Madras High Court
Shaik Rahamathullah vs The Secretary To Government Of Tamil ... on 27 March, 2012
Bench: K. Mohan Ram, G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: -27.3.2012
Coram:-
The Honble Mr. Justice K. MOHAN RAM
and
The Honble Mr. Justice G.M. AKBAR ALI
Habeas Corpus Petition No.7 of 2012
Shaik Rahamathullah .... Petitioner
S/o Shaik Hassan,
vs
1. The Secretary to Government of Tamil Nadu
Public (Law and Order) Department,
Secretariat, Chennai 600 009
2. The Secretary to Government of India
Ministry of Finance,
Department of Revenue (COFEPOSA Unit)
Central Economic Intelligence Bureau
Janpat Bhavan, B Wing, 6th floor,
Janpat, New Delhi-110 001
3. The Superintendent of 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 pertaining to the detention order in No.G.O.No.SR.1/706-6/2011 Public (SC) Department, dated 7.12.2011, passed by the first respondent herein, quash the same, direct the respondent to produce the detenu viz., Shaik Rahamathullah , S/o Shaik Hassan, now detained in the Central Prison, Chennai under Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act before Court and set him at liberty.
For Petitioner : Mr.M. Abdul Nazeer
For R.1 & R.3 : Mr. A.N. Thambi Durai
Addl. Public Prosecutor
For R.2 : Mr.V. Parivallal
SCGSC
ORDER
(Order of the Court delivered by G.M. AKBAR ALI,J.,) The petitioner, who is the detenu herein, challenges the detention order dated 7.12.2011 passed by the first respondent against him under Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, quash the same, produce him before Court and set them at liberty.
2. On 10.9.2011, the detenu, holder of a Singapore Passport No.E-1719683K dated 22.3.2010, arrived from Brussels by Jet Airways Flight No.9W 225/9.9.2011 vide E-Ticket No.5892863870213 at Chennai Anna International Airport. The detenu after having collected his baggage bearing Tag No.0589 9W557345P and hand baggage passed through the green channel. However, he was intercepted at the Exit by the Air Customs Officers. He was questioned whether he wanted to declare anything to Customs and whether he was carrying any gold or other valuables in his baggage or in his person. The detenu replied in the negative. Not satisfied with the reply the Customs Officer examined the baggage and the hand baggage. But nothing was found.
3. On repeated questioning, the detenu admitted that he had five packets containing 175 gold coins inside his pant pockets. The detenu did not possess any valid licence but produced an invoice dated 8.9.2011 issued by the Gold and Forex International Brussels, Belgium for the purchase of the gold. As the detenue did not declare the gold to the Customs Department, which is violation under the Customs Act, the same was seized by the Customs Officer under Mahazar.
4. His confession statement was also recorded. Since the detenue attempted to pass through the green channel without paying duty and also had given statement voluntarily admitting such possession of gold and valuables imported into India without valid documents, he was arrested on 10.9.2011 and produced before the learned Additional Chief Metropolitan Magistrate, E.O.II, Chennai on the same day.
5. The learned Magistrate remanded the detenu till 23.9.2011. The relatives were informed about the arrest and detention at Central Prison, Chennai. Bail was granted on 29.9.2011 with a condition that the detenu should reside within the Chennai City limit and appear before the Customs Department Chennai daily until further orders.
6. A Notice dated 21.10.2011 was issued to showcause why the gold coins weighing 1395 grams and valued at about Rs.37,21,860/- should not be confiscated under the provisions of the Customs Act. It was stated that by attempting to smuggle 175 gold coins by concealing and non-declaration amounted to smuggling under Sec.239 of the Customs Act and hence liable to be confiscated.
7. Having found the detenu knowingly and consciously attempted to smuggle the said gold coins to India by way of concealment and non-declaration to the customs Department, the proceedings under Sec.3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was initiated.
8. The Government having satisfied that the detenu has indulged in smuggling of goods and therefore, it was necessary to detain him with a view to prevent him from indulging him similar activities in future.
9. While coming to the subjective satisfaction the Government had taken into consideration all facts and materials placed before it and passed detention order on 7.12.2011 which was served on the detenu on 15.12.2011 and the detenu was arrested and detained and lodged at Central Prison, Puzhal, Chennai. The Grounds of detention was served to the detenu on 16.12.2011.
10. Challenging the detention order, the detenu himself has filed the present petition to secure and set him at liberty invoking the jurisdiction of this court under Article 226 of Constitution of India.
11. Challenging the order of detention, Mr.M. Abdul Nazeer, the learned counsel for the detenu submitted the following two contentions:
i) the detenu is an Indian born Singapore citizen and he was doing business in Singapore. He has visited many countries in connection with his business and he went to Brussels on 7.9.2011. Since his daughter's marriage was fixed at Singapore, he purchased the gold coins of 175 numbers for taking them to Singapore. As per the original air ticket, his flight was confirmed from Brussals to Singapore via Chennai on 9.9.2011. He would be arriving at Chennai at 11.30 p.m on 9.9.2011 and would be taking the connecting flight from Chennai to Singapore at 1.15 a.m at the early hours of 10.9.2011. When he reached the Airport at Brussels on 9.9.2011, he was informed that his connecting flight at Chennai was advanced due to the launching of Rocket from Sriharikotta and had already departed and he was accommodated at the next possible flight on 11.9.2011. He was also informed that boarding pass will be issued at Chennai. Therefore, he was left with no option except to stay at Chennai for one day and fly back to Singapore on 11.9.2011.
On reaching Chennai, in fact the detenue went to the customs counter to declare the gold but however, they have detained and arrested him. A statement was recorded compulsively. However, in the adjudication proceedings, the Additonal Commissioner had considered the submissions and found the passenger was a foreign passport holder; had a document to prove legal purchase of the gold; had stated gold coins were purchased for his daughter's marriage; though the passenger did not make a declaration the request for grant of re-export, deserve consideration and thereby a fine and penalty was imposed with an option to redeem the gold for re-export. This order was passed on 21.11.2011 prior to passing of detention order and though the detaining autority had considered the order, but had not applied his mind that the detenu was not attempting to smuggle the gold into India. Therefore, the subjective satisfaction is vitiated.
ii) In the grounds of detention, the detaining authority has observed that there is a likelihood of the detenu indulging in such prejudicial activities in future even though his passport was impounded in the Court. When the detaining authority himself has stated that the passport of the detenu had been impounded there is non-application of mind on the part of the Detaining Authority as to how the detenu could indulge in smuggling activities in future.
The learned counsel further submitted that when the passport had been impounded there is absolutely no possibility for the detenu indulging in smuggling activities and there is no subjective satisfaction for the detaining authority to come to the conclusion that the detenu will indulge in such activities in future. The learned ocunsel relied on the decisions reported in 2010(1) SCC 609(GIMIK PIOTR Vs State of T.N) and (ii) 2010 AIR SCW 2170 (Moulana Shamshunnisa vs Additional Chief Secretary). The learned counsel also relied on an unreported judgment of this court passed in HCP No.1328 of 2011 dated 19.1.2012.
12. On the aforesaid submission, the learned Additional Public Prosecutor and the Standing counsel for the 2nd respondent were heard.
13. The learned Additional Public Prosecutor submitted that in the counter filed by the respondent it has been categorically stated that though the passport has been impounded, the involvement of the detenu in any activity related to smuggling in the future cannot be ruled out.
14. We have carefully considered the submissions made on either side and perused the materials on record.
15. The facts are not denied. There is no dispute that the detenu, who is a Singpore citizen, holding a Singapore passport, traveled from Brussels to Chennai on his way to Singapore. According to the detenu originally he was only a transit passenger and there was no question of declaring any valuable or gold as there was no possibility to come out of the Customs without declaration. However, he was scheduled to fly to Singapore only on the next day, and according to the Customs Department, without declaring the possession of 175 gold coins he attempted to pass through the green channel.
16. On the contrary, it is the case of the detenu that he was about to declare, but he was detained. Since adjudication proceedings have already been concluded and order has been passed on 21.11.2011, the gold coins which the detenu brought was confiscated for non-declaration. However, an option of redemption on payment of penalty has been ordered to the detenu.
17. In the grounds of detention, the Detaining Authority has considered the order dated 21.11.2011. Therefore, the contention that the Detaining Authority has not considered the adjudication order cannot be countenanced as the ultimate order is to the effect of confiscating the gold.
18. However, while considering the likelihood of the detenu in indulging the prejudicial activities in future the detaining authority had stated as follows:
5. The State Government have also aware of the fact that you have been released on bail. The State Government have satisfied that there is likelihood of your indulging in such prejudicial activities in future, even though your passport is impounded in the Court and that further recourse to normal criminal law would not have the desired effect of effectively preventing you from indulging in such prejudicial activities. Thus, there is a compelling necessity to prevent you from indulging in the smuggling of goods. The State Government, therefore, consider the it is necessary to detain you under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 with a view to preventing you from indulging in the smuggling of goods in future.
19. In the decision reported in 2010(1) SCC 609 GIMIK PIOTR Vs State of T.N) (referred to supra) the detention of one GIMIK PIOTR under Section 3(1)(i) of the COFEPOSA Act was challenged. In the order of detention passed against GIMIK PIOTR it had been mentioned as follows:
6. The State Government is also satisfied that on the facts and material mentioned above, if you are released on bail, you will indulge in such activities again and that further recourse to normal criminal law would not have the desired effect of effectively preventing you from indulging in such activities though your passport has been submitted in the court. The State Government, therefore, considers that it is necessary to detain you under Section 3 (1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from indulging in the smuggling of goods in future It was contended before the Apex Court by the Detaining Authority that the mere retention of the passport of the detenu will not be enough as the preventive detention order has been passed so as to prevent him from abetting the smuggling of goods by staying in the country. The said contention had been accepted by the High Court, but it was not accepted by the Supreme Court. The Apex Court has observed that, if that be the position, the order of preventive detention could have been passed under Section 3(1)(ii) of COFEPOSA Act, as it authorities the State Government to pass a preventive detention order to prevent him from abetting smuggling of goods and the argument advanced by the State Government is devoid of any logic. Ultimately, in paragraph 35, the Apex Court has held as follows:
35. In our considered view, the submission of the learned counsel for the appellant requires to be accepted. In the instant case as the facts reveal, that there was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded. Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country. There is higher standard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the fact and circumstances of the case.
The said decision of the Apex Court has been followed in the subsequent decision of the Apex Court reported in 2010 AIR SCW 2170 (referred to supra)
20. Following the above said decisions this Court in an earlier occasion has considered a detention order of an Indian National by order dated 19.1.2012 in HCP No.1328 of 2011 (Order delivered by K. MOHAN RAM,J.,) and found that when admittedly the passport of the detenue had been impounded it will not be possible for the detenu to indulge in smuggling activities in future. However, the facts and circumstances of the case reported in 2010(1) SCC 609 GIMIK PIOTR Vs State of T.N) cited supra squarely applies to the facts of the present case as the detenu therein is also a Foreign National.
21. Therefore, we are of the considered view that there is no material placed before the detaining authority to show that even though the passport had been impounded there is likelihood of the detenu indulging in smuggling activities in future. In the absence of such acceptable materials to come to the subjective satisfaction the order of detention is vitiated and liable to be set aside.
22. For the aforesaid reasons, the impugned order of detention passed by the first respondent in .G.O.No.SR.1/706-6/2011 Public (SC) Department, dated 7.12.2011, against the detenu is set aside and the Habeas Corpus Petiton stands allowed. The detenu Shaik Rahamathullah S/o Shaik Hassan is directed to be set at liberty forthwith unless his detention is otherwise required in connection with any other case.
(K.M.J.,) (G.M.A.J.,)
27-03-2012
sr
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To
1. The Secretary to Government of Tamil Nadu
Public (Law and Order) Department,
Secretariat, Chennai 600 009
2. The Secretary to Government of India
Ministry of Finance,
Department of Revenue (COFEPOSA Unit)
Central Economic Intelligence Bureau
Janpat Bhavan, B Wing, 6th floor,
Janpat, New Delhi-110 001
3. The Superintendent of Central Prison,
Puzhal, Chennai-600 066
K. MOHAN RAM,J.,
AND
G.M. AKBAR ALI,J.,
sr
HCP No.7 of 2012
27-3-2012