K.Thilagavathi vs The Union Of India Rep. By on 2 July, 2014

[Cites 29, Cited by 0]

Madras High Court

K.Thilagavathi vs The Union Of India Rep. By on 2 July, 2014

The petitioner in H.C.P.(MD).No.215 of 2014 and the petitioner in H.C.P.(MD) No.217 of 2014 are the wife of the detenus respectively and the petitioner in H.C.P.(MD).No.216 of 2014 is the brother of the detenu and they have filed the Habeas Corpus Petitions under Article 226 of the Constitution of India to call for the records relating to the detention orders in F.No.673/24/2013-Cus VIII, F.No.673/23/2013-Cus VIII, and F.No.673/22/2013-Cus VIII, dated 04.02.2014 passed and executed on 08.02.2014 by the second respondent herein and quash the same and direct the respondent to produce the detenus namely R.Kanthasamy @ Kandasamy, aged about 45 years son of S.Rajagopal; G.Maheswaran, aged about 28 years son of C.Govindarajan, and C.Govindarajan @ Sokkupillai Govindarajan before this Court, now detained under Section 3(1) of the COFEPOSA Act in the Central Prison, Trichy and set them at liberty.

2. Since the issue involved in these petitions is one and the same, the petitions are taken up together and disposed of by this common judgment. For convenience sake, the detenus in H.C.P.(MD).Nos.215 to 217 of 2014 are referred as D1 to D3.

3. Brief averments made in the petitions as well as the contentions put forth on behalf of the petitioners by the counsel for the petitioners are as follows:-

3.1 The detenus are innocent persons and they have not committed any offence under the Customs Act or under the FEMA Act. The detenus never indulged in any smuggling and never smuggled any gold at any point of time.

3.2 Further, according to the Department, four persons including the detenus have been arrested on 02.09.2013 for an offence punishable under Section 135(1)(a) and 135(1)(b) of the Customs Act, 1962 for their involvement in the smuggling of 15.255 kgs of gold bars of foreign origin, valued at Rs.4.59 crores to India and subsequently, being transported to Thiruvarur in a Yamaha Motorcyle bearing registration number TN-51-D-0445 for onward transportation to Chennai by road.

3.3. Further, during enquiry Govindarajan (D3) and R.Kanthasamy(D1) have admitted of carrying gold bars of foreign origin and they have concealed the same in their bodies and side luggage box of the said motorcycle. They further admitted that the transportation of smuggled gold from coastal area of Thoppudurai to Chennai.

3.4. Further, G.Maheswaran/D2 admitted in his statement dated 01.09.2013, about the offence of smuggling of gold bars from Srilanka to coastal area of Thoppudurai, accompanying, of his father and his uncle to receive the gold bars of foreign origin sent by Indiran of Srilanka, receipt and transportation of 5 to 10 Kgs of gold on several occasion previously and facilitating the transportation of gold bars upto Thiruvarur bus stand and onward transportation to Chennai.

3.5 Further, the detenus gave statement before the officers on 01.09.2013 and they have been arrested by the respondent on 01.09.2013 at 18.00 hours for contravening the provisions of Customs Act, 1962. Subsequently, they have been produced before the Judicial Magistrate, Thiruvarur on the same day at 11.20 pm. who remanded them up to 16.09.2013. Subsequently, the Sessions Judge, Thiruvarur, granted bail on 21.10.2013 with condition to appear before the DRI, Coimbatore daily until further orders and they should surrender their respective passports before the learned Judicial Magistrate, Thiruvarur. Further, the bail conditions have been modified on 18.11.2013 and 19.12.2013. The detenus have submitted that both the modified orders dated 18.11.2013 and 19.12.2013 have not been placed before the detaining authority while passing the detention order.

The non placement of relevant materials would render the detention illegal. Thus, the detenus have been falsely implicated in the present case. On the basis of the incorrect mahazar and false statement, the detaining authority has passed the detention order against them under COFEPOSA Act.

3.6 The detenus have further submitted that the incident took place on 01.09.2013 and the detention order passed against the detenus only on 04.02.2014 and executed the same on 08.02.2014 by the detaining authority. Thus, there is a delay of 160 days (5 + months) in passing the detention order. The nexus between the date of incident and detention is not maintained and the live link between the date of incident and detention is snapped. Further, the circumstance of the delay in passing the order of detention for over 5 + months is both inordinate as well as one that would conclusively demonstrate that the satisfaction of the detaining authority is not at all genuine and the petitioners would also assert, without the fear of contradiction that they have not indulged in any prejudicial activity in the intervening period. That is also not the case of the detaining authority. The detention orders passed after the inordinate delay have become punitive in nature and the detention orders stand vitiated.

3.7 Further, the detenus have submitted that the officers have recorded their statement by way of third degree method and hence, they retracted their confessional statements through their bail applications on 01.09.2013. The detenus have further submitted that the relevant material i.e. initial remand order neither placed before the detaining authority nor supplied to the detenu. Therefore, the non placement of relevant material has vitiated the detention order. The detaining authority failed to consider the retraction, and rejected the same in writing.

3.8. Further, the detenus have submitted that if the detaining authority, alive to the fact of retraction, would have considered the same and rejected the request of the sponsoring authority and hence, the order becomes invalid as it suffers from non application of mind. Moreover, when the detaining authority considers confession as a main material, holding it as voluntary, he shall, before passing an order, consider whether any retraction has been made prior to the passing of the order, admittedly this has not been done in the present case. The authority or any Court intending to act upon the inculpatory statement, as voluntary one should apply its mind to the retraction and reject the same in writing. The detaining authority should consider the subsequent retraction and awareness of the fact of retraction, must get reflected in the grounds of detention. In fact the vital confessional statement considered to be a voluntary one by the detaining authority has been retracted by the detenus at the earliest possible opportunity, when they preferred the bail petitions on the very next day.

3.9 Further as per the bail order, the detenus have to submit their passport at the time of execution of sureties before the Judicial Magistrate, Thiruvarur, but the sponsoring authority has stated that the passport has been submitted before the Court for the purpose of impounding. The detenus' passport have been seized by the sponsoring authority and the same is under the custody of the Court. Since by seizing the passport, the smuggling of the detenus is foreclosed. But, the detaining authority failed to consider the same while arriving at the subjective satisfaction and hence the detention order is vitiated.

3.10 Further, the detenus have submitted that they have not gone to Srilanka and smuggled the seized gold biscuits by themselves, but, they received the smuggled gold from one Indiran of Srilanka through his agent Viji at Thoppudurai Coastal area, Tamil Nadu, India. But, the detaining authority has passed the detention order under Section 3(1) of the COFEPOSA Act, 1974 against the detenus. If the detaining authority has applied its mind on the material and statement of the detenus, would find that the detenus have only received the smuggled gold from Mr.Indiran of Srilanka through one Viji at the Thoppudurai, coastal area, Vedaraniyam, Nagapattinam District, Tamil Nadu, India and transported to Chennai for monetary consideration of Rs.10 per gram. Thus, it is clearly proved that the detaining authority has not applied its mind on the material, properly and the detaining authority also caused confusion in the mind of the detenus and hence, they could not make an effective and meaningful representation against their detention orders.

3.11 The detenus know only Tamil language and they do not know any other language including English. After passing the detention orders, the detaining authority supplied the grounds of detention and booklet containing the papers pages 1 to 168 on 12.02.2014 at 16.00 hours. But, all the documents are not read over and explained in language known to the deteus. The attesting authority has affixed the seal on the back side of the documents and also stated that all the documents have been explained at a time. Thus, it is clear violation of mandatory requirement guaranteed under article 22(5) of the Constitution of India.

3.12 The detenus have further stated that Supreme Court has categorically stated what principle apply to English will apply Tamil. The detaining authority cannot escape that he applied his mind only in English not in Tamil. The detenus have further submitted that the family members have not properly intimated about the arrest of the detenus. Though the screening committee opinion is a vital and relied upon documents, the same has not been supplied to the detenus along with grounds of detention and hence, the detenus could not make an effective and meaningful representation against the detention orders.

3.13 Further the detenus submitted that while arriving at subjective satisfaction, the detaining authority has come to the conclusion that on the date of seizure, the market value of the 36 foreign marked gold bars totally weighing 15.255 grams of 24 carat purity valued at Rs.4,59,17,550.00 at the rate of Rs.2010 per gram, the detaining authority has relied upon the prevailing market rate of seized gold per gram is Rs.3010, but no materials available before the detaining authority to show that the prevailing market rate of gold and the same is amounting to extraneous consideration. Further, the detaining authority have specifically relied upon the foreign marking of gold biscuits, but they failed to supply the relied upon documents along with grounds of detention. The non supply of relied upon document has vitiated the detention order. Further, the detaining authority has not applied its mind on the material properly and hence. the detention orders are vitiated on this score alone.

3.14 Further, the detenus have submitted that when any order of detention is made by a State Government or by an officer empowered by a Government, the detaining authority shall, within ten days, forward to the Central Government, a report in respect of the order for consideration under Section 3(2) of the COFEPOSA Act. Failure to forward, consider and communicate to the detenus, has vitiated the detention. Further, the total pages of booklet of all the detenu are 168 nos and total pages of grounds of detention 25 + 33 nos (English and Tamil) have been considered and translated by the detaining authority on a single day, thus it is clearly proved that there has been no sufficient time to go through the entire materials for arriving at subjective satisfaction to pass the detention orders against the detenus which clearly shows that the detaining authority has passed the detention order mechanically and hence, the detention is vitiated on this score also.

3.15 The detaining authority being known of the fact that the detenus are conversant only in Tamil language, erred in furnishing translation copies of only a chosen few. But, failed to supply the pages 145 to 150. The same is contrary to the law of the land and the same has hampered the right of the detenus to make a diligent study of the case against them and also to make an effective and meaningful representation. The detenus requested the authority for translated copies and passport, but the authority failed to comply with the request and the same has vitiated the detention.

3.16 Further, the detenus submitted that if any document came into existence subsequent to the detention order and are placed before the Advisory Board or Confirming authority, the copy of those documents are to be supplied to detenus so as to enable them to make an effective and meaningful representation. The detenus sent a pre-detention representation to the Law Minister, Law department, State of Tamilnadu, Fort Saint George, Secretariat and Chennai on 04.11.2013 by speed post with acknowledgement due. Though the same has been acknowledged by the Law Department, it has neither placed before the Detaining Authority nor considered.

3.17 Further, the detenu submits that aggrieved by the detention orders the detenus sent representation dated 24.02.2014 and the same have been forwarded through counsel by speed post on the same day with covering letter addressed to jail authorities wherein he requested them to get signature from the detenus and forward the same to the 1) Detaining authority 2) Central Government and 3) Advisory Board who are the concerned authorities empowered to consider the same. The said representations have been forwarded and received by the concerned authorities. But they failed to consider the same independently and hence, the non consideration of the detenus' representation vitiates the detention order.

4. On the other hand, in counter affidavit filed on behalf of the respondents 1 and 2 and learned Counsel appearing for the respondents 1 and 2 it is stated as follows;-

4.1 On surveillance by the officers of DRI, in the early hours of 01.09.2013 (at about 05.30 hrs) a Yamaha motorcycle bearing registration No.TN- 51D-0445 has been identified, but attempt of the officers to intercept the said motorcycle failed, which has been apprehended after chasing the same.

4.2 Further, on enquiry, the person driving the bike identified himself as Shri C.Govidarajan @ Sokkupillai Govindarajan (D3) and the other person accompanying identified himself as Shri R.Kanthasamy @ Kandasamy (D1). Initially both denied of carrying any contraband/gold bars in their motor cycle. However, on persistent enquiry and questioning by the officers, C.Govindarajan @ Sokkupillai Govindarajan(D3) and R.Kanthasamy @ Kandasamy(D1) admitted carrying gold bars of foreign origin by concealing in the side luggage box of the motorcycle and a small black colour bag, with markings "RUF and TUF" containing three packets wrapped with brown self-adhesive tapes, has been found there.

4.3 Further, on enquiry, Shri C.Govindarajan @ Sokkupillai Govindarajan(D3) stated that these gold bars have been smuggled into India from Sri Lanka through a boat via Thopputhurai Coast and his son G.Maheswaran (D2) who would normally proceed to Tiruvarur by bus and let them know whether the route viz., from Thopputhurai to Tiruvarur is clear without any check by any enforcement agencies on the way and wait for them at Tiruvarur Bus stand. The said G.Maheswaran(D2) after crossing the Vettaikaran Iruppu Checkpost and after confirming the absence of any enforcement agencies in the checkpost, informed the same to the other detenus from his mobile number.

4.4. Further, on examination, all the five brown colour adhesive tape wrapped packets have been found to contain 34 numbers of gold bars of different sizes/weights, which have been assayed and certified by Shri Pakkirisamy Pathar, government approved gold assayer, to be of 24 carat purity totally weighing 15.255 Kgs. and valued at Rs.4,59,17,550/- (@ Rs.3,010/- per gram as on the date of seizure).

4.5 Further, Kanthasamy @ Kandasamy, in his statement dated 01.09.2013, has stated that his sister's husband C.Govindarajan @ Sokkupillai Govindarajan(D3) has a friendship with one Indiran of Sri Lanka in connection with smuggling activities and Indiran used to smuggle the gold bars coming by boat to the shore at Thopputhurai and hand it over to them and that his sister's husband C.Govindarajan @ Sokkupillai Govindarajan and himself used to receive the same and his sister's son Shri G.Maheswaran(D2) used to guard them from a distance and that normally his sister's son(D2) used to travel by bus from Vedaranyam to Thiruvarur early morning and monitor the check post at Vettaikaran Iruppu. G.Maheswaran(D2) used to contact the said parties and on arrival they would hand-over the smuggle gold to them. After making enquiry, C.Govindarajan,(D3) has been taken to Thiruvarur Customs Office along with his son G.Maheswaran(D2).

4.6 Further, the detenus deliberately indulged in smuggling of gold bars at unauthorised unloading points to escape the eyes of law and also to defraud the exchequer. Considering the nature and gravity of offence, the well planned manner in which the detenus have engaged themselves in such prejudicial activities of smuggling and their role therein, their potentiality and propensity to indulge in such prejudicial and smuggling activities in future is very high. Thus, unless checked, they will again indulge in prejudicial activities of smuggling. The detention orders have been executed on them on 08.02.2014 and they are lodged in Central Prison, Trichy.

4.7 Further, Reasonable time taken between the date of seizure of gold and the passing of detention order reinforces the fact that the detention orders have not been passed in haste and it has only been issued after thorough examination, justifying the need for preventive detention. To reiterate, but for the detention of the detenus, they would have continued to indulge in smuggling of gold bars, in as much as admittedly they along with others have smuggled around 5 to 10 kg of gold bars twenty times before the seizure. This being the case, when the detenus allowed to viz., Indiran and Viji still live and not apprehended, there is a strong likelihood that, if let free, the detenus would have again indulge in smuggling of gold bars from Sri Lanka.

4.8 The detention orders and grounds of detention have been prepared by the detaining authority independently after arriving at subjective satisfaction on the need for detaining the detenus. Therefore, the contentions raised here are without any basis and deserve to be rejected. The representations have been considered by the appropriate authority and result of consideration has also been communicated vide memorandum F.No.686/304/2014-Cus, VIII dated 13.03.2014 (by Detaining Authority) and F.No.686/304/2014-Cus. VIII (Pt.) dated 18.03.2014, which have been duly acknowledged and served to the detenus as communicated by the Jail Superintendent, Central Prison, Trichy. Therefore, R1 and R2 sought for dismissal of the present petitions.

5. Further, in the counter affidavit filed by the third respondent and learned Counsel appearing for the third respondent it is submitted that detenus have been detained under Section 3(1) of Conservation of Foreign Exchange & Prevention of Smuggling Activities (COFEPOSA) Act, 1974 on 08.02.2014 at 09.30 hours as per the Government of India detention order F.No.673/24/2013, cus VIII, F.No.673/23/2013-Cus VIII and F.No.673/22/2013-Cus VIII, respectively dated 04.02.2014. Further, the detention of the detenus have been informed to their relatives on 08.02.2014.

5.1 Further, the grounds of detention and booklet have been read over and explained to the detenus in their own language by the Additional Superintendent of Prisons and also they received the documents, after explained, by the Additional Superintendent of Prison with due acknowledgement.

5.2 As per the order of No.673/23/2013 Cus VIII dated 28.04.2014 of the Assistant Director General (COFEPOSA), Government of India New Delhi, the Government have confirmed the order of detention and directed that the detenus be detained for a period of one year from the date of detention.

6. This Court perused the materials available on record and based upon the submissions of both sides, the following points arise for consideration:-

1. Whether the petitioners are entitled to get the above mentioned relief, for the reasons stated in the present petitions?

2. Whether the orders of preventive detention have been passed on proper and valid grounds?

7. H.C.P.(MD) No.215 of 2014 is field by K.Thilagavathi, W/o.R.Kanthasamy @ Kandasamy. H.C.P.(MD) No.216 of 2014 is filed by P.Rajendran, B/o.Maheswaran. H.C.P.(MD) No.217 of 2014 is filed by G.Meenachi, W/o.C.Govindarajan.

8. It is the case of the respondents that the petitioners have indulged in smuggling gold bars, weighing 36 foreign marked gold bars totally weighing 15.255 grams of 24 carat and the said gold bars have been seized from them along with the bike used for transportation. Further, in the counter affidavit, the second respondent has categorically admitted that the remand application, dated 01.09.2013 has been submitted to the Court of Judicial Magistrate, Thiruvarur, and the learned Judicial Magistrate, has passed the remand order, on 02.09.2013. Further, on a perusal of the remand order enclosed at page No.26 of the Additional Typed Set of Papers filed on behalf of the petitioner in H.C.P.(MD) No.215 of 2014, dated 07.04.2014, the learned Judicial Magistrate, has categorically made an endorsement as follows:-

"All the four accused produced on 02.09.2013 at 11.20 a.m. Accused complained that A2 was assaulted by Customs Officers."

9. In such circumstance only in the reply to show cause notice at page No.22 of the I Additional Typed Set of Papers, dated 11.06.2014 filed on behalf of the petitioner in H.C.P.(MD) No.217 of 2014, it is clearly pointed out that the accused have made a complaint of ill-treatment before the learned Judicial Magistrate, Thiruvarur, at the time of remand and the Mahazar and statement are involuntary and false and they do not reflect true facts. Subsequently, the Sessions Court, Thiruvarur, has granted bail on 21.10.2013 with condition to appear before the DRI, Coimbatore, daily until further orders. Further, the bail conditions have been modified on 18.11.2013 for appearance once in a week. Furthermore, the bail conditions are further modified to make appearance on every first working day of every month, by order, dated 19.12.2013.

10. The second respondent has also admitted the said details in his counter affidavit. However, only on 01.11.2013, as per the Time Chart showing the chronological sequence of events filed on behalf of the second respondent in the typed set of papers, a proposal has been sent to CEIB and thereafter, only on 08.02.2014, detention orders, dated 04.02.2014, issued against the said C.Govindarajan @ Sokkupillai Govindarajan, G.Maheswaran and R.Kanthasamy @ Kandasamy. In such circumstances only, it has been rightly pointed out on behalf of the petitioners that live link between the date of incident and the detention, is snapped and even the allegation as per the second respondent, is to the effect that the gold bars have been seized during local transport only. Further, it has been categorically pointed out in the reply notice sent on behalf of the detenus, dated 13.03.2014, that the coercion, threat and physical assault made out by the accused before the learned Judicial Magistrate and taken note of by the learned Judicial Magistrate at the time of remand and there has been an information only of transport of gold through the point at which, the officials laid the siege.

11. On a careful scrutiny of entire records, it is found that there is certain legal force in the said contentions of the petitioners.

12. Further, in the reply notice, dated 13.03.2014, it is clearly pointed out on behalf of the detenus that the Officers have waited near Alangudi Bridge, for two unknown persons riding in an unknown bike and also, the officials have not apprehended the alleged boat operator at the time of the purported transfer, inspite of the information available and therefore, the official version has to be analaysed with deeper scrutiny of judicial touchstone and also the fact of not carrying out the seizure of boat, at the shore and place of occurrence of such transfer, would lead to the logical conclusion that the goods classified as smuggled gold only by use of force and obtaining statements against the will of the said detenus.

13. On a careful scrutiny of the entire materials on record, it is found that there are material force in the said contention of the petitioners. Further, it is clearly pointed out in the said reply notice that any admission, contrary to the provisions of law, cannot be accepted by any Court of law for arriving at the legitimate conclusion.

14. Further, in the reply notice sent on behalf of the detenus, it is clearly pointed out that the officials have used third decree methods and the detenus have retracted their confessional statements through their bail applications, on 01.09.2013 itself and the accused have made complaint about the assault made by the Customs Officers and the same has been recorded by the learned Judicial Magistrate, Thiruvarur, on 01.09.2013 itself, at the the time of ordering for remand. Further, in the counter affidavit, the second respondent has stated that the Sessions Court, Thiruvarur, vide order dated 23.10.2013, has modified the conditional bail order and the detenus Sri Lankan contacts viz., Shri Indiran and Viji, still live and not apprehended. Further, in the show cause notice enclosed at page No.16 of the I Additional typed set of papers filed by the petitioner in H.C.P.(MD) No.217 of 2014, the second respondent has also stated that for the said Shri Indhiran, Sri Lank (Through Notice Board), Shri Viji, Sri Lanka (Through Notice Board) and Shri Madan Lal, Chennai (Through Notice Board) only served, and even the full address has not been furnished for issuance of the said show cause notice. Further, it is clearly pointed out in the show cause notice itself that the said Govindarajan, Maheswaran and Kanthasamy used to smuggle the gold bars to Chennai and hand over the same to Shri Madan Lal, as instructed by Shri Indhiran of Sri Lank and used to get the commission of Rs.10/- per gram from him. In such circumstance only, in the reply notice on behalf of the detenus, it has been pointed out that the detenus have alleged to be involved in only local transport of the gold bars. Further, it has been pointed out by the second respondent in the counter affidavit that the said Govindarajan has been previously arrested under the COFEPOSA Act, 1974 & NSA 1980. However, the second respondent has not furnished the relevant details of the said proceedings. For, not furnishing the relevant records also, the second respondent has not furnished the convincing reasons. Further, in the show cause notice also, the second respondent has only pointed out that the said Govindarajan, Maheswaran and Kanthasamy would go to the Thopputhurai Coast and receive the smuggled gold bars brought from Sri Lanka by Shri Viji of Sri Lanka by boat at night and hand over the same to Shri Madan Lal and get the commission of Rs.10/- per gram from him.

15. Further, the second respondent has stated in the counter affidavit that the Tamil translated copies of documents have been served to the detenus on 12.02.2014 i.e., within the mandatory period of five days prescribed under Section 3(3) of the COFEPOSA Act, 1974. However, the third respondent, namely, the Superintendent of Central Prison, Trichy, in his counter affidavit has stated that the grounds of detention and booklet have been read over and explained to the detenus in their own language by the Additional Superintendent of Prisons and also they received the documents after explained by the Additional Superintendent of Prisons with due acknowledgment. However, appropriate affidavit of the said Additional Superintendent of Prisons, has not been filed, though the petitioners have specifically pointed out in the petition and also in the reply notice that relevant documents and also materials have not been supplied to the detenus in the language known to them and explained to them by the Authorities.

16. Further, in the petition, it has been clearly pointed out that the vital and relied upon documents have not been supplied to the detenus in the language known to them and therefore, the detenus could not make an effective and meaningful representation against the detention order.

17. Further, it is specifically pointed out in the petition that the incident took place on 01.09.2013 and the detention order has been passed against the detenus only on 04.02.2014 and executed the same on 08.02.2014 by the detaining authority and there is a long delay of 160 days in passing the detention order and therefore, the nexus between the date of incident and detention is not maintained and the live link between the date of incident and detention is snapped. Further, the second respondent has passed the detention order to detain the detenus for one year with effect from 08.02.2014. In such circumstances only, there is significant force in the said submission made in the petition regarding the long delay of 160 days in passing the detention order by the Detaining Authority. Further, it is found that there is adequate force in the submission of the petitioners to the effect that the detention order has been passed after inordinate delay and therefore, the said detention order has not been passed in accordance with law. Further, it is clearly pointed out in the petition that the detenus have in fact retracted their confessional statements at the earliest possible opportunity and the said fact has not been considered by the detaining authority. Further, in the petition, the petitioners have specifically pointed out that the attesting authority has affixed the seal on the back side of the documents and also stated that all the documents have been explained to the detenus in the language known to them at 11.00 a.m. on 12.02.2014 and the said averment of the attesting authority is not possible, as the booklet contains 270 total pages and there is clear violation of mandatory requirement under the guarantee given under Article 22(5) of the Constitution of India. On a perusal of the records, it is found that there is legitimate force in the said contention of the petitioners and in the petition, the petitioners have categorically stated that the Hon'ble Supreme Court categorically stated what principle apply to English will apply Tamil and the sponsoring authority has failed to inform the family members as per the Supreme Court guidelines except saying that the detenus permitted to inform the family members through phone. Further, in the petition, the petitioners have specifically stated that the detaining authority has not applied his mind on the material properly and hence, the detention order is vitiated on that score also.

18. Further, in the petition, the petitioners have correctly pointed out that the total pages of booklet of the detenus are having 270 pages and also all the said pages alleged to have been translated and explained by the detaining authority on a single day, and therefore, it is clearly established that there is no sufficient time to do that. Further, it is also not possible to go through the entire records, at the same time.

19. Further, in the petition, the petitioners have categorically pointed out that the detaining authority has failed to supply all the relevant records to the detenus in the language known to them and the same is contrary to the laws and the same as hampered the right of the detenus to make a diligent study of the case against them.

20. Furthermore, in the petition, the petitioners have stated that the representation, dated 24.02.2014, has been sent to concerned authorities, but they have failed to consider the same independently and hence, the non- consideration of the detenus' representation also vitiates the detention order. In the detention order, dated 28.04.2014, enclosed at page No.6 of the common typed set of papers filed on behalf of the second respondent, it is clearly pointed out to detain the detenu, viz., G.Maheswaran for a period of one year from the date of his detention i.e., from 08.02.2014. However, as rightly pointed out by the petitioners that the detaining authority has taken 160 days to pass the impugned order after the alleged date of incident. Further, in the detention order and grounds of detention in Tamil enclosed with the documents, dated 12.02.2014 filed on behalf of the petitioners, it is clearly pointed out that the Superintendent of Central Prison, Trichy, has to serve copy of the detention order and grounds of detention, to the detenus and also to explain, to the detenus in the language known to them and thereafter only, the acknowledgement has to be obtained and returned to the Authorities within five days. However, in the counter affidavit, the third respondent, namely, the Superintendent of Central Prison, Trichy, has stated that only the Additional Superintendent of Prisons has read over and explained to the detenus in their own language and the detenus received the documents after explained by the Additional Superintendent of Prisons with due acknowledgement. However, no appropriate affidavit has been filed, to establish the said details, though the said averment has been clearly denied by the petitioners in the present petitions.

21. The learned counsel appearing for the petitioners has drawn the attention of this Court to the following decisions:

(i) In the case of Vijay Kumar Dharna v. Union of India reported in 1990 Supreme Court Cases (Cri) 247, the Hon'ble Apex Court has specifically held as follows:

"... The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Article 22(5) of the Constitution".

(ii) In the case of Kutbudeen Ali Bhoy v. State f Tamil Nadu represented by Secretary to Government, Public (S.C) Department, Fort St. George, Madras 9 reported in 1990 L.W.(Crl) 169, this Court has held as follows:

"... Therefore, on the basis of the above interpretation given to Section 3(1) of the act, we have to come to the conclusion that Section 3(1) sub- clause(i) of the Act is not attracted".

(iii)In the case of Rengashamy Sasiharan v. State of Tamil Nadu, rep. by the Secretary to the Government, Public (SC) Department, Chennai and Others reported in (2008)2 MLJ (Crl.)816, the Division bench of this Court has categorically stated as follows:

"In case of preventive detention it is absolutely necessary to communicate the grounds of detention to the detenu in clear and unambiguous terms giving as much particulars as will facilitate making of an effective representation in order to satisfy the detaining authority that the order is unfounded or void".

(iv)In the case of Sukat Ali Biswas v. State of West Bengal and Ors. Reported in 1976 CriLJ 28, the Calcutta High Court has pointed out as follows:

"... From the foregoing it is evident that you have been engaging in transporting smuggled goods and unless prevented you are likely to act in similar manner in future".

(v)In the case of Yumnam Mangibabu Singh v. State of Manipur and Others reported in AIR 1983 Supreme Court 300, the Hon'ble Supreme Court has specifically held as follows:

"Non-furnishing of copies prevented detenu to make effective representation and hence violated Art.22(5) of Constitution".

(vi)In the case of Powanammal v. State of Tamil Nadu and another reported in AIR 1999 Supreme Court 618, the Hon'ble Apex Court has categorically held as follows:

"Order of remand in English relied upon by detaining authority to reach subjective satisfaction - Non-supply of Tamil version of said order to detenue as she could not understand English - Causes prejudice to her - Her continued detention, held, illegal".

(vii)In the case of Remya and Another v. State of Tamil Nadu rep. by Secretary to Government, Public (SC) Department, Chennai 600 009 and Another reported in (2008)2 MLJ (Crl) 379, this Court has pointed out as follows:

"It is well settled that the right to make representation is an integral part of the fundamental right under Article 22(3) of the Constitution of India and such right cannot be denied unjustly or without sufficient explanation".

In this case also, it is found that the respondents have not furnished the relevant records to establish that only after explaining all the documents in the language known to the detenus, the acknowledgments of serving, of the same, have been taken, which is in conformity with the requirement of Article 22(5) of the Constitution read with Section 3(3) of the COFEPOSA Act, 1974. Further, the respondents have also not furnished the convincing and acceptable reasons, for not complying with the said important duty in accordance with law.

22. Further, in the case of Roshan Beevi and others v. Joint Secretary to Government of Tamil Nadu and others reported in 1984 Crl.L.J.134, the Full Bench of this Court has held as follows:

"... But this does not mean that the Customs Officials can deviate from the legal path and over-step the legal restraints in their effort to curb the activities of the individuals believed to be engaged in committing criminal offences, and act in an unbridled manner according to their whims and fancies on an assumption that their powers are unlimited and they are free to adopt and arbitrary, fantastic and oppressive procedure which will result in the abuse of their powers. It is true that the procedural law protects the legal rights of the suspected offender by placing numerous restraints on the power of the police or the customs officials, as the case may be, but it is felt by many that the safeguards are too often proved to be a myth rather than a reality. Therefore, the Customs Officials when acting under the provisions of the Customs Act should see that the procedural safeguards which are the indispensable essence of the liberty of a citizen are not impaired in any manner". (underlined for emphasis) In the present case, also, it is pertinent to point out that the respondents when acting under the provisions of the Act, have not established that the procedural safeguards, which are the indispensible evidence of the liberty of the citizens are not impaired in any manner, by producing appropriate and relevant records.

23. Further i) in the case of Kumar Soni v. Union of India reported in 1992 L.W.(Cri.)170, this Court has held as follows:

"Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, S.3(1) - Detaining Authority not being alive to the fact of retraction of the confession by the detenu in his bail application - Application of mind whether can be inferred from the non-use of the word "voluntary" - Distinction between "expression of reaction" and "awareness of fact' - Awareness of the fact of retraction must get reflected in the grounds of detention - Order of detention set aside".

ii) Further, in the case of G.Balaji and Others v. State of Tamil Nadu rep. by Secretary to Government, Public (SC) Department, Fort St. George, Chennai and Others reported in (2007)1 MLJ (Crl) 663, the Division Bench of this Court has held as follows:

"A perusal of the grounds of detention clearly shows that the Detaining Authority failed to record his opinion on the inculpatory statement and the rejection of retraction letter. In similar circumstances, the Courts have repeatedly held the detention order is vitiated".

iii) Furthermore, in the order passed in H.C.P.No.292 of 2008 (Samsath Begum v. State of Tamil Nadu represented by the Secretary to the Government Public (SC) Department, Fort St. George, Chennai - 600 009), the Division Bench of this Court has categorically held as follows:

"In the decision in Arun Kumar Soni v. Union of India represented by Secretary to Government, Ministry of Finance, Department of Revenu, New Delhi reported in 1992 L.W.(Crl.) 170, a Division Bench of this Court held that the detaining authority should be alive to the fact of retraction of confessions when confessions are taken not of to arrive at the subjective satisfaction".

In the case on hand also, the respondents have not established with help of the materials on record, that there is a live nexus between material on the basis of which the subjective satisfaction of the detaining authority has been arrived at, as against the detenus, particularly, in the light of the above mentioned endorsement of the Judicial Magistrate at the time granting remand on 01.09.2013 that the accused have complaint about the customs official's assault on the detenus and also the retraction by the detenus, when the bail applications preferred, on the very next day, and also, at the earliest possible opportunity.

24. Further, i) In the case of Adishwar Jain v. Union of India and Another reported in (2007)1 Supreme Court Cases (Cri) 464, the Hon'ble Apex Court has specifically held as follows:

"Preventive Detention - Detention Order - Delay in passing - Must be sufficiently explained - Lapse of four months between proposal for detention and order of detention not explained - Detention order liable to be quashed".

ii) Further, in the case of A.Sowkath Ali v. Union of India & Ors reported in JT 2000(8) SC 385, the Hon'ble Apex Court has categorically held as follows:

"But once the Sponsoring Authority having chosen to place the confessional statement, then it was incumbent on it to place the retraction also made by them. In our considered opinion, its non-placement affects the subjective satisfaction of the Detaining Authority".

iii) Furthermore, in the case of G.Kalaiselvi v. State of Tamil Nadu rep. by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Chennai 600 009 and Another reported in (2007)2 MLJ (Crl) 1841, this Court has held as follows:

"Further, delay in communicating result of representation also has effect of vitiating order of detention - Impugned order quashed - Petition allowed".

In the present case also, it is seen that the detention orders have been passed by the Detaining Authority after 160 days from the date of the incident and the impugned detention orders have been passed for the period of one year and the respondents have not furnished the sufficient, convincing and acceptable reasons for the said long delay.

25. Further i) in the case of Karuppalagu v. The State of Tamil Nadu, represented by Secretary to Government, Prohibition and Excise Department, Madras and another reported in (2004)M.L.J. (Crl.)945, this Court has categorically held as follows:

"Non-supply of remand order relied upon to detenu - Order of detention liable to be set aside".

ii) Also in the case of John Martin v. The State of West Bengal reported in [1975]3 S.C.R. 211, the Hon'ble Apex Court has held as follows:

"It is indisputable on a plain reading of S.8(1) that the representation that may be made by the detenu is to the appropriate Government and it is the appropriate Government which has to consider the representation. This, however, does not mean that the appropriate Government can reject the representation of the detenu in a casual and mechanical manner".

In the present case also, the respondents have not established that the representation of detenus have been considered in the proper way and also in accordance with law.

26. The learned Senior Standing counsel appearing for the respondents 1 and 2 has drawn the attention of this Court to the decision in Biswanath Bhattacharya v. Union of India and Others reported in (2014) 4 Supreme Court Cases 392, wherein the Hon'ble Apex Court has held as follows:

"Ratio of Ajantha, (1976)1 SCC 1001 does not lay down a universal principle that whenever a statute requires some reasons to be recorded before initiating action, the reasons must necessarily be communicated - Maintenance of Internal Security Act, 1971 - S.3 - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, S.3".

However, the above mentioned citation is not helpful to the contentions made on behalf of the respondents, as the respondents are bound to pass the detention orders, only on cogent material and also in accordance with the provisions of the Act, and also, in conformity with the requirement of Article 22(5) of the Constitution.

27. Further, it useful to refer the following citations:-

i) Kamleshkumar Ishwardas Patel Vs. Union of India and Others [JT 1995 (3) S.C. 639], the Hon'ble Supreme Court has specifically held as follows:

"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 jealously watched and enforced by the Court."

ii) Kasthuri V. District Collector and District Magistrate {(2009) 2 MLJ (Crl) 248}, wherein it is held as follows;-

"As per various decisions of the Hon'ble Apex Court, the following factors are considered as violation in preventive detention cases:

a) Non-intimation of the detention order as to any of the family members or friends within a reasonable time.

b) Delay in considering the representation made by the detenu or any other person interested, on behalf of the detenu.

c) Non-supply of copies of material documents relied on by the detaining authority.

d) Furnishing illegible copies of documents, so as to prevent detenu from making effective representation under the Act.

e) Non-furnishing of copies translated in the language known to the detenu for making effective representation.

f) Non application of mind by detaining authority in having subjective satisfaction while passing the order."

iii) G.Kalaiselvi Vs. The State of Tamil Nadu (2007(5) CTC 657), a Full Bench of this Court has held that it is well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity of making a representation and such right of the detenu, obviously, encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay, and the result of such representation should also be communicated without any such delay.

iv) Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 the Hon'ble Supreme Court has held as follows:-

"The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible. ....................

When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5)."

v) In A.C.Razia v. Government of Kerala A.I.R.2004 S.C.2504), wherein it is held that when the documents which formed the basis of subjective satisfaction of the detaining authority is required to be supplied to the detenu so that he can make proper representations, if such documetns are not in the language known to the detenu, translated copies thereof should be supplied.

28. Having considered the facts and circumstance of the present case and the submissions of the petitioners raised in the petitions, it is seen that the citation relied on by the learned counsel for the respondents 1 and 2 is not applicable to the facts and circumstance of the case and taking note of the ratio laid down by the judgments mentioned herein above, this Court is of the view that the impugned detention orders have to be set aside, for the above mentioned facts and circumstance and reasons.

29. In the result, the impugned detention orders in F.No.673/24/2013-Cus VIII, F.No.673/23/2013-Cus VIII and F.No.673/22/2013-Cus VIII, respectively dated 04.02.2014 passed by the second respondent detaining the detenus namely R.Kanthasamy @ Kandasamy, G.Maheswaran and C.Govindarajan @ Sokkupillai Govindarajan are quashed and the Habeas Corpus Petitions are allowed. The above named detenus are ordered to be set at liberty forthwith, unless their custody is required in connection with any other case.

TO THE HONOURABLE MR.JUSTICE A.SELVAM

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