Madras High Court
T. Bahthur Hussain vs The State Government Of Tamil Nadu Rep. ... on 10 November, 2000
ORDER E. Padmanabhan, J.
1. As against the petitioner herein, the first respondent clamped an order of detention under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as the first respondent arrived at the subjective satisfaction that the detenu is a smuggler and with a view to prevent him from indulging in such activities he had to be detained. Challenging the said detention, the present Habeas Corpus Petition has been filed raising number of contentions.
2. Heard Mr.M.Ajmeer AH for the petitioner Mr.G.M.Syed Fasiuddin, learned Additional Public Prosecutor for the first respondent and Mr.Su.Srinivasan, learned Additional Central Government Standing Counsel for the second respondent.
3. Before taking up the contentions, it is essential to refer to some of the facts or events, which are uncontroverted and which have a bearing on the order of detention clamped on the detenu.
4. On 13.4.2000, the detenu arrived by Malaysian Airlines at Chennai from Kulalumpur. The detenu after having collected his checked in baggage as well as carton proceeded with one hand baggage and declared to the Table Superintendent that he was not in possession of any gold, silver. T.V. or V.C.R but had one Sony VCD Player valued at Rs.12,000 and other electronic goods valued at Rs.2,000.
5. On suspicion that the detenu might be carrying gold either in his baggage or in his person, he was questioned in the presence of two witnesses. Though the detenu replied in the negative and reiterated the declaration, the Customs Officer was not satisfied with his reply and on a reasonable belief that the detenu might have concealed contraband prohibited goods took the detenu to the Air Intelligence Unit room with his baggage for examination and search. The baggage was examined in the presence of two independent witnesses and in the presence of the detenu. On examination, the baggage was found to contain one Sony MHC -VX 55 Mini Hi-Fi component system. 30 numbers of Casio (MJ-100) calculators and 32 numbers of Panasonic adapters.
6. However as the hand baggage was found to be unusually heavy even after is contents were removed the bottom pad of the bag was slit open in the presence of witnesses and in the presence of the detenu and a black coloured polythene packet was found concealed within the flaps of the pad. On opening the black coloured polythene packet, it was found to contain one newspaper wrapped packet. Upon further unwrapping the newspaper, a bundle wrapped with white adhesive tape was found. On removing the adhesive tapes in the presence of witnesses, 23 numbers of ten tola gold bars all bearing foreign markings were found in all weighing 2681.8 grams. The gold bars were seized.
7. The detenu was not an eligible person to import gold under the libralised policy of the Government of India. The detenu did not possess or produce way licence or permit or other document to show the legal importation of the said gold bars. Also the detenu failed to declare the said quantity of gold bars, hence it is a case of smuggling 23 gold bars into the country by ingenious concealment. The gold bars were seized. Apart from that 30 numbers of Casio (MJ-100) calculators and 32 numbers of Panasonic adapters besides travel documents such as air ticket boarding pass, baggage tag along with the corresponding claim tag and customs clearance card were seized. The Sony MHC -VX 55 Mini Hi-Fi component System was detained for further action.
8. On 13.4.2000, the detenu had given a voluntary statement about his trip to Singapore Via Malaysia, his being given gold bars by one Mohamed at Singapore in an electronic, shop that he used to make frequent trips to Singapore, purchase electronic goods and sell them for a bargain while on his onward journey he used to take clothes, books and small handicrafts items and sell them for a bargain at Singapore. The detenu narrated the sequences of events which led to the seizure of the gold bars and also admitted that it is an offence to smuggle gold bars without payment of customs duty and without declaring to customs officers. The detenu made a second confession statement on 13.4.2000 confirming the earlier statement and also admitted that he used to travel frequently to Singapore.
9. By the said attempt to import gold bars by concealment and without declaration, the detenu rendered him liable for confiscation under Section 111(d),(i)(1) and (m) of Customs Act. 1962 and also he had violated Section 77 of the Customs Act besides committed an offence punishable under Sections 132 and 135 of the Customs Act.
10. The detenu was produced before the Additional Chief Metropolitan Magistrate, who remanded the detenu to judicial custody. The family members of the detenu were intimated. The detenu's residential premises at Thennur was searched, but there was nothing incriminating.
11. The detenu's counsel moved the bail application on 13.4.2000 and retracted the voluntary statements already made by him alleging that the same had been recorded under coercion, undue Influence and threat. A counter affidavit was filed and the Court dismissed the bail application on 27.4.2000. The remand of the detenu was extended upto 11.5.2000. 19.5.2000 and 2.6.2000. The market value of the gold bars seized is Rs.11,88,842 and other electronic goods is Rs.11,400 on the date of seizure.
12. Based on the said materials, the first respondent arrived at the subjective satisfaction that the detenu had indulged in smuggling goods and with a view to prevent him from indulging in such activities he had to be detained under Section 3(1)(i) of the COFEPOSA ACT, 1974. as the detenu is likely to be released on bail and he may indulge in such activities and the normal criminal law would not have the desired effect of preventing the detenu from indulging in such activities in future. Thus arriving at the subjective satisfaction, the order of detention had been clamped by the first respondent. The order of detention had been served on the detenu on 2.6.2000 and the grounds of detention was served on the detenu on 3.5.2000 through the Superintendent, Central Jail. His relatives were intimated.
13. The fact that the 23 numbers of ten tola gold bars weighing 2681.8 grams were concealed inside a false bottom of the bag and recovered during the search is not disputed nor it is the case of the detenu that he was not aware of the existence of the gold bars, which were concealed. It is an ingenious attempt on the part of the detenu to smuggle gold worth Rs.11,88,842 into India. Hence it is evident that sufficient materials were placed before the detaining authority to arrive at the subjective satisfaction that the detenu is a smuggler and he has to be detained to prevent him from indulging in further activities of smuggling.
14. As already pointed, there is sufficient material before the detaining authority to arrive at the subjective satisfaction apart from the fact that the detenu had concealed substantial quantity of gold with foreign marking and attempted to smuggle the same into India while returning from Kulalumpur. The detenu is a frequent visitor to Kulalumpur and he had been staking a livelihood by under taking such frequent trips. The learned counsel for the petitioner raised number of contentions and they will be considered in the order in which they had been raised.
15. While meeting out the contentions the learned Additional Public Prosecutor and the learned Additional Central Government Standing Counsel took the Court through the materials placed before the detaining authority and the subjective satisfaction arrived at by the detaining authority is not liable to be interfered and that the order of detention is not vitiated nor it is liable to be quashed.
16. The learned counsel for the petitioner admitted that the detenu knows to read and write English and in fact he signs with a style in English. The detenu is well conversant with English language and his mother tongue is Tamil. The detenu had a working knowledge of English and it is admitted that the detenu knows to read, write and sign in English, besides he had frequented himself to Kulalumpur.
17. According-to the learned counsel for the petitioner, the order of detention is illegal and vitiated in that if is not clear as to who had clamped the order of detention. While elaborating this contention, the learned counsel for the petitioner contended that the order of detention as set out in the detention order proceeds as if it has been passed by the Governor of Tamil Nadu. While the counter affidavit discloses that the order of detention has been passed by the Hon'ble Minister for Law. This vitiates the order of detention besides pointing out that the order of detention had been issued by the order of the Governor and the grounds of detention had been issued by order and in the name of the Governor. This contention advanced by the learned counsel for the petitioner is a misconception of the legal position and it cannot be sustained at all.
18. The order of detention had been passed by the Secretary to the Public (SC) Department on 1.6.2000 and it has been issued by the order of the Governor. So also the grounds of detention. It is needless to state that the first respondent is the detaining authority in terms of the provisions of the COFEPOSA Act and the State Government is the approving authority which State Government has also approved the order of detention within the time prescribed in this behalf as provided in the business Rules. The learned counsel for the petitioner had misconstrued the provisions of the COFEPOSA Act and had advanced the said contentions.
19. The contention raised by the counsel for the petitioner has to be negatived in the light of the pronouncements of the Division Bench of this Court in Bajaj Preeti Tulsidas v. State of Tamil Nadu and others dated 29.2.2000 made in H.C.P.No.1626 of 1999 wherein the same contention advanced had been rejected and we are in respectful agreement with the said ratio laid down by the Division Bench consisting of V.S.Sirpurkar and K.Gnanaprakasam. JJ.
20. In terms of the provisions of the COFEPOSA Act, the State or Central Government has to function only through human agencies viz., its Officers and functionaries and it cannot function by itself as an abstract body. Such being the case, even though S.3(1) provides for an order of detention being made either by the Central Government or one of its officers or the State Government or by one of its officers, an order of detention has necessarily to be made in either of the situations only by an officer of the concerned Government.
21. Under the COFEPOSA Act an order of detention made by an officer is treated as an order of detention made by the Government itself, although through the instrumentality of an officer empowered under Section 3. The resultant position emerging from various provisions of the COFEPOSA Act particularly Sections 2(a), 3, 8(b)) and 11 is that even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be the said order will give rise to obligations to be fulfilled by the Government to the same degree and extent to which it will stand obligated if the detention order had been made by the Government itself. So it is the concerned government that would constitute the Detaining authority under the Act and not the officer concerned who made the order of detention and it is to that government the detenu should be afforded, opportunity to make representation against the detention order at the earliest opportunity.
22. A perusal of the detention order in the present case would show that the order of detention having been taken in the name of the Governor and validly authenticated, it tantamount to an order or the State Government in terms of Section 3(1) of the COFEPOSA Act, 1974, as has been held by the Apex Court in State of Gujarat v. Mohd. Ismail Jumma and others, .
23. Further in the light of the statutory provisions of the COFEPOSA Act, namely. Section 11 read with Section 3(1). there are four authorities who can pass the order of detention viz..
1. The Central Government
2. Officers specially empowered by the Central Government.
3. The State Government and
4. Officers specially empowered by the Slate Government -
24. Section 3(1)(i) of the Act is the provision under which the power to make orders of detention is found and the four authorities already referred to are competent to make the orders directing such persons to be detained. Further the conduct of the Government business so far with respect to the State Government Is concerned is found in Article 166 of the Constitution and it provides that all executive action of the Government of the State shall be expressed to be taken in the name of the Governor. Article 166 provides the mode of conduct of Business of Government and therefore, the executive action like the clamping detention of a person is in terms of Article 166 and such action is taken in the name of the Governor, but nonetheless the detention order is that of the Government.
25. On a perusal of the file, the order of detention, the grounds of detention, the counter affidavit and the connected records, we are satisfied on the facts of the present case it is the competent authority, namely, the first respondent, who had clamped the order of detention and there is neither any doubt nor there is illegality and the contention advanced by the petitioner is a clear misconception. Hence this contention fails.
26. The learned counsel for the petitioner nextly contended that the rejection of the representation had been done mechanically and this vitiates the order of detention. Except saying that the rejection of the representation was done mechanically, the learned counsel for the petitioner is unable to point out or substantiate the said contention.
27 In the present case, the representation submitted to the State Government, which the detaining authority had considered and it had been rejected and it cannot be said that it is a mechanical rejection without application of mind. The files placed before the Court demonstrably establish that the representations have been considered elaborately by the concerned officers of the State Government and ultimately by the orders of the Hon'ble Minister for Law on whom the power has been conferred as per the Business Rules, the State Government rejected the representation. Hence this contention cannot be sustained.
28. Thirdly, the learned counsel for the petitioner contended that the order of detention is vitiated as number of documents have not been furnished to the detenu. While elaborating this contention, the learned counsel pointed out between the order of detention and the grounds of detention, there are two other reference numbers and the Same also are referred to in the detention order and the failure to communicate is fatal. This contention is a clear misconception of the procedure. Merely because a reference number is assigned in the proceedings with some sub numbers, it cannot be assumed that there are other materials before the State Government. A perusal of the file as well as the paper book supplied to the detenu would show that all the material documents relied upon by the detaining authority had been furnished to the detenu and this contention is based upon factual misconception. We hold that all material documents and documents relied upon were furnished to the detenu. Hence this contention also deserves to be rejected.
29. The learned counsel for the petitioner contended that there is a difference between the Tamil version and English version with respect to the imminent possibility of the detenu being enlarged on bail. Concedingly the detenu knows not only to read but also write and understand English and he has got a fair working knowledge. Therefore as the order of detention as well as the grounds of detention had been served in English the detenu cannot plead, that he had been prejudiced. Further the Tamil version of the grounds of detention is a fair translation and there is no difference and the detaining authority had rightly proceeded on the premise that there is imminent possibility of the detenu being enlarged on bail as he had moved application after- application for bail. The detaining authority was aware that the detenu was in judicial remand and he has consciously applied his mind and arrived at the subjective satisfaction that if the detenu is to be enlarged on bail, he will indulge in the said activities of smuggling and therefore this contention also fails.
30. At one stage, the counsel for the petitioner contended that he is not challenging the subjective satisfaction arrived at. However on a latter stage, it was contended by the counsel for the petitioner that there is no material for the detaining authority to arrive at the subjective satisfaction. We are unable to appreciate this contention as such an argument had been advanced out of frustration. The materials placed before the detaining authority by the sponsoring authority are relevant materials and the same are more than sufficient to arrive at the subjective satisfaction. The order of detention is not vitiated by non- application of mind nor the subjective satisfaction could be held to be arbitrary or perverse or without basis. Hence both the contentions fail.
31. The learned counsel for the petitioner nextly contended that there is a delay in considering the representation and when no further information is required the detaining authority had forwarded the remarks to the sponsoring authority with a view to delay the disposal of representation and the said delay is fatal. We are unable to persuade ourselves to sustain such a contention. Concedingly, as seen from the counter-affidavit filed by the first respondent, the representation dated 5.7.2000 reached the State Government on 6.7.2000. On 6.7.2000 itself, para wise remarks were called for from the sponsoring authority. The Customs Department received the said letter calling for Parawar remarks on 7.7.2000, 8.7.2000 and 9.7.2000 being Saturday and Sunday were closed holidays. The parawar remarks were prepared, approved and forwarded to the State Government and received by the State Government on 12.7.2000. The time taken for the preparation of parawar remarks in this case is only minimal and there is no reason to hold that there is any delay in preparing the parawar remarks. The parawar remarks called for reached the State Government on 13.7.2000. The circular note was put up on 14.7.2000. 15.7.2000 and 16.7.2000 being Saturday and Sunday were closed holidays. On 17.7.2000 the Deputy Secretary to Government (Law and Order) Department considered the representation and on 18.7.2000 the Secretary to the Government. Public Department considered the representation. On 19.7.2000 the Secretary to Law Department considered the representation. On 20.7.2000 the Hon'ble Minister for law considered and rejected the representation which was communicated to the detenu on 21.7.2000.
32. On a perusal of the above papers, we are satisfied that there is no delay at all in the State Government considering the representation submitted by the detenu. No representation at all had been submitted to the Central Government. Hence we hold that there is no delay in considering the representation and there is no infraction of Article 22(5) of the Constitution.
33. Lastly it was contended that there is a delay in passing the order of detention and this is fatal. This again a contention, which had been advanced out of frustration. In the present case, the detenu had been entrusted with the gold bars at Singapore and when he arrived at Chennai International Airport on 13.4.2000 and 23 numbers of gold bars with foreign marking concealed by the detenu were recovered from his baggage, Thereafter the detenu's house at Thennur was searched on 14.4.2000 as a follow up action. The confession statements were recorded on 13 and 14th of April, 2000, the detenu had admitted that the gold bars were handed over to him by one Mohammed at Singapore, whom the detenu had met at an electronic shop at Singapore and the detenu had been frequenting himself to Singapore. Hence the customs authority has to proceed with the investigation with respect to the foreign connections of the detenu and his earlier frequent trips and only thereafter the materials have to be placed before the detaining authority, who has to arrive at the subjective satisfaction. The detenu was produced before the Additional Chief Metropolitan Magistrate. E.O.T.
34. Initially on 13.4.2000 and the remand was extended from time to time on various dates lastly upto 2.6.2000. The detenu has not only moved the bail on more than two occasions and attempted to get himself enlarged on bail and the bail application came to be dismissed on 27.4.2000. A corrigendum to the Arrest memo was issued by the Customs Department and the same was tiled by the Customs Department before the Additional Chief Metropolitan Magistrate. Thus the investigation was in progress and in fact the customs authorities have to collect more materials with respect to the earlier trips made by the detenu and also his contact with persons at Singapore. Hence it is clear that there is - nexus between the act of smuggling and the clamping of detention in this case. Within 45 days from the date of occurrence the order of detention had been clamped and during the said period there had been progress not only in the investigation but also various proceedings including the application for bail was moved and remand was extended upto 1.6.2000. Therefore, it is clear that the nexus between the act of smuggling and the clamping of detention had not been lost and there is definite nexus. As such there is no delay at all.
35. There is no delay at all in passing the order of detention. At any rate mere delay is not enough to snap the live-link because in the enforcement of a law relating to preventive detention like COFEPOSA, 1974 there is bound to be some delay between the prejudicial activities complained under the Act and making of an order of detention. When a person is detected of indulging in the nefarious activities of smuggling, the authority detecting has to make a thorough investigation with a view to determine the identity of the person or persons engaged in the operation, which have deleterous effect on the national economy. Since such operation includes a wide net work of person, it involves recording of statement of persons involved.
36. In the present case, on the facts, we are convinced that there is no delay at all in passing the order of detention and last of the contentions' also fails.
37. For the above reasons, we hold that there are no merits in all the contentions advanced by the learned counsel for the petitioner and consequently the Habeas Corpus Petition fails and it is dismissed.