Madras High Court
H. Baseer vs The State Of Tamil Nadu on 9 March, 2004
Bench: P. Sathasivam, S.R. Singharavelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 09/03/2004
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S.R. SINGHARAVELU
Habeas Corpus Petition No. 1270 of 2003
H. Baseer,
S/o. late Hyder Ali,
Old No.1/6, New No. 1/24,
Melatheru,
S.P. Pattinam, Ramanathapuram District. .. Petitioner.
-Vs-
1. The State of Tamil Nadu,
represented by the Secretary to
Government, Public (SC) Department,
Fort St. George, Chennai-9.
2. Union of India,
represented by the secretary to
Government, Ministry of Finance,
Department of Revenue,(COFEPOSA Unit),
Central Economic Intelligence Bureau,
Janpath Bhavan, Janpath,
New Delhi-110 001
3. The Superintendent of Central Prison,
Central Prison, Chennai-3. .. Respondents.
Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Habeas Corpus, calling for the records relating to the
detention order in G.O.No. SR.I/741-4/2003, Public (SC) Department, dated
10-06-2003, passed by 1st respondent and quash the same and direct the
respondents to produce the body of the person of the detenu, H. Baseer, son
of late Hyder Ali, now detained in the Central Prison, Chennai, before this
Court and set him at liberty.
!Mr. C.T. Subbaiah:- For petitioner.
^Mr. A. Navaneetha Krishnan, Addl. Public Prosecutor:-
For Respondents 1 and 3.
Mrs. Vanathi Srinivasan, Addl. Central Govt., Standing counsel:- For 2nd
Respondent.
:ORDER
(Order of the Court was made by P. Sathasivam, J.,) This petition has been filed by the detenu himself challenging the detention order in G.O.No. SR.1/741-4/2003 Public (SC) Department dated 10-6-2003 passed against him under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52/1974) (in short "COFEPOSA") on the allegation that he attempted to smuggle into India, electronic goods valued at Rs.6,33,200/- through Madras International Airport by misdeclaration/concealment when he came from Singapore on 21-5-2003. The detention order was served on the detenu on 11-6-2003 and the detenu is detained in the Central Prison, Chennai as COFEPOSA detenu.
2. It is seen that the petitioner-detenu came from Singapore via Colombo and landed at Chennai International Airport on 21-05-2003 along with 3 baggages and on his arrival, he went to Customs counter for clearance of the baggage brought by him. He was intercepted by the Customs Intelligence Officers near the conveyor belt No.2 and he was taken to the Air Intelligence room for detailed examination. He declared to the customs intelligence offices that his baggages contain 30 cell phones, 6 Nos. of mother boards, 4 Nos. of car stereos and two video cameras totally valued at Rs.1,60,000/-. It is further alleged that he attempted to smuggle electronic and other goods of foreign origin totally valued at Rs.6,33,200/-(CIF) into India by misdeclaration with a view to evade customs duty. It is also alleged that the customs officers arrested him on 22-05-2003 under the provisions of the Customs Act and produced before the Additional Chief Metropolitan Magistrate (E.O.II), Chennai and remanded him to judicial custody. On the basis of the above allegation, the detaining authority has passed the impugned detention order against him under COFEPOSA Act.
3. Learned counsel for the petitioner, after taking us through the grounds of detention, has raised the only contention that the retraction letter dated 31-5-2003 sent by his counsel addressed to the sponsoring authority, namely, Commissioner of Customs (Air) was not forwarded to the detaining authority who passed the order of detention on 10-6-2003. According to him, inasmuch as the relevant document was not placed before the detaining authority though it was sent prior to the passing of the order; hence the detention order is vitiated. On the other hand, learned Additional Public Prosecutor would contend that the alleged letter was not addressed to the authority concerned, even otherwise on receipt of the same on 4-6-2003, considering the claim made therein, the same was forwarded to the appropriate authority, namely, adjudicating authority; hence there is no question of placing the said letter to the detaining authority. He also contended that however the said letter was placed before the Advisory Board and the Government and that the same were rightly considered and rejected.
4. We have carefully considered the rival submissions.
5. It is seen that the retraction letter dated 31-5 -2003 was sent by the counsel through speed post. According to the petitioner, the same was received by the authority concerned 3-6-2003. In support of his claim, the counsel has produced the intimation from the Chief Postmaster, Customer Care Centre, Chennai G.P.O., 600 00 1. The letter dated 13-11-2003 from the said authority shows that the article (registered letter 2340) was delivered to the addressee on 3-6-2003 by Chennai G.P.O., Post Office. No doubt, in the said communication of the Chief Postmaster, the name of the addressee has been described as Commissioner of Customs, No.35, Rajaji Salai, Chennai-1. It is the claim of the respondent that the proper authority is the Commissioner of Customs (Air). Apart from the letter of the Chief Postmaster to show that the letter dated 31-5-2003 by the counsel reached the Office of the Commissioner of Customs on 3-6-2003, the counsel has also produced xerox copy of booking receipt which shows the name of the addressee as Commissioner of Customs (Air), Chennai-1. Even though it is claimed that the addressee has not been properly described, namely, Commissioner of Customs (Air), even according to the respondents, the said letter was received by the sponsoring authority, namely, Commissioner of Customs (Air) on 4-6-2003. In such a circumstance, after knowing the contents of the same, it is but proper to place before the detaining authority for his consideration. In this regard, learned Additional Public Prosecutor, after taking us through the relief prayed for in the letter dated 31-5-2003, submitted that it was addressed to the adjudicating authority for early disposal of the claim petition. He also contended that considering the claim made in the said letter and the ultimate relief prayed for, it is for the adjudicating authority to consider and there is no need to place the same before the detaining authority. After going through the entire letter of the counsel dated 31-5-2003, we are unable to appreciate the said contention. The perusal of the letter shows that on more than one place, the confessional statement said to have been made has been denied. This is clear from pages 2 and 3 of the said letter. Apart from this, even in the ultimate paragraph, the counsel has specifically prayed for that "(c) Direct the customs department not to take any steps for detaining my client under COFEPOSA Act, considering the pathetic situation of the two female children of my client......". In such a circumstance, it cannot be claimed that the letter of the counsel dated 31-5-2003 relates only for early disposal of the adjudication. Having received the said letter on 4-6-2003 by the sponsoring authority, who is none-else than the Commissioner of Customs (Air), he ought to have forwarded the same to the detaining authority and in turn before passing the detention order on 10-6-2003, it is incumbent on the detaining authority to consider the said representation dated 3 1-5-2003. In this regard, it is relevant to refer a decision of the Apex Court in Ahamed Nassar v. State of Tamil Nadu, reported in 1999 AIR SCW 3985. In the said decision, Their Lordships have held that non-placing of letters which were relevant vitiated detention order. Here, in the case on hand, as stated earlier, the said retraction letter was received by the sponsoring authority well prior to the passing of the detention order, the same was not forwarded to the detaining authority and the same was not considered by the said authority. Learned counsel for the petitioner has also brought to our notice a Division Bench decision of this Court rendered in H.C.P.No. 1123 of 2002 dated 12-12-2002 (A. Syed Ibrahim v. State of Tamil Nadu and others) wherein in similar circumstance the Division Bench has held that "Once that fact is established that the letter was sent to the Commissioner, Customs Department, it had to be sent to the detaining authority, as it cannot be imagined that the Sponsoring authority like the Commissioner would keep back the letter. We only say that even if it was an error, it was an fatal error which has resulted in vitiating the order....."
We are in agreement with the said conclusion.
6. In the light of what is stated above, inasmuch as the relevant document, namely, retraction letter was not placed before the detaining authority, the detention order dated 10-6-2003, passed by the detaining authority is vitiated; accordingly the same is set aside. The detenu is directed to be set at liberty forthwith if he is not otherwise required for any other case or cause. Habeas Corpus Petition is allowed.
R.B. Index:- Yes Internet:- Yes.
To:-
1. The State of Tamil Nadu, represented by the Secretary to Government, Public (SC) Department, Fort St. George, Chennai-9.
2. Union of India, represented by the secretary to Government, Ministry of Finance, Department of Revenue,(COFEPOSA Unit), Central Economic Intelligence Bureau, Janpath Bhavan, Janpath, New Delhi.110 001
3. The Superintendent of Central Prison, Central Prison, Chennai-3.
4. Copy to the Public Prosecutor, High Court, Madras.