Madras High Court
Rizwana Ziyath vs State Of Tamil Nadu on 15 February, 2006
Bench: P. Sathasivam, J.A.K. Sampathkumar
THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15/02/2006
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice J.A.K. SAMPATHKUMAR
Habeas Corpus Petition No. 1126 of 2005
Rizwana Ziyath,
W/o. Ibrahim Nazeer,
17, Flat No.6, Thayar Sahib Street,
Ellies Road, Chennai-2. .. Petitioner.
-Vs-
1. State of Tamil Nadu,
represented by Secretary to Government,
Public (Law and Order) Department,
Fort St. George, Chennai-9.
2. Union of India,
represented by its Secretary,
Ministry of Finance, Department of
Revenue, Janpath Bhavan, COFEPOSA UNIT,
Central Economic Intelligence Bureau,
B Wing, 6th Floor, New Delhi. .. Respondents.
Habeas Corpus Petition filed under Article 226 of the Constitution of
India to issue a Writ of Habeas Corpus calling for records of first respondent
made in G.O.No. SRI/819-4/2005 dated 20-9-200 5, quash the same and direct
the respondents to produce the body of the detenu Ibrahim Nazeer, S/o.
Ibrahim, detained in Central Prison, Chennai, under the provisions of
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act before this Court and set him liberty.
Mr. B.Kumar, Senior counsel for Mr.S.Palani Kumar:- For petitioner.
^Mr. Abudukumar Rajarathinam, Govt., Advocate (Crl. side):- For 1st
respondent.
Mr. P.Kumaresan, Addl. Central Government Standing Counsel:- For 2nd
Respondent.
:ORDER
(Order of Court was made by P. Sathasivam, J.,) The petitioner, wife of one Ibrahim Nazeer, detenu herein, who was detained and kept in custody in the Central Prison, Chennai under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, challenges the same in this petition.
2. On 31-8-2005, the detenu-Ibrahim Nazeer, arrived Chennai from Singapore by Indian Airlines Flight IC 558 with Ticket No. 51671263862. After immigration clearance, he collected his three bags from the conveyor belt and proceeded to Customs Table No.8 where he declared that he was in possession of electronic goods worth Rs.30 ,000/-. At this point, he was intercepted by the Customs Officer and questioned the contents of his baggage. He reiterated the declaration given at the table that he was in possession of electronic goods of the value of Rs.30,000/-. Since his reply was not convincing, his three bags were taken up for examination in the presence of two independent mahazar witnesses. He produced two claim Tags bearing Nos. SQ 441432 and SQ 441433 and further stated in the presence of independent witnesses that the cardboard carton bearing Tag No. SQ 442077 tagged in the name of Tmt. Selvi Narayanan actually belonged to him and that as he was already having excess weight, he made use of her baggage weight entitlement. Enquiries by the officer showed that the said Selvi Narayanan had already left the arrival hall and that she had not filed any claim for missing baggage. In the presence of witnesses, his three bags were opened and examined one by one. Examination of navy blue colour bag bearing baggage Tag No. SQ 441432 resulted in the recovery of 12 Nos. Pioneer (model DEH-P 7750 MP) Car Stereos and 500 Nos. of Hynix 256 MB RAMs. Examination of indigo colour bag bearing baggage Tag No. SQ 441433 resulted in the recovery of 10 Nos. of Panasonic (model NV-GS 25 GC) digital video cameras, 5 Nos. of Sony ( model DCR-TRV 285E) digital video cameras, 3 Nos. of Pioneer Car Stereos and 10 Nos. of Motorola V3 mobile phones (without accessories). Examination of the Pioneer cardboard carton bearing baggage Tag No. SQ 442 077 resulted in the recovery of 4 Nos. of Panasonic (model No. NV-MD 9000 EN) Digital Video Cameras. It is also stated in the grounds that after fulfilling all the formalities, the value of the seized goods was ascertained. On the date of the seizure, the value of the seized goods was Rs.8,22,500/- (CIF) and Rs.11,51,500 (M.V) approximately. After finding that the adjudication and prosecution proceedings are likely to be initiated under Customs Act, 1962, the State Government after satisfying itself with the materials placed, arrived at a conclusion that it is necessary to detain him under the provisions of the COFEPOSA Act, 1974 with a view to prevent him from indulging in smuggling goods in future. The grounds further shows that while arriving at the subjective satisfaction to detain him under the COFEPOSA Act, the State Government has taken into consideration all the facts and materials referred to and relied upon in the grounds mentioned above and also the statements, bail petition, representation and mahazars etc.
3. Heard Mr. B. Kumar, learned senior counsel for the petitioner, Mr. Abudukumar Rajarathinam, learned Government Advocate for first respondent Mr. P. Kumaresan, learned Additional Central Government Standing counsel for second respondent.
4. Mr. B. Kumar, learned senior counsel appearing for the petitioner, initially contended that the detaining authority has blindly followed what the Customs authorities have mentioned without making an independent enquiry. According to him, the Customs authorities have included a baggage in the name of Thirumathi Selvi Narayanan, a passenger who had also travelled from Singapore to Chennai on 31-8-2005, as the one belonging to the detenu. He further contended that the said baggage and the goods found therein could not be included as belonging to the detenu. He further contended that the valuation arrived at did not indicate the basis on which it (valuation) has been arrived at. According to him, the basis for valuation has not been supplied to the detenu in spite of asking the same through her representation. He further contended that on the date of passing the order of detention, the detenu has not filed any bail application, as the only bail application has been withdrawn, hence the detaining authority is not justified in observing in that there is imminent possibility of the detenu coming out on bail.
5. Learned Government Advocate met all the points by placing the records. It is seen the detenu has collected his three bags from the conveyor belt and proceeded to Customs table No.8 by declaring that he was in possession of electronic goods worth Rs.30,000/-. However, on interception by the Customs Officer, he has produced two claim Tags in his name and according to the Department, he further stated in the presence of independent witnesses that the cardboard carton bag in the name of Selvi Narayanan was actually belonged to him and that he was already having excess weight he made use of her baggage weight entitlement. It is also the claim of the department that in his voluntary statement, he has confirmed the same. In such circumstances, according to the department, though the bag stands in the name of Selvi Narayanan, it was in the possession of the detenu only. Though it is not for this Court to go into the merits of the charges levelled against the detenu, the materials placed by the detaining authority would show that all the three checked in bags belonged to him though one out of the three pieces of the baggage was booked in the name of Selvi Narayanan. Further, the ownership of the baggage was decided and concluded on the basis of mahazar statement of the detenu and the declaration made under the Customs declaration slip by the detenu in his own hand writing. It is also seen that the detenu himself collected the third piece of baggage from the conveyor belt and carried it to the Customs examination table. The Customs declaration slip is a material evidence. Further, the said Selvi Narayanan went out of the air-port without claiming baggage and she did not complain of any loss of baggage. This will strengthen the fact that the said baggage was not belonged to her and it belongs to the detenu only.
6. As regards the valuation, it is the grievance of the petitioner that the department has not furnished the required details in spite of her representation to furnish the same. In the counter affidavit filed by Additional Secretary to the Government, Public ( Law and Order) Department, Secretariat, Chennai-9 in para 7 it was specifically stated that the "valuation of subject goods have been done as per the guidelines and on seeing the physical condition of the goods and thus the valuation is fair and correct and hence no independent enquiry was warranted...." Though reference was made from Valuation Rules, 1988, as rightly pointed out by the learned Government Advocate, the same are not applicable to the cases of baggage of passengers, which are governed by Baggage Rules, 1998.
7. Chapter VII of the Customs Act, 1962 deals with clearance of imported goods and export goods. Section 55 makes it clear that the provisions of this Chapter (Chapter VII) are not applicable to (a) baggage and (b) goods imported or to be exported by post. It is also relevant to note that as per Proviso to sub-section (1) of Section 14, the price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill or bill of export presented under section 50. The detenu has not placed any document much less bill of entry. This fact is not disputed. In such a circumstance, by applying the guidelines and on seeing the physical condition of the goods, the department valued the goods which cannot be considered as arbitrary or unfair. It is not in dispute that Courts exercising powers under the judicial review do not consider the challenge to an order of detention as if on an appeal re-appreciating the materials. Though Mr. B. Kumar, learned senior counsel for the petitioner heavily relied on a judgement of the Supreme Court in CHOWDARAPU RAGHUNANDAN v. STATE OF TAMIL NADU AND OTHERS [JT 2002 (3) SC 110], in the light of the factual details/materials and the ultimate satisfaction arrived at by the detaining authority before passing the order of detention, we are of the view that the claim of the petitioner that there is no material warranting action under COFEPOSA Act is no leg to stand. Instead, there are materials warranting such action.
8. Regarding the contention as to number of baggages, the detenu possessed with, learned Government Advocate has brought to our notice the mahazar which is available at page 1 of the paper book supplied to the detenu. The perusal of the mahazar shows that the detenu was in possession of three bags. The details regarding baggage, bag numbers, and the materials brought in are available in the mahazar. The travel documents seized and relied on by the detaining authority would clearly show that the detenu was in possession of three baggages (vide page 33 of the paper book). It is also not in dispute that as per Section 107 of the Customs ACt, the officer of Customs during the course of any enquiry in connection with smuggling of any goods, can examine any person and the statement thus obtained during the enquiry is admissible. We have already referred to the fact that the detenu has not produced bill of entry or any other document to show that he imported the goods seized, by a valid permit. It is also relevant to point out that at the time of remand, the detenu has not made any complaint of ill-treatment or harassment against the officials. The Additional Chief Metropolitan Magistrate before ordering remand, verified the remand report, seizure mahazar, statement of the accused and after finding that a prima facie case exists, remanded him to judicial custody till 15-9-2005. All the above materials were duly considered and taken note of by the detaining authority.
9. The detaining authority has also satisfied regarding the imminent possibility of the detenu coming out on bail. Para 5 of the grounds makes it clear that the detaining authority/State Government were aware of the fact that the detenu was in Central Prison, Chennai as a remand prisoner and also aware of the fact that he had filed a petition for bail and the same was dismissed as withdrawn on 17-9 -2005. The detaining authority was also aware of the fact that there was likelihood of filing another bail petition. In that event, there is every possibility of the detenu coming out on bail by an order of Court. Here again, we are satisfied that the detaining authority possessed all the required materials regarding its awareness of the detenu coming out on bail and in that event, he will indulge in any such prejudicial activities again while on bail and there was compelling necessity to preventing him from smuggling of goods.
10. Though it is contended that the representation was not properly considered, in the counter affidavit it is specifically stated that the representation was continuously and carefully considered and disposed of, there is no reason to disbelieve the above statement.
11. In the light of what is stated above, we do not find any valid ground for interference; consequently this petition is dismissed.
R.B. To
1. The Secretary to Government, Public (Law and Order) Department, Fort St. George, Chennai-9.
2. The Secretary, Union of India, Ministry of Finance, Department of Revenue, Janpath Bhavan, COFEPOSA UNIT, Central Economic Intelligence Bureau, B Wing, Sixth Floor, New Delhi.
3. The Joint Secretary to Government of Tamil Nadu, Public (Law and Order) Department, Fort St. George, Chennai-9.
4. The Superintendent, Central Prison, Chennai.
5. -do (for service on the detenu)
6. The Public Prosecutor, High Court, Madras.