Madras High Court
Thiru Krishnaswamy Govindan vs The Secretary, Govt. Of Tamilnadu, ... on 23 March, 2004
Author: S.R. Singharavelu
Bench: P. Sathasivam, S.R. Singharavelu
ORDER S.R. Singharavelu, J.
1. The challenge is to the order dated 12.8.2003 passed against the petitioner herein by the State Government directing preventive detention of the petitioner under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act).
2. On 2.8.2003, while the detenu was proceeding to board the Singapore Airlines Flight No.SQ409 after completion of immigration, customs and security formalities, at the time of interception, he was found in possession of an Indian passport NO.Z-1466128 dated 16.8.2001 issued at San Francisco, air ticket No.91422270710 and boarding pass for seat No.49B of the above said flight. He was also found in possession of a hand baggage and counter foil of a checked in baggage bearing No.SQ.398017. On persistent enquiry, he admitted that he was carrying the foreign currencies. Therefore, the Directorate of Revenue Intelligence (DRI) officials have made a search upon him and nothing incriminating was found. On examination of his hand baggage, three magazines were found and kept inside and in the said three magazines, some of the pages were found stapled on both the ends. On removing the staples, totally 23 bundles of US$ and S$ were found to be in possession, for which, there was no valid permit or licence. They were accordingly seized under the cover of mahazar upon furnishing the details of the foreign currencies. The detenu had given a statement on 3.8.2003 before the DRI officials about the circumstances under which he came into possession of the foreign currencies. After proper arrest by the DRI officials on 3.8.2003, the detenu was produced before the Additional Chief Metropolitan Magistrate, EO1, Egmore Chennai, who remanded him to judicial custody till 13.8.2003.
3. Subsequent to the said remand, on further investigation, the DRI officials searched Room No.119 of Hotel Karpagam International at No.41, South Mada Street, Mylapore, Chennai on 3.8.2003 and recovered a plastic bundle kept concealed in the flush tank in the toilet of the above said room. It was found to contain seven bundles of US$ and Saudi Riyals. They were equivalent to Rs.35,09,140/- and were seized under a cover of mahazar. From the statement of one Purushothaman, the Manager of the said hotel, the involvement of the detenu was found. The detenu had also given a statement on 5.8.2003 after getting custody for enquiry from the said Court, which had already remanded him. Thus, after finding that the detenu had involved himself in the activities against the provisions of the COFEPOSA Act and after usual formalities, the State Government passed the order of detention.
4. Learned counsel for the detenu has drawn our attention to the grounds of detention and pointed out that even though it was alleged as if the detenu had concealed more than 2000 currencies in three magazines, nothing was stated in the grounds of detention about the number of pages at which the currencies were kept. It was argued that the possibility of concealing more than 2000 currencies in three magazines is totally unimaginable inasmuch as the magazines may contain only pages around 100.
5. Learned counsel has also put a pertinent question as to whether more than 2000 currencies could be concealed by clipping the same into few pages of three magazines. Even if stapler is used, the magazines, besides looking bulge, may not contain so many currencies. Further, according to paragraph 11 of the affidavit of the detenu, he had asked for the copy of the mahazars and the same has not been furnished. Had the copies been served as required by the detenu, it would have been demonstrated on his behalf about the impossibility of containment of the magazines with more than 2000 currencies. It is in this way, the detaining authority has not applied its mind even to imagine as to how could three magazines contain 2000 currencies. This will hamper the subjective satisfaction on the part of the detaining authority.
6. Learned counsel for the petitioner has next submitted that as per para 1(ix) of the grounds of detention, the detenu was found to have been arrested by the DRI officials on 3.8.2003 and was produced before the Additional Chief Metropolitan Magistrate, EO1, Egmore, Chennai, who remanded him to judicial custody till 13.8.2003. But, the copy of the remand report supplied to the detenu did not contain the date upto which he was remanded. That is to say, even though the detention order was passed on 12.8.2003, according to the case of the detaining authority, the Additional Chief Metropolitan Magistrate remanded him to judicial custody upto 13.8.2003 and as the detaining authority has relied upon such materials to arrive at the adverse conclusion, it is the paramount duty of the authorities to supply the copy of such materials. The non supply of copy containing material particulars not only will amount to denial of opportunity enshrined under Article 22(5) of The Constitution of India, but also will show the non application of mind in not verifying, on the date of order of detention namely 12.8.2003, as to whether the detenu was in judicial custody or not.
7. Learned Additional Public Prosecutor has drawn our attention to page 107 of the paper book wherein we find the remand order of the detenu dated 5.8.2003 till 13.8.2003.
8. He cannot be heard to say that by relying upon such materials, the detaining authority verified the judicial custody of the detenu as on the date of the order of detention. This is so, because in the grounds of detention, even though the order of remand dated 5.8.2003 was mentioned, it is significantly silent as to the reliance on such materials, namely the remand order dated 5.8.2003. Therefore, according to the grounds of detention, the material that was relied upon was only the remand order dated 3.8.2003 remanding till 13.8.2003. This material was not looked into by the detaining authority and the copy of such material was not correctly furnished to the detenu. It is in that way, the detention order gets vitiated.
9. In paragraph 5 of the order of detention, it was stated as follows :
"The State Government are also aware of the fact that you are in the Central Prison, Chennai as remand prisoner and there is likelihood of you being released on bail. The State Government are satisfied that there is likelihood of your indulging in the above said prejudicial activities..."
10. Learned counsel for the detenu has submitted that there are two contingencies of chance of the detenu getting enlarged on bail; one is the prospective chance of applying for bail and another is the likelihood of releasing on bail.
11. These two terms, viz. 'likelihood of his moving an application for bail' and likelihood to be released on bail' were vividly discussed in the judgment in the case of Amritlal Vs. Union Government (2001 SCC (Crl) 147). In paragraph 6 of the said judgment, it has been observed as follows :
"The requirement as noticed above in Binod Singh case that there is 'likelihood of the petitioners being released on bail' however is not available in the reasoning as provided by the officer concerned. The reasoning available is the 'likelihood of his moving an application for bail' which is different from 'likelihood to be released on bail'. This reasoning, in our view, is not sufficient compliance with the requirements as laid down."
12. Thus, the inference that was drawn by the detaining authority that the detenu is likely to be released on bail is not supported by any material inasmuch as no application for bail was found to have been pending or that such a situation was grounded in the order of detention. Mere ipse dixit of the officer passing the order of detention is not the criterian. There should be some material to infer that the detenu will come out on bail and that material is the pendency of the application for bail. In the absence of that, the conclusion arrived by the authority is nothing but ipse dixit. On this ground also, the order of detention gets vitiated.
13. Reliance is placed on the judgment in the case of Chowdarapu Raghunandan Vs. State of Tamilnadu (2002 SCC (Crl) 714) wherein it was found that to arrive at a prognosis that the detenu is likely to indulge in any such prejudicial activities, there must be reasonable circumstances and in the absence of an allegation that he had involved in any other anti-social activities excepting the allegation that he visited the foreign countries twice as a tourist, the single solitary incident may not be grounded for snapping the liberty of an individual by passing the order of detention. In this case also, such circumstances or materials were not grounded in the grounds of detention. For the reasons stated above, the impugned order of detention gets vitiated and the same is liable to be set aside.
14. Accordingly, the habeas corpus petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his detention is required in connection with any other cause.