 passed by the first Respondent, detaining the detenu, namely Abdul Sathik, aged about 25 years, S/o Kattubava, under Section 3(1)(ii) of the COFEPOSA Act, quash the same and direct the Respondents to produce the detenu, who is now confined in Central Prison, Puzhal, Chennai, before this Court and set him at liberty.
For Petitioner .. Mr.S.Palanikumar
For Respondents .. Mr.Babu Muthu Meeran,
Addl.Public Prosecutor, for R1 & 3
Mr.S.Udayakumar, SCGSC for R2.
O R D E R
M.SATHYANARAYANAN, J The petitioner is the sister of the detenu namely Abdul Sathik S/o Kattubava, aged about 29 years and challenging the vires of the order of detention dated 19.11.2009 passed by the first Respondent, branding him as a Smuggler and detaining him under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA), has filed this Habeas Corpus Petition.
2. The facts necessary for the disposal of this Habeas Corpus Petition are as follows:-
The officials attached to the Directorate of Revenue Intelligence (DRI) on the basis of the specific intelligence to the effect that the detenu who is arriving by Jet Airways Flight No.9W 0015/8.10.09, would attempt to smuggle electronic goods, in trade quantity and items of gold jewellery in the guise of personal baggage and attempt to clear the same without declaring to the Customs authorities or paying appropriate duty, had intercepted the detenu on his arrival at Chennai Airport. The detenu has produced his passport, boarding card of his flight, counterfoil for baggage tags and also Customs declaration form wherein the table number was mentioned as 11.
3. The detenu was also found carrying two hand baggage namely a Campro black coloured shoulder bag and a plastic carry bag with Panasonic markings. As per the baggage declaration given by the detenu, he declared the value of the goods brought by him at Rs.70,000/-. on the request made by DRI, the detenu also identified and produced his checked in baggage which are two in numbers and one black umprella. Search was made in respect of the hand baggage and the checked in baggage and it was found that the detenu was carrying electronic goods in trade quantity and gold jewellery. A Mahazar to the contents of the same was also prepared on 8.10.2009. The officials of the DRI, Chennai, arrived at the value of the electronic goods by by adopting the purchase price in Singapore Dollars reflected in the invoices viz., M/s. Venki Enterprises Private Limited, Singapore and M/s. Pawa Brothers Trading Private Limited, Singapore, both dated 7.10.2009. Wherever prices of electronic goods mentioned in the Annexure to the mahazar were not available, the prices were determined by referring to OS registers with the assistance of Customs Officers and by downloading the value/price from the internet after giving due allowance towards abatement for Customs duty and profit margin. The detenu was also shown a range of prices downloaded from the internet and the officials of DRI, Chennai, had adopted least of the said range of prices so available and the detenu agreed to the same. The gold jewelleries found in three paper packets found in possession of the detenu, were also valued by one Thiru.B.Mohan Achari, Government of India Certified Gems Consultant (Gold Smith) and he certified the gold jewels to be of the purity of 22 Carat and weighing about 329.460 grams. The goods in question as well as the travel documents were seized under the cover of mahazar dated 8.10.2009 in the presence of the witnesses. On search of the detenu, nothing incriminating was found and the personal belongings to the detenu were returned to the detenu.
4. The DRI officials had obtained statement from The detenu also gave a statement dated 8.10.2009, under Section 108 of the Customs Act 1962, before the Senior Intelligence Officer of DRI, Chennai, wherein he has stated that he obtained his passport in the year 2001 and so far travelled to Singapore 30 times and Malaysia two times and that on each occasion, when the detenu went to Singapore, he used to carry 40 kgs of flowers from India and on each occasion, he brought goods from one Raja of Singapore and handed over the goods to the persons identified by the detenu at Chennai Airport and received the monetary consideration of Rs.2,500/-. The detenu thus brought the goods given by Raja at Singapore to India on 30 occasions. So far as the present incident is concerned, the detenu will be approached by one Mydeen at Chennai Airport and the goods in question to be handed over to him and he in turn, will pay the monetary consideration to the detenu.
5. The detenu was arrested under Section 104 of the Customs Act, 1962 on 8.10.2009 and a telegram was also sent on the same day to the father of the detnu and it was not delivered for the reason "the addressee unknown". The detenu was produced before the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai on 9.10.2009 for the purpose of remand and at that time, the detenu has not made any complaint with regard to the torture or ill-treatment at the hands of the DRI officials. On remand, the detenu was sent to judicial custody till 23.10.2009.
6. In so far as the adjudication proceedings are concerned, order dated 18.2.2009 in O.S.No.322/2009 was passed by the Assistant Commissioner (Airport) and challenging the legality of the said adjudication, an appeal was also prepared before the Commissioner (Appeals) and an order was also passed on 29.4.2009. As per the adjudication, the detenu was imposed with redemption fine of Rs.1,25,000/- and personal penalty of Rs.30,000/-. The redemption find was reduced to Rs.1,00,000/- by the Appellate Authority.
7. The detenu was also filed an application for bail before the lower Court wherein a petition was also filed on 12.10.2009 wherein the detenu has retracted his statement given on 8.10.2009. Counter statement was also filed opposing the bail application. The jurisdictional Court vide order dated 24.10.2009, has enlarged the detenu on bail subject to certain conditions.
8. The petitioner herein on behalf of the detenu, has submitted her representation dated 22.10.2009 addressed to the Honble Minister for Law, Government of Tamil Nadu and the same was forwarded to the DRI and after obtaining their opinion, suitable reply was sent on 19.11.2009, rejecting the representation. It is the specific case of the Detaining Authority that the detenu as a non-bonafide passenger, and therefore, the baggage brought by him amounts to prohibited goods under Section 11 of the Customs Act, 1962 and as per Section 77 of the Customs Act, 1962, the owner of the baggage shall, for the purpose of clearing it, make a declaration of its contents to the proper officer and in the absence of full and correct declaration, the goods are liable for confiscation under Section 111 of the Customs Act, 1962 and it is also subject to penal action under Section 104 and punishment under Section 135 of the said Act. Further, as per Section 2(39) of the Customs Act 1962, such goods are also liable for confiscation as it amounts to smuggling.
9. As per Customs Notification No.31/2003 dated 1.3.2003 (as amended), a passenger of Indian origin or a passenger holding a valid passport of not less than six months stay abroad, is eligible to import gold in any form including tola bars and ornaments, but excluding ornaments studded with stones or pearls on payment of Customs duty at the appropriate rate.
10. As the detenu had made 30 trips to Singapore and two trips to Malaysia and acted as a paid Carrier for consideration and that he has also misdeclared the value of the electronic goods as Rs.70,000/- and also failed to declare the value of the gold jewellery brought by him, the said acts on the part of the detenu amounts to smuggling which was organized by Raja at Singapore and abetted by the detenu.
11. The total value of the seized electronic goods was arrived at Rs.6,82,156/- (CIF) and the market value of the seized gold jewellery was arrived at Rs.4,88,259/- in all aggregating a sum of Rs.11,70,415/-. The Government after taking into consideration the said material, had satisfied that the detenu had indulged in abetting smuggling of goods and also satisfied that on facts and material placed before it, if the detenu remained at large, he will indulge in such prejudicial activities again and hence felt that the detenu is to be detained under Section 3(1)(ii) of the COFEPOSA Act. Accordingly, passed an order of detention.
12. In the affidavit filed in support of this petition, it is submitted that the order of detention came to be passed against the brother of the petitioner without application of mind. It is further alleged that the retraction of the statement given on 8.10.2009 in the bail application has not been taken into consideration by the Detaining Authority and also the subsequent order modifying the bail conditions. It is further submitted that the contents of representation have not been taken into consideration at all and the relied upon documents viz., Notification No.31/2003 dated 1.3.2003 as well as the price downloaded from the internet have not been furnished to the detenu in spite of representation and non-furnishing of the same, had deprived of the detenu from making his effective representation for revocation of the order of detention.
13. It is further contended that by virtue of the seizure of passport, it is not possible for the detenu to travel abroad to indulge in such activities which are prejudicial to the economy of the country and the said aspect has not at all been taken into consideration by the Detaining Authority before clamping the order of detention. Therefore, the petitioner prayed for the quashment of the impugned order of detention.
14. On behalf of the first respondent a detailed counter affidavit has been filed contending interalia that admittedly, the detenu travelled to Singapore about 30 times and Malaysia about two times and acted as a Carrier for carrying electronic items and gold jewelleries for monetary consideration and at the time of his arrival to Chennai on 8.10.2009, he was searched after complying with the formalities and in his baggage contents, the detenu has declared the value of the goods as Rs.70,000/-. However, on examination of hand baggage and checked in baggage, he was carrying electronic goods to the value of Rs.6,82,156/- and the gold jewellery to the value of Rs.4,88,259/- in all aggregating a sum of Rs.11,70,415/-. The detenu was also shown the invoice issued by the two firms at Singapore viz., M/s. Venki Enterprises Private Limited, Singapore and M/s. Pawa Brothers Trading Private Limited, Singapore and also the price list downloaded from the internet and he has also agreed to the same and then only the valuation of the same was done.
15. As regards the non-consideration of the retraction statement given in the bail application, it is contended by the first respondent that the said aspect has not been dealt with by the jurisdictional Magistrate while enlarging the detenu on bail and therefore, the non-consideration of the retraction statement cannot be termed as fatal.
16. As regards the disposal of the representation without application of mind, the first Respondent has contended that all the points raised in the representations were dealt with in detail and the representations were disposed of as expeditiously as possible by giving proper reply to the detenu. Therefore, the first Respondent has prayed for the dismissal of the petition.
17. On behalf of the second respondent counter affidavit has been filed wherein it has been stated that the representations forwarded to them by the first respondent were dealt with expeditiously and disposed of in accordance with law after due and proper application of mind.
18. Heard the submissions of Mr.S.Palanikumar, learned counsel appearing for the petitioner and Mr.Babu Muthu Meeran, learned Additional Public Prosecutor and Mr.S.Udayakumar, learned Senior Central Government Standing Counsel for the second respondent. This Court has also perused the materials available on record as well as the original records.
19. The learned counsel appearing for the petitioner apart from making his submissions based on the grounds raised in this petition, would further submit that the issues involved in this Habeas Corpus Petition are squarely covered by the earlier decision of this Court vide order dated 3.9.2010 made in H.C.P.No.2227 of 2009- Abdul Rahman vs. The State of Tamil Nadu and two others.
20. Per contra, the learned Additional Public Prosecutor appearing for the respondents 1 and 3 would submit that in the case on hand the detenu went to Singapore for about 30 times and went to Malaysia for about two times and he acted as a Carrier for monetary consideration and also misdeclared the value of the electronic goods and non-declared the value of the gold newellery and therefore, the order of detention was rightly clamped on him.
21. Mr.S.Udayakumar, learned Senior Central Government Standing Counsel appearing for the second respondent has adopted the submissions made by the learned Additional Public Prosecutor and would further submit that the representations forwarded to the second respondent have been dealt with in accordance with law and disposed of the same as expeditiously as possible and hence prayed for the dismissal of this petition.
22. This Court has carefully considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record in the form of typed set of documents and the original records and other documents placed before it.
23. Though number of points are urged on behalf of the petitioner, the order of detention is liable to be quashed for the following reasons:-
24. The mother of the detenu, has submitted a representation dated 2.12.2009 to the first respondent as well as to the second respondent stating interalia that no particulars as to the basis on which the value of the goods brought in by the detenu have been arrived at and the same was rejected by the second respondent vide Memo dated 16.12.2009 stating that the said representation has been carefully considered by the Special Secretary and Director General, Central Economic Intelligence Bureau, Ministry of Finance Department of Revenue, New Delhi. The first respondent vide letter dated 18.12.2009, has disposed of the said representation stating that all the relied upon documents for clamping the order of detention have been furnished to the detenu. The detenu himself has submitted a representation dated 27.1.2010 to the Advisory Board as well as to the second respondent specifically pointing out the basis on which the valuation has been done and the relevant particulars of the same have not been furnished to him. In paragraph 9 of his representation the detenu would state that for arriving at the value, DRI has placed reliance upon the number of documents and the copies of the same have not been furnished to him and consequently, he is not in a position to make an effective representation. Paragraph No.10 of his representation the detenu has specifically asked for copies of those documents. The detenu has also specifically requested to furnish a copy of Customs Notification No.31/2003 dated 1.3.2003(as amended). The said representation was disposed of by the first respondent vide its letter dated 15.2.2010.
25. A perusal of the same would disclose that the invoices as per O.S. Register and the valuation given by the certified Gem Expert have been furnished to him in the booklet and as regards the price downloaded from the internet it has been stated in the reply that those documents were shown to the detenu and he has also agreed to the value. However, the fact remains that the price downloaded from the internet were also relied on by the Detaining Authority to arrive at the subjective satisfaction as to the real and imminent possibility of the detenu indulging in similar kind of activities in future. The said documents in spite of request, have not been furnished to the detenu.
26. The Customs Notification No.31/2003 dated 1.3.2003 (as amended) have not been furnished to the detenu in spite of his specific request to supply the same for making effective representation.
27. The effect of non-furnishing of relied upon documents in spite of the request made by the detenu came for consideration before a Division Bench of this Court in a decision reported in (2007) 2 MLJ (Cri.) 1467-Dhanushu @ Vijay vs. State of Tamil Nadu. In paragraph 19 and 20 it has been held as follows:-
"A specific ground has been taken that though the notification was heavily relied upon by the detaining authority, the detaining authority had failed to supply the same despite the request made in the representation. It appears that such notification was supplied only on 2.4.2007, by which date the Advisory Board has already met.
Copies of the documents, which are relied upon by the detaining authority, should have been given along with the grounds of detention. Even assuming that in the present case there may be some dispute as to whether notification was merely a referred to document or relied upon document, when the detenu specifically request for copy of the notification, such request should have been complied with as expeditiously as possible to enable the detenu to make effective representation. The belated supply of copies serves no purpose as the chance of main effective representation before the Advisory Board and the State is over for all practical purposes. Therefore, it can be said that the order of detention got vitiated on account of such belated supply of documents."
28. Similar view has been taken in an unreported decision dated 9.3.2007 made in H.C.P.No.1118 of 2006 - Govindan Rajagopal vs. The State of Tamil Nadu and two others and also another unreported decision dated 19.1.2010 made in H.C.P.Nos.1040 and 1047 of 2009 - M.Bhyavana vs. The State of Tamil Nadu and two others and K.Anandan vs. The State of Tamil Nadu and two others.
29. In the decision reported in 2004 SCC (Cri) page 618 - A.C. Razia v. Govt. of Kerala, while considering the power of the Central Government in disposing of the representation made by the detenu, it has been concluded as follows:-
"22. .....The exercise of the power under Section 11 should not be a mere formality or a farce. Care and vigilance should inform the action of the Government while discharging its supervisory responsibility. As observed in Haradhan Saha case(1974 SCC (Crl.) 816) and reiterated in K.M. Abdulla Kunhi case(1991 SCC (Crl.) 613, what is required is real and proper consideration. The following observations in Abdul Karim (1969 (1) SCC 433) are quite apposite in this context.
But it is a necessary implication of the language of Article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality.
23. The same proposition has been highlighted by Rajendra Babu, J. by observing that there should be full and independent application of mind. Even in the dissent judgment, Hon'ble Mr.Justice S.B.SINHA has accepted the above proposition and concluded.
50. It is, therefore, trite that all facts which are relevant for the purpose of giving relief to the detenu are required to be considered. In that view of the matter, the quality of an order passed by the Central Government in terms of Section 11(1)(b) of the Act cannot be different from that of the authority which had passed the order."
30. In the considered opinion of the Court, non-furnishing of the relied upon documents in spite of the request made by the detenu, has deprived the detenu from making an effective representation for revoking the order of detention.
31. The consideration of the representation submitted by the detenu is not a mere formality, and the same has to be disposed of with an unbiased mind and it requires a careful and thorough scrutiny for the purpose of deciding the justifiability of the predetention order.
32. The next ground of challenge is of the impounding of the passport and the likelihood of the detenu indulging in similar kind of activities. Admittedly, on 8.10.2009, at the time of search and seizure all the travel documents from the detenu were seized including passport. A perusal of the mahazar dated 8.10.2009 drawn at the arrival of the Anna International Airport, Chennai which is available at pages 1 to 56 of the booklet would disclose that the passport of the detenu has been seized and it was also submitted before the jurisdictional Magistrate. The Jurisdictional Magistrate while remanding the detenu on 9.10.2009, has also perused the remand application mahazar and its endorsement original passport, travel documents, statement of the accused and other documents and taking note of the fact that no complaint has been made by the detenu, has remanded him to judicial custody till 23.10.2009.
33 Subsequently, the detenu filed application for bail retracting his statement given by him on 8.10.2009. The learned Magistrate while enlarging the detenu on bail, vide order dated 12.10.2009, has taken into consideration the period of incarceration undergone by the detenu and recording of the statement and completion of the material part of investigation, has enlarged him on bail. Admittedly, the original passport of the detenu is still in the custody of the concerned Court.
34 The effect of seizure of the passport came up for consideration before this Court in H.C.P. No.735 of 2002-Izadeen vs. The State of Tamil Nadu and two others, and this Court vide order dated 3.12.2002, has held as follows:-
"Therefore, the fact of the impounding of the passport or the detenu deprived of the passport was undoubtedly a very relevant fact. What we have before us is, only the fact that the passport was retained in the judicial custody. That in our opinion, would not be taking into consideration the result of the deprivation of the detenu of his passport. In our opinion, the concerned authority should have been more elaborate and should have shown that it had applied its mind to this particular circumstance. When we see paragraphs 5 and 6 on page 7 of the detention order, all that is stated is that though the petitioner was in custody, he was likely to be released on bail and if he was released on bail, he was bound to indulge in such activities and that further recourse to normal criminal law would not have the desired effect to effectively prevent him from carrying on with these activities. Therefore, the most relevant fact that weighed with the detaining authority to take the decision to detain was the likelihood of the petitioner to be released on bail. At the same time, when the backdrop of the detention was a patternised smuggling activity and the deprivation of the passport was bound to put a complete stop to that pattern, it was imperative, in our opinion, for the detaining authority to take that fact also into consideration and there is nothing in the grounds that the fact has been taken into consideration. Therefore, in our opinion, in the facts of this case4, the retaining of the passport was of paramount importance and it was liable to be taken into consideration and not having taken that into consideration, the detaining authority has failed to take into consideration the very material fact, which has affected his thinking process and ultimately the decision. We hasten to add that we should not be taken to mean that in all the cases where the passport is impounded, the mentioning about the same is a must. We are particularly taking this view, in view of the patternised smuggling activity in this case. Even a cursory look at the grounds would suggest that the detention order suffers and is vitiated."
35 Though in the counter affidavit a stand has been taken that the possibility of the detenu escaping from the country by illegal channels cannot be ruled out, the fact remains, the material document which enables a person of Indian Origin to travel abroad namely passport, has been has been seized and in the custody of the Court and hence, it will not be possible for the detenu in the present case, to go abroad by using the same and indulge in activities which are prejudicial to the economy of the country. A perusal of the detention order also would disclose that the said vital aspect has not been taken into consideration by the Detaining Authority while clamping an order of detention. In the considered opinion of the Court, the non-consideration of the said vital aspect would indicate non-application of mind on the part of the Detaining Authority and no clarification has also been obtained from the Sponsoring Authority. Hence, on this ground also, the order of detention is vitiated.
36 That apart, this Court in its earlier decision dated 3.9.2010 made in H.C.P.No.2227 of 2009 (cited supra), had taken similar view and the facts and circumstances projected in this case, are almost identical to that of the said decision.
37 Hence, for the said reasons, the impugned order of detention is liable to be quashed.
38 In the result, the HCP is allowed and the order of detention dated dated 19.11.2009 passed by the first Respondent, detaining the detenu, namely Abdul Sathik, aged about 25 years, S/o Kattubava, under Section 3(1)(ii) of the COFEPOSA Act, is quashed. The detenu is ordered to be set at liberty forthwith unless his custody/detention is required in connection with any other proceedings/case.
Internet: Yes
(M.C., J) (M.S.N., J) 24.09.2010
To
1. The Secretary to the Government, Public (SC) Department,
Fort St. George, Chennai-600 009.
2. 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 66.
4. The Public Prosecutor, High Court, Madras.
M.CHOCKALINGAM, J AND
M.SATHYANARAYANAN, J
gr.
PRE DELIVERY Order in
H.C.P.No.2228 of 2009
24.09.2010