Karnataka High Court
H.S. Mohanamba W/O Yellaiah vs Ms. Vatsala Watsa, Principal Secretary ... on 21 March, 2007
Equivalent citations: 2007 (3) AIR KAR R 328
Author: R. Gururajan
Bench: R. Gururajan, Anand Byrareddy
ORDER R. Gururajan, J.
1. This petition is filed by one Smt. H.S. Mohanamba, W/o. Yellaiah, challenging the detention order dated 14.7.2006 issued by the first respondent in terms of the provisions of COFEPOSA. The petitioner also seeks a direction to the 4th respondent to set at liberty the COFEPOSA detenue R. Yellaiah.
2. The facts narrated in the Writ Petition are as under:
The detenu has put in more than 31 years of blemishless service in the Department of Customs. He was posted to the Postal Appraising Department of the Foreign Post Office, Bangalore. He took charge from the predecessor Sri. E. Lakshmanan. He explained the procedures and practices followed in the Foreign Post Office PAD wing. The detenue followed the same. Based on such information, Officers of the DRI Maintained surveillance at Frazer Town Post Office. On 28.12.2005, at about 9.30 a.m. a Tata Indica car comes alongwith driver and occupant. The occupant goes into the post office and later he comes out of the post office. At 9.50 a.m. the car is intercepted. Four parcels in the possession of Riyazudeen are seized. The parcels were addressed to M/s. Acuta Spectra Inc. The said Riyazudeen informed the DRI officers that he had come to collect the four parcels on behalf of one Abdul Khader who is living in the ground floor of his house. The car was arranged by Sri. Abdul Khader. Riyazudeen stated that the said Abdul Khader had asked him to contact one Ganesh of Frazer Town post office to take delivery of the parcels. The four parcels with the declaration/covering note on top "Computer Parts-Chapter 87 Duty Exempted" were opened and were found to contain RAM's. The said RAM's were seized under a Mahazar. The residences of M/s. Acuta Spectra & Riyazudeen were searched and certain documents relevant to the investigation were recovered. The statement of Riyazudeen was recorded on 28.12.2005. Thereafter in terms of the statement, the residence of one Sri. Ammasi was also searched. Thereafter, the statement of Sri. Puttaramu the driver of the car was recorded.
3. On 29.12.2005, a letter was addressed to the Joint Commissioner of Customs adopted for clearance of parcels at PAD. Subsequently the statement of Sri. Ammasi was recorded. He was arrested and released on bail. The Senior Superintendent of Post Office forwarded the Extract of the elimination register containing the entries of the speed post parcels. There was correspondence between one authority and another authority. The petitioner has provided the various details with regard to the said transaction of the said date. Ultimately, the matter reached the Commissioner of customs. Thereafter, the statement of detenue was recorded. Subsequently, summons were received from Sri. Abdul Khader and he failed to appear for the same. DRI, Bangalore requested the Manager, Speed Post Center to hand over the acknowledgement of Speed Post parcels. Various further details are provided in the petition with regard to the transaction in the matter of RAM's. Ultimately, the detenue was placed under suspension on 18.3.2006 on certain omission and commission on his part. Preliminary investigation was ordered. Sri. Ammasi filed a Writ Petition in this Court seeking for release of goods. Son of Sri. Ammasi thereafter informs the death of Ammasi on 2.6.2006 and stated that the seized goods do not belong to them and have no objection to dispose or sell the seized goods. Subsequently he was kept under detention in terms of Annexure 'A' - Grounds of detention was made available in terms of Annexure 'B'. The petitioner with these facts is before this Court by raising various questions in support of his prayers.
4. State Government has filed a counter affidavit opposing the petition. The State Government would say that one Sri. Riazuddin took delivery of the parcel and he was intercepted. On detail examination of the parcel, it was revealed that all the parcels contain Random Access Memory cards of different capacity used in computers. On verification, it was noticed that the above four mentioned parcels were cleared without payment of customs duty and thus the residence of Abdul Kader was searched. A mahazar was drawn. Proceedings were held and the statements of various witnesses were recorded including Sri. Yellaiah. The State Government says that M/s. Acuta Spectra Inc. Bangalore through its Proprietor Sri. Ammasi, in a letter, stated that he is ready and willing to pay the applicable customs duty and requested for immediate release of the seized goods. Thereafter, the detenue was placed under suspension and an investigation was ordered. According to the State Government, it is clear that M/s. Acuta Spectra Inc. was set up by a fictitious person Abdul Kader to facilitate smuggling of computer parts, which were received from Singapore and the computer parts attract a total 20.97% customs duty. The clearance of speedy post parcels containing the computer parts without examination has caused huge loss to the Government. The seized articles valued at Rs. 1.17 crores and customs duty of Rs. 19 lakhs was approximately supposed to be collected from the importer which the detenue has failed to do. The State Government says that the detenue has committed an act of smuggling in terms of the averments made in the counter affidavit. It was in those circumstances, he was kept under detention.
5. The State Government would deny various allegations made against it by way of a detailed affidavit. The State Government also says that the proceedings of the Advisory Board was conducted and thereafter the Advisory Board has accepted the detention. The State Government in these circumstances requested this Court to dismiss the Writ Petition.
6. Subsequently, an additional affidavit was filed on 18.1.2007 duly sworned by Smt. Vatsala Watsa, Principal Secretary to Government, Home Department. She says that on receipt of parawise comments and after subject to application of mind, she rejected the representation and issued an endorsement to the petitioner. She would also say that the Central Government has rejected the request of the petitioner in terms of an order dated 23.8.2006. She says that no representation to the petitioner was received by the Government of Karnataka on 12.8.2006 as stated in para 32 at page 15 of the Writ Petition.
7. Matter is heard for final disposal. Sri. B. Kumar, learned Senior Counsel appearing for the petitioner argues that in terms of the grounds of detention, the petitioner can make a representation to the detaining authority/Government of Karnataka or to the Central Government and according to the petition averments, representations have been made to all the three authorities in terms of the representations sent by RPAD on 12.8.2006, 14.8.2006 and 12.8.2006 respectively. He refers to us the averments in para 32 of the Writ Petition. He says that the representations have been considered by the detaining authority and the Central Government. But, however, the representations have not been considered by the State Government in terms of the grounds of detention. According to the learned Counsel, the non consideration is fatal to the case of the respondent. He would strongly rely on several Judgments in support of his submissions. Even on merits, learned Counsel says that his client is innocent and he is unnecessarily involved in the case on hand resulting in un warranted detention in terms of the Act.
8. Per contra, learned Advocate General contends that the authorities are fully justified in passing the detention order on the facts and circumstances of this case. In so far as representation is concerned, he would invite our attention to the material facts to say that the detaining authority as well as the Central Government have rejected the representation. The State Government has not considered the representation in the light of the pending Writ Petition. He says that the non consideration of this representation would not by itself result in nullification of the order on the facts of this case. He would also rely on certain Judgments in support of his submission. An affidavit is also filed with regard to delay in non considering the representation made to the State Government.
9. Records were made available to us. After hearing, we pass the following order:
Section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act provides for power to make orders detaining certain persons.
The detenue is detained in terms of Section 3 with a view to prevent him from abetting of goods. Order has been signed by the Principal Secretary to Government, Home Department. Law is fairly well settled that Article 22 has to be complied with in detention cases in the light of the larger interest of liberty in terms of the Constitution. Paragraphs 75, 76, 77 and 78 would provide for representation to the detaining authority, Government of Karnataka, Central Government and to the Advisory Board. The petitioner asserts in the Writ Petition that representations have been sent by the Registered Post to the detaining authority, Government of Karnataka as well as the Union of India. The State Government in reply says that the Central Government rejected the representation so also the Principal Secretary. The arguments before us are that the State Government has failed to consider the representation despite receipt of the same in August 2006. The contention is that delay in not considering the representation would be fatal to the case of the Government.
10. Original file along with the flag marks are made available to us by the learned Government Advocate. In the original file, we see at page 312, a representation made to the Prl. Secretary by the petitioner dated 13.8.2006. The same is not seriously disputed except the receipt of the same on 1.9.2006. The same remains not considered as on date. Learned Advocate General says that the Court may direct them to consider the representation and non consideration is on account of the pending Writ Petition.
11. Before we consider the legal effect of non consideration, let us see the law on the subject. Various case laws are made available to us. It is unnecessary for us to refer to each one of them.
In Kamleshkumar Ishwardas Patel v. Union of India and Ors. in , the Apex Court considered the case of representation in terms of the Constitutional provision. The Court notices that "Article 22(5), therefore be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation."
The Court also notices Section 3 in para 20.
The Apex Court in para 38 notices as under:
Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made Under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.
Therefore, what is clear to us is that the Government has to consider the representation despite rejection of the same by the detaining authority or by the Central Government. Admittedly, the representation to the State Government is not considered.
12. Courts have also considered the factum of delay in consideration of the representation and the effect of delayed consideration in various Judgments.
The Supreme Court in the case of Mst. L.M.S. Ummu Saleema v. Shri. B.B. Gujaral and Anr. has ruled that the detaining authority was under an obligation to adequately explain each day's delay and the representation made by the detenue has to be considered by the detaining authority with utmost expedition. On a survey of the various authorities, it is clear that the representation, if any, submitted on behalf of the detenue shall receive immediate attention and that the same shall be considered by the appropriate authorities as expeditiously as possible. Any delay would naturally cause prejudice to the detenue. The representation made in the month of August is not considered till date. The Supreme Court in 1995 (4) SCC 51 has considered the importance of Article 22 in the matter of liberty to a citizen in terms of the Constitution. The Supreme Court has ruled in para 49 as under:
At this stage, it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenus the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The Framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be 'zealously watched and enforced by the Court." Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court.
In the light of the Apex Court rulings, the non consideration in our view would be fatal to the Government on the facts of this case. In terms of the Supreme Court, we have zealously watched and we have enforced the rigour of Article 22 by accepting the contention of the petitioner.
13. Learned Advocate General would place before us the Judgment of the Apex Court in 2006(5) SCC 142 in support of his submissions. He says that in the said case, there are more than 119 days and the Court accepted the case of the Government despite non consideration of the representation. In the light of this Judgment, we wanted the Government to explain delay in the matter. Initially delay was not explained. Later, at the request of the learned Advocate General, we granted time to file an affidavit. Affidavit is filed and in the affidavit, it is stated that in the light of receipt of Writ Petition, delay was not considered. We have seen the original file in the matter of explanation. As mentioned earlier, the representation is seen at page 312. The same was received on 2.9.2006. Notings thereunder would show that the files are to be put up for considering the representation. There is nothing available on the file with regard to non consideration on account of pending Writ Petition. The file is silent. In fact, from the file, we notice at page 28 that a reference is made with regard to the Writ Petition in terms of the notings on 26.10.2006. There is absolutely no reasons for non consideration in the file. Assuming that the Court notice would be an explanation even then the period between 2.9.2006 to 26.10.2006 is not explained. In the absence of any acceptable material available on record, we are not prepared to accept the affidavit with regard to the reasoning for delay on account of Writ Petition. In the absence of any acceptable explanation with regard to non consideration, we have no option but to set aside the detention order in the case on hand. However, in the light of the submission of the learned Advocate General, we have carefully seen the order passed in the case of D. Anuradha v. Jt. Secretary and Anr. In the said order, it is seen that five representations have been sent one after another. There was a delay of 119 days. The Court notices the reasonings for delay being non availability of the translated copy of the representation. The Court also notices the affidavit filed by the Government. The Court ruled in para 15 that "in the facts and circumstances of the case, we do not think that there was inordinate delay in disposing of the representation." In the light of an acceptable explanation, the Court condoned the delay of 119 days. In this case except a mere say of Writ Petition, no material is placed before us by way of explanation for the purpose of consideration of the representation. We are not impressed with the reasons given by the Government. Another decision is also brought to our notice reported in KLJ 1985(1) 35. We have gone through the said Judgment. A reading of the facts in that case would show that the said case stands on a different footing in terms of the findings at page 39 of the order. In that case, there was an injunction and it was in those circumstances, the Court took serious note of the consideration of the matter by the parties. The said Judgment is distinguishable on facts. Even otherwise, unless the facts support the affidavit the reason for delay, we are not inclined to accept the affidavit blindly. In these circumstances, we deem it proper to accept this Writ Petition. The detention order is set aside as violative of Article 22 of the Constitution of India in the light of non consideration of the representation right from August-September 2006 till date.
14. Before completing, we deem it proper to say that we have not expressed any opinion on the merits of the matter. Any proceedings, pending against the petitioner in any Court of law has to be decided on its merits, without reference to this order and this order is only for the purpose of consideration of the representation in terms of Article 22 of the Constitution of India. We further deem it proper to observe that if the Government is still serious about the detention, they may take appropriate action, if available to them in law and in accordance with law. No costs.