Madras High Court
Mrs. Seematti vs Secretary, Govt. Of T.N., Home Deptt. ... on 12 August, 2004
Equivalent citations: 2005CRILJ738
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. The petitioner is the wife of the detenu by name Rahamathullah Nainar Sulthan. He was detained and kept in Central Prison, Chennai by order dated 29-1-2004 under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA Act) (Central Act 52 of 1974). The said order came to be passed with a view to prevent him from smuggling goods in future.
2. Heard Mr. Habibullah Basha, learned senior counsel for the petitioner, Mr. Abudu Kumar Rajaratinam, learned Government Advocate (Criminal Side) for the first respondent and Mrs. Vanathi Srinivasan for respondents 2 and 3.
3. After taking us through the grounds of detention and other materials, the learned senior counsel for the petitioner has raised the following contentions:
"(i) Neither the petitioner nor the detenu was supplied relevant documents relied on by the detaining authority. According to the petitioner, among the documents, the contents of one side of a "Chit," which was recovered and relied on by the detaining authority has not been supplied in spite of her specific request; hence the detention was not in accordance with the procedure contemplated under law;
(ii) There is variation between English and Tamil version of grounds of detention, which caused confusion and prevented the detenu from making an effective representation;
(iii) Though the detenu was arrested on 16-1-2004 and produced before the Court on 17-1 -2004, the fact of arrest was not communicated to his relatives till 19-1-2004, which is contrary to the mandate of Supreme Court in D. K. Basu's case
4. On the other hand, Mr. Abudukumar Rajaratinam, learned Government Advocate (Criminal Side) would submit that all the required and relied on documents were supplied to the petitioner/detenu and copy of the "Chit" which is not the basis for detention order need not be supplied to the detenu or the petitioner. According to him, based on the voluntary statement, which is admissible in evidence and seized materials, the detaining authority after satisfying himself and in order to prevent the detenu from smuggling goods in future, passed the impugned order of detention. He further contended that in the absence of prejudice as shown by the detenu, the detention order cannot be interfered. Regarding the variation in between English and Tamil version of the grounds of detention, the translation of the required details are correctly given and mere error in the caption does not vitiate the impugned order of detention. Regarding the last contention, it is stated that immediately after the arrest, i.e., on 16-1-2004, his wife was informed through phonogram and the same was confirmed by telegram on 19-1-2004; hence there is sufficient compliance and no ground for interference.
5. We have carefully considered the rival submissions.
6. With regard to the first contention, the learned senior counsel for the petitioner submitted that since the officers recovered certain amount of foreign currencies, visiting card and a small "Chit" containing certain writings on both sides from his pant pocket and the same were relied on by the detaining authority, the detenu is entitled to copies of the same. The recovery of Indian and Foreign currencies and a "Chit" containing certain writings on both sides were admitted. This is also clear from Ground 1(iv), (vii) and (viii) of the detention order. According to him, in spite of the fact that the "Chit" was recovered from the detenu and the contents of the same were relied on by the detaining authority, details found in one side of the "Chit" were not furnished to the detenu. Page 38 of the booklet supplied to the detenu contains details, namely certain figures mentioned in one side of the "Chit." Admittedly, the details found in the other side of the "Chit" have not been furnished to the detenu. A perusal of the said page in the booklet shows repetition of the details found in one side of the "Chit" and there is no information regarding the details found in the other side of the "Chit."
7. The learned Government Advocate vehemently contended that the detaining authority has arrived at a subjective satisfaction based on the voluntary statement of the detenu and not with reference to the "Chit," which was recovered from the detenu; hence it is not a relied upon document and there is no compulsion on the authority to supply a copy of the same. He also contended that no prejudice was shown by the petitioner or the detenu due to non-supply of the same. We are unable to accept the said contention for the following reasons. We have already referred to the fact that the seizure of a "Chit" from the pant pocket of the detenu was referred to in sub-paragraphs (iv), (vii) and (viii) of para 1 of the detention order. Though in sub-paragraph (iv) there is only a mere reference namely, mentioning the small "Chit" of paper; however, in sub-paragraph (viii), after discussing the voluntary statement made by the detenu, the detaining authority at the end has stated, "......that a chit was recovered from you and in that the details of the smuggled currencies were noted:......"
Though the detaining authority has referred to the statement made by the detenu and the currencies as well as other materials seized, it is clear that the paper chit contains the details of the smuggled currencies. In other words, the details of the smuggled currencies which were noted in the "Chit," which were recovered from the detenu and relied along with other materials.
8. To strengthen the above point, the learned senior counsel has relied on the case of Mulchandani v. Assistant Secretary to Government of Maharashtra, wherein the Supreme Court has held that, where a list of smuggled goods is recovered from a detenu and is relied on in the grounds of detention, it is a material document and non-supply of that document to the detenu would render the order of detention void. Until the list was supplied, it was not possible for the detenu to make an effective representation against the order of detention to the detaining authority. In that case the document which was not supplied is in the nature of slip, which was recovered from the detenu, which was said to have been written and handed over to him by the other detenu. In one of the grounds of detention it is stated that summary made by the detenu Gulab Gopaldas Manghnani of the account in respect of the articles smuggled was recovered from him and was admitted by him before the Customs Officer during the adjudication proceedings. It was argued that unless the said slip which was seized supplied to the detenu. It was not possible for the detenu to make an effective representation against the order of detention to the detaining authority. Considering the details made therein and of the fact that the said slip was relied on by the detaining authority, their Lordships accepted the argument of the learned counsel for the petitioner-detenu and concluded that the slip containing the accounts was a material document which was undoubtedly referred to and relied on by the detaining authority and should have been supplied to the detenus pari passu the grounds of detention and ultimately set aside the detention order. As rightly argued, the above decision is directly on the point. Similar view has been expressed in the case of Sophia Gulam Mohd. Bham v. State of Maharashtra, . In the case of Mohd. Zakir v. Delhi Administration, while considering a similar claim, the Hon'ble Supreme Court has held that it is manifest that the question of demanding the documents is wholly irrelevant because it is the constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation Immediately instead of waiting for the documents to be supplied with.
9. It is also brought to our notice that the petitioner herein, wife of the detenu has made a representation to the Government on 14-2-2004, wherein (page 4 of her representation), she specifically pleaded for supply of details mentioned in both side of the "Chit," which was seized from her husband. In the reply dated 2-3-2004, the Government have stated that the copy of the "Chit" has been furnished to the detenu, which finds a place at page 38 of the booklet. We have already referred to page 38 from which it is clear that the details found in one side of the "Chit" alone were Xeroxed and sent to the detenu and not the contents of other side of the "Chit." Accordingly, we are satisfied that in spite of the representation of the petitioner dated 14-2-2004, the relevant and relied on document, namely, the "Chit" was not supplied either to the petitioner or to the detenu. We have already found that the "Chit" was relied on by the detaining authority along with other materials; hence the detenu is entitled copy of the same in order to make an effective representation. Since he was not given a copy of the relied on document in spite of the request by the petitioner, the detention was not in accordance with the procedure contemplated by law. Accordingly, we sustain the first contention raised by the learned senior counsel for the petitioner.
10. Regarding the second contention relating to variation in the English and Tamil version, it is brought to our notice that in the annexure to a mahazar dated 16-1 -2004, details regarding Indian Currencies recovered from the check-in baggages were furnished. Though in the English version it is stated as "Indian Currencies," in Tamil version it is stated as "Foreign Currencies". The learned Government Advocate by drawing our attention to the details found in annexure, which are correctly stated, submitted that the detenu is no way prejudiced by the above said written description. In this regard it is brought to our notice that in the case of Union of India v. Shantaram Gajanan Kanekar, reported in 1994 Supp (2) SCC 571, after finding that the Marathi version of declaration under Section 9(1) of COFEPOSA Act supplied to the detenu was not tallying with its English version, the Supreme Court upheld the order of High Court, quashing the order of detention. In HCP. No. 110 of 1999 dated 6-9-1999, a Division Bench of this Court after finding variation in the description of place of Judicial Magistrate, who found the detenu guilty, namely, Judicial Magistrate, Trichy, in the Tamil version and Judicial Magistrate, Arlyalur in English version, has quashed the detention order, in view of the incorrect translation of the grounds of detention. For similar reason, namely, Tamil version of detention order is not in conformity with the English version, another Division Bench set aside the detention order in HCP. No. 1830 of 1998 dated 13-8-1999. All the above referred decisions are applicable to the case on hand and we hold that though the contents of the mahazar were correctly translated, the captions referred to at the top of the proceedings are not correctly given and hence, the impugned order of detention is liable to be set aside.
11. The learned Government Advocate relied on orders passed in HCP. No. 2330 of 2002 dated 5-8-2003; HCP. No. 211 of 2002 dated 24-3-2003 and HCP. No. 1876 of 2003 dated 16-3-2004, to show that for minor discrepancy in the translated version, the order cannot be faulted with. In our case, as pointed out above, when the authority refers to the details regarding Indian currencies in the translated version, it is described as Foreign currencies, and the same cannot be construed as a small error as claimed by the learned Government Advocate. Accordingly, we hold that those decisions are not applicable to the case on hand; hence, the second contention is also sustainable.
12. Coming to the last contention, there is no dispute that the detenu was arrested on 16-1-2004 and produced before the Magistrate on 17-1-2004. It is also not in dispute that as per the decision of the Apex Court in the case of D. K. Basu v. State of West Bengal, the details regarding arrest must be informed to the next friend or relative of the arrestee telegraphically within 8 to 12 hours after the arrest. In para 35 of the said judgment their Lordships have issued 11 directions to be followed in all cases of arrest of detention till legal provisions are made in that behalf as preventive measures. Among the 11 causes, Clause (4) is relevant.
"4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest."
Admittedly, in our case, arrest was made at Madras and wife of the arrestee is residing at Ramanathapuram District. In such a circumstance, the time, place of arrest, venue and custody of the arrestee must be informed to the next friend or relative when he or she lives outside District/Town through Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. In the grounds of detention, particularly in para 1 (xiii) it is stated that phonogram was sent by DRI, Chennai on 17-1-2004 to the father of the detenu at Thondi, Ramanathapuram District intimating his arrest and remand. It further shows that another phonogram was also sent to Manjura Beevi-wife of the detenu, residing at Thondi, intimating his arrest and release on bail. The petitioner has specifically denied the intimation of arrest through phonogram on 17-1-2004. According to her, intimation was sent only on 19-1-2004 through telegram and no phonogram was sent on 17-1-2004, as claimed. Though the learned Government Advocate denied the said aspect, the letter of the Secretary, Public (Law and Order) Department, dated 2-3-2004 addressed to the detenu shows that details regarding arrest was intimated to his father through telegram only on 19-1-2004 (vide para 3 of the said letter). This information strengthens the claim of the petitioner that intimation regarding arrest was formally intismated only on 19-1-2004 through telegram. The process adopted and followed by the authorities is contrary to the mandate of Supreme Court in D. K. Basu's (cited supra). On this ground also the order of detention is liable to be set aside.
Under these circumstances, we set aside the impugned detention order dated 29-1-2004 passed by the first respondent; accordingly, this petition is allowed and the detenu is directed to be set at liberty forthwith from the custody unless he is required in connection with any otherwise.