Madras High Court
Rajendrakumar Verma, Etc. vs The State Of Tamil Nadu on 28 January, 1993
Equivalent citations: 1993CRILJ2590
Author: K. Venkataswami
Bench: K. Venkataswami
ORDER
1. Petitions under Art. 226 of the Constitution of India, praying that in the circumstances stated therein, and in the affidavits filed therewith, the High Court will be pleased to issue Writs of Habeas Corpus, Secretary to Government, Public (SC) Department, Madras, under S. 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in respect of H.C.P. Nos. 326 and 329 of 1992 and under S. 3(1)(iii) of the said Act in respect of H.C.P. No. 328 of 1992. In respect of H.C.P. No. 326 and 329 of 1992, the clamping of detention order was with a view to prevent the detenus from abetting the smuggling of goods and in respect of H.C.P. No. 328 of 1992, the clamping of detention order was with a view to prevent the detenu from engaging in transporting, concealing and keeping smuggled goods. The goods involved are gold biscuits with foreign markings.
2. As the three detenus were said to be connected with the seized gold and in view of certain common factors, learned counsel on both sides advanced common arguments and, therefore, we are disposing of these cases by this common order.
3. In the view we propose to take on the question of law, we do not consider that we should set out in detail the facts leading to the filing of these case. However, we give briefly the facts.
4. The petitioner in H.C.P. No. 328 of 1992 was staying in Room No. 58, Hotel Dasprakash, Poonamallee High Road, Madras-84. On the basis of specific information Officers of the Enforcement Directorate searched the said room on 22-4-1992. At that time, the petitioners in H.C.P. No. 326 of 1992 was physically present in that room. The search took place in the presence of two witnesses, and it led to the seizure of 22 numbers of gold biscuits with foreign markings, totally weighing 2563 grams (Market value Rs. 11,90,514/-). After completing the search the said room, the search was further continued in Room No. 225, Hotel Mahasakthi International at 371, Mint Street, Sowcarpet, Madras-79 which was under the occupation of the petitioner in H.C.P. No. 326 of 1992. The search party seized some documents and slips. Thereafter, the Enforcement Officers search the premises in the occupation of the petitioner in H.C.P. No. 329 of 1992, namely Room No. 24, Kasi Chetty Street, II floor, Madras-79. There also, the search party recovered only certain documents. According to the Revenue, all the three petitions were connected with the goods seized, as mentioned above, from the room in the occupation of the petitioner in H.C.P. No. 328 of 1992. On that basis, and for the reason stated in the grounds of detention, the orders of detention of even date were passed.
5. Learned counsel appearing for the petitioners, Mr. B. Kumar, challenged the orders of detention on various grounds. Learned counsel submitted that the detention orders were passed on 5-8-1992 even though the alleged occurrence took place on 22-4-1992, and there was no explanation for such long delay in passing the orders of detention. He also submitted that the delay was not only in passing the orders but also in executing the same as well. In other words, he submitted that though the petitioners were released on bail and were appearing before the judicial Magistrate as per the condition imposed for releasing them on bail, they were not arrested immediately after the detention orders were passed. On the ground of delay, according to the learned counsel, the orders of detention should be quashed. His next submission was that the retraction statement explaining the legal possession of the gold was not placed before the Detaining Authority and that vitiates the orders of detention. He also submitted that copies of various documents supplied to the petitioner in H.C.P. 328 of 1992 were illegible and, therefore, the Order passed against that petitioner is liable to be quashed on that ground. He also submitted that the provision quoted in the grounds of detention has no nexus with the factual details available in the case. He also submitted that the petitioners in H.C.P. Nos. 328 and 329 hail from the State of Rajasthan while the petitioner in H.C.P. 326 of 1992 hails from Delhi and therefore the three petitioners know only Hindi, and even though this fact was made known to the Officers concerned, relevant documents translated in Hindi were not supplied to the detenus. The next submission was that the representations sent by all the detenus were not disposed of till date, which also vitiates the orders of detention. Lastly, he submitted that no reasonable and sufficient opportunity was given to the detenus to make effective representation before the Advisory Board through their friends who are all in other States as the notices were saved on the detenus only on 11-11-1991 at 18-40 Hrs. practically a day prior to the date of the meeting, namely, 13-11-1992. By reason of this, the petitioners were not in a position to contact their friends and get their assistance at the time of personal hearing before the Advisory Board.
6. Of all the above contentions, we consider that it is sufficient to deal with the last two contentions.
7. In answering the contention regarding the non-consideration of the representations, though at the initial stage, the learned Additional Public Prosecutor, on instructions, unequivocally stated that no representation was received from the petitioners, when the learned counsel for the petitioners produced evidence, namely, Certificates from the Postal authorities that the registered letters sent by the detenus were served in the Office of the Chief Secretary, Fort St. George, Madras, learned Additional Public Prosecutor took time to verify the records with reference to the Certificates produced by the learned counsel for the petitioners. After verification, he admitted that two representations were received from the petitioners in H.C.P. Nos. 328 and 329 of 1992. Learned Additional Public Prosecutor stated that no other representation was received in the Office of Chief Secretary. His answer for the non-disposal of the representations received was that the covers containing the representations were not addressed to the proper person to whom they would have been addressed as per the directions given in the grounds of detention. Therefore, the representations, though received from the petitioners, were not forwarded for further action and disposal, and only after tracing of the same, further action is being taken. In other words, the blame is on the part of the detenus is not addressing the letters to the proper authority as expected of them.
8. As regards the last contention, though the learned Additional Public Prosecutor admits that the detenus were served with the notice regarding the Advisory Board Meeting only on 11-11-1992, nothing prevented the detenus from making out a grievance before the Advisory Board seeking an adjournment on the ground that they were not given reasonable time to get the assistance of their friends. Therefore, according to the learned Additional Public Prosecutor, the contention that the petitioners were not given reasonable opportunity to make effective and meaningful representation before the Advisory Board is not sustainable.
9. As regards the procedure of sending representation to the Authority mentioned in the grounds of detention, learned counsel appearing for the petitioners, Mr. B. Kumar, submitted that though the covers did not contain the full details, in the representations as such, placed inside the cover, the addresses, namely, 'From' and 'To' were in full form and in quite accordance with the direction given in the grounds of detention. Therefore, the answer given by the learned Public Prosecutor that since the representations were not addressed to the proper Authority, the same were not forwarded for disposal, cannot be countenanced. Here, we can usefully refer to a recent unreported judgment of the Supreme Court in Criminal Appeal No. 492 of 1992 (Rumana Begum v. State of Andhra Pradesh - judgment dated 5-8-1992. In that case, their Lordships of the Supreme Court, while repelling a contention that the representation sent to Governor knowing fully well that it must be sent to the Chief Secretary to Government must be deemed to be a subterfuge resorted to by the detenu, observed as follows :-
".... The position that a representation made to the Governor must be treated as one made to the Government was rightly accepted by the High Court on the analogy of the pronouncement of this Court in Raghavendra Singh v. Superintendent, District Jail, Kanpur, . The decisions in Kubic Darusz v. Union of India and Phillippa Anne Duke v. State of Tamil Nadu, 1992 (2) SCC 389 relied by Shri G. Prabhaker, learned counsel for the State of Andhra Pradesh, do not advance its case any further. The first case is an illustration as to how a representation would require to be construed in favour and for the benefit of the detenu. The second case deals with a non-statutory representation, presented to the Prime Minister in a foreign country."
In the cases on hand, the representations were correctly addressed, but were sent in covers not fully addressed as given in the grounds of detention. Therefore, the cases on hand stand on a better footing.
10. As regards the petitioner in H.C.P. No. 326 of 1992, learned counsel submitted that when the Postal Department has given a Certificate stating that a registered letter sent by the petitioner was also served in the Office of the Chief Secretary, Fort St. George, Madras, the statement that the same was not received by the said Office cannot be accepted. According to the learned counsel, in all probability, the representation of the petitioner in H.C.P. 326 of 1992 must have been misplaced in the Office of the Chief Secretary, for which the detenu cannot be held responsible.
11. We have considered the rival submissions on the last two points.
12. We shall dispose of the question of non-disposal of the representations first. We have no good reason to think in the facts and circumstances of the case and in view of the Certificates given by the postal authorities that of the three registered letters addressed to the Chief Secretary, only two registered letters had been received and one registered letter had not been delivered in the Office of the Chief Secretary. We proceed on the basis that all the three registered letters were served in the office of the Chief Secretary. The reason given by the learned Additional Public Prosecutor that the covers did not contain the proper address is not satisfactory. The covers admittedly contained the address : "Chief Secretary, Fort St. George, Madras-9". In the grounds of detention, the detenu was directed to send representations, if he wanted to do so, to the following address :-
"Chief Secretary to the Government of Tamil Nadu, Public (L. & O.) Department, Madras-600009".
However, it is not in dispute that in the representations as such, full address as given in the grounds of detention does find a place, and, apart from that, in the body of the representation, details of the case and the Government Order under which the detention orders were passed also find a place. Therefore, it cannot be said that for want of details, the representations were not forwarded for further consideration and disposal. It is not the case of the learned Public Prosecutor that since the representation was in Hindi, the same could not be disposed of. We are, therefore, of the opinion that if only the concerned person had taken some care to look into the representations as such, certainly it would have revealed that the representations related to an order of detention requiring immediate attention. Unfortunately that was not done by the concerned in the Office of the Chief Secretary. The address in the cover is not the only material to find out whether the representation was properly addressed or not. The concerned must have looked into the representations and found out as to whom they were addressed and he should have taken further steps to forward the same to the proper authority. The failure to do so in these cases vitiates the orders of detention as it must be taken that the representations sent on 2-10-1992 were not disposed of till date.
13. The other point, namely, that the petitioners were not given reasonable opportunity to make effective and meaningful representation before the Advisory Board at the time of personal hearing is also well-founded. Admittedly, two of the petitioners hail from the State of Rajasthan and one from Delhi, and, unless they are given reasonable time to contact their friends in their home States, they cannot get their assistance. In these cases, the Advisory Board meet on 13-11-1992. However, the notices regarding the Advisory Board meeting were served on the detenus only on 11-11-1992 at 18.40 hrs. Hardly there was time for them to get in touch with their friends in their home States. The only answer given by the learned Additional Public Prosecutor was that the detenus could have made representations before the Advisory Board, seeking adjournment. In this connection, learned counsel for the petitioners brought to out notice two judgments, one of the Supreme Court and another of this Court.
14. In State of Andhra Pradesh v. B. Subbarajamma , the Supreme Court has observed as follows (at page 395 (of AIR) :-
"These are the two important constitutional safeguards. The Advisory Board is a constitutional imperative. It has an important function to perform. It has to form an opinion whether there is sufficient cause for the detention of the person concerned. There is no particular procedure prescribed for the Advisory Board since there is no lis to be adjudicated. Section 11 of the Act provides only the broad guidelines for observance. The Advisory Board, however, may adopt any procedure "depending upon varying circumstances. But any procedure that it adopts must satisfy the procedural fairness. We need not deal with this aspect in detail since the Advisory Board consists of persons who are or have been or are qualified to be appointed as Judges of a High Court. They are men of wisdom and learning. Their report as envisaged under section 11(2) of the Act should provide specifically in a separate part whereof as to "whether or not there is sufficient cause for the detention of the person concerned." That opinion as to sufficient cause is required to be reached with equal opportunity to the State as well as the person concerned, no matter what the procedure. It is important for laws and authorities not only to be just but also appear to be just. Therefore, the action that gives the appearance of unequal treatment or unreasonableness whether or not any substance in it should be avoided by the Advisory Board. We consider that it must be stated and stated clearly and unequivocally that it is the duty of the Advisory Board to see that the case of detenu is not adversely affected by the procedure it adopts. It must be ensured that the detenu is not handicapped by the unequal representation or refusal of access to a friend to represent his case."
Learned Additional Public Prosecutor distinguished this judgment of the Supreme Court by submitting that in the facts of that case the judgment of the Supreme Court must be understood and, therefore, that judgment cannot be applied to the facts of this case.
15. In Writ Petition No. 7269 of 1992 (P. Rajadurai v. Joint Secretary, Ministry of Finance, New Delhi ordered dated 29-9-1992), a Division Bench of this Court has repelled a similar contention and held that the detenu was not given reasonable opportunity to make effective representation before the Advisory Board. K. M. Natarajan, J. speaking for the Bench, after referring to the Supreme Court Judgment in A. K. Roy v. Union of India and another Division Bench judgment of this Court in W.P. 10010 of 1984 dated 9-4-1985 (Babu v. State by Public Prosecutor), held that the detenu in that case was prejudiced and it cannot be said that the proceedings before the Advisory Board was fair and in accordance with the provisions of the Statute. In W.P. 10010 of 1984 (supra), the learned Judge has observed as follows; after referring to S. 11 of the COFEPOSA Act :-
"In the circumstances, therefore, unless sufficient time is given to the detenu for making his written representation, it could not said that the mandatory provision in S. 11 had been complied with. If the Advisory Board's report was not in accordance with the provisions of the Act, then the confirmation of the detention order on the basis of the Advisory Board's report also gets vitiated."
We have given the date on which the notices regarding the Advisory Board meeting were served on the detenus and also the date of Advisory Board meeting. In the light of the facts stated above, we have no doubt that the detenus were not given reasonable opportunity for making effective and meaningful representation before the Advisory Board. We are also unable to agree with the learned Additional Public Prosecutor that the decision (supra) must be confined to the facts of that case alone. Though there was special circumstance, the extract from the decision of the Supreme Court given above is not with reference to the facts of that case, and, applying the extract of the Supreme Court as given above, we hold that the detenus in these cases were not given reasonable opportunity to put forward their effective and meaningful representation before the Advisory Board. For both these reasons, we hold that the orders of detention in all these three cases are vitiated, and accordingly they are quashed. The petitions are allowed. The respondent, who is common in all these three cases, is directed to release the detenus forthwith from custody unless they are liable to be detained in the custody for some other cause.
16. Petition allowed.