Madras High Court
Dhanushu @ Vijay S/O. Chandran Subbiah, ... vs The State Of Tamil Nadu Rep. By The ... on 13 August, 2007
Author: P.K. Misra
Bench: P.K. Misra, R. Banumathi
ORDER P.K. Misra, J.
Page 2450
1. The orders of detention in respect of three detenues passed under Section 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), hereinafter referred to as "the Act" are in question.
2. Briefly stated the facts as apparent from the grounds of detention indicate that on 27.10.2006 Rafeeq Mohammed, detenu in HCP.No. 126/2007 came from Colombo. On examination the officers found fake Indian currencies from his baggages. On enquiry, he stated that one Abdul Nassar, detenu in HCP.No. 123/2007, was waiting at the exit gate of the Airport. The officers also found Dhanushu @ Vijay, the detenu in HCP.No. 117/2007, had come along with Abdul Nassar to the Airport. In his voluntary statement, Rafeeq Mohammed stated that he had contacted one Bazeer and had requested him for getting a job and Bazeer had told that he would take Rafeeq Mohammed to Colombo and would give him some crockery items and some fake Indian currencies would be concealed in the packages and he would have to bring them to India and for the aforesaid job Bazeer had offered Rs. 15,000/-, which was accepted by Rafeeq Mohammed. Page 2451 Accordingly, Rafeeq Mohammed accompanied Bazeer from Kasargod to Chennai. Abdul Nassar, who was known to Bazeer, gave the air tickets for Abdul Nassar and Bazeer and accordingly Rafeeq Mohammed and Bazeer boarded the flight to Colombo. After they landed in Colombo Airport, one Sri Lankan national came and handed over two corrugated boxes to Bazeer and thereafter Rafeeq Mohammed came back to Chennai along with corrugated boxes and Bazeer stayed back stating that he would return after few days. Bazeer also told that Abdul Nassar would be waiting for Rafeeq Mohammed at Chennai. Thereafter Rafeeq Mohammed was intercepted and on verification fake Indian currencies were found. After subsequent enquiries and investigation, the orders of detention were passed against three detenues as well as against Bazeer.
3. Learned Senior Counsel appearing for the petitioners has contended that in paragraph 5 of the grounds of detention it is indicated:
5. The State Government are aware of the fact that you are in the Central Prison, Chennai as a remand prisoner and that your remand is for the period specified in law and you would be released on statutory bail thereafter.
In the above context, learned Senior Counsel has contended that materials on record contained in the booklet indicate that remand order in respect of three detenues had been extended till 5.1.2007 but, there was no further order of remand. On the other hand, certified copy of the order dated 5.1.2007 indicates that the court had simply adjourned the matter as the three prisoners had not been produced. Learned Senior Counsel has submitted that describing three detenues as remand prisoners without ascertaining the real position is indicative of non-application of mind on the part of the detaining authority to a vital aspect, which has the effect of vitiating the order of detention. In support of such conclusion, learned Senior Counsel for the petitioner has relied upon several decisions of this Court including a Full bench decision in HCP.Nos. 1633 & 1152 of 2001 disposed of on 11.4.2002.
4. In HCP.No. 1633 of 2001, the concerned detenu was arrested and produced before the Magistrate and was remanded upto 4.10.2001. On 4.10.2001, however, he was admitted in the Government General Hospital and was not produced before the Magistrate, though the co-accused had been produced. The Magistrate, while extending the remand of the co-accused upto 4.10.2001, noted that the concerned detenu was not produced. He therefore directed that the case should be called on 18.10.2001. On 17.10.2001, the order of detention was passed under COFESPOSA, wherein it was recited as if the detenu was a remand prisoner. Since there were divergent decisions, the matter was referred to Full Bench. Even though no specific question was referred to, the Full Bench has framed the following question:
Whether reference to the fact that the detenu was a remand-prisoner lodged in a prison when there was no remand order in fact by a Magistrate and when in fact the detenu was not lodge in prison would Page 2452 vitiate the detention order on account of non-application of mind?
While considering the question of non-application of mind on the part of the detaining authority, the Full Bench observed:
14. For arriving at a finding of non-application of mind by the detaining authority, it will have to be essentially found whether the detaining authority has in fact failed to consider any relevant situation which would have affected his decision of clamping the detention order. Further, it would be also a non-application of mind if the authority proceeds on the basis of totally incorrect facts, completely ignoring the circumstance that those facts were factually incorrect if such facts have the effect of affecting his decision-making process. We shall now test whether such is the situation in the present case.
15. It was obvious that on the day when the detention order was passed, i.e. on 17-10-2001, there was no remand order in case of the detenu. It was fairly admitted by the learned Public Prosecutor that the remand was extended only in case of the other accused Chandramohan. The remand order also stands testimony to this fact. It was obvious that the learned Magistrate, who was dealing with the remand, had taken note of the fact that accused-detenu was not produced before him and was in fact admitted in the Government Hospital, Royapettah as an indoor-patient. He has noted this fact also in his order. However, the fact remains that he did not pass a remand order considering this situation of the accused-detenu being admitted in the hospital on the day and it being impossible for the police to produce him in the court. Thus, there was no remand order in existence on the day when the detention order was passed and as such, the detenu could not be said to be a "remand-prisoner". Again, factually there is no dispute that on that day the accused-detenu was not an inmate of the Central Prison, Chennai though he was described to be so in the detention order. He was admitted in the Government Hospital, Royapettah as an in-door patient. Mr. Basha, therefore, contended and in our opinion rightly that here was a situation where even being aware of the fact of the non-extension of remand on account of the detenu being admitted in the hospital and not having been produced before the Magistrate, the detaining authority still went on to describe the accused-detenu as a "remand-prisoner" and lodged in the Central Prison, Chennai. He pointed out that the awareness on the part of the detaining authority of the facts of non-extension of the remand was writ large in paragraph (xxx) of the detention order and yet ultimately in paragraph 5, the concerned detaining authority described the detenu as a "remand prisoner". This, according to the learned senior counsel, was a classic example of non-application of mind.
It was further observed:
19. We have no doubts in our mind that the circumstances like accused-detenu being on remand, being already incarcerated in the Page 2453 jail or being admitted in the hospital and not being available for being produced before the Magistrate and the total absence of the remand order were circumstances which were bound to be taken into consideration by the detaining authority as these were extremely relevant facts which would have one way or the other affected his thinking-process and would have in the result affected his decision to clamp a detention order. The two aforementioned judgments in H.C.P.Nos. 1839 of 1999 and 1014 of 2001 are correctly decided in this behalf. The judgment in H.C.P.No. 352 of 2001 is also partly correct except to the extent that we have shown in paragraph 18 above. It is by now a settled law that a factually incorrect statement in respect of the extension of remand vitally and fatally affects the detention order. The same factual situation is obtained here.
27... The facts that the subsequent remand orders were passed against the accused and thereby he was lodged in proper custody are the facts which are totally irrelevant for the question as to whether the detaining authority in this case was guilty of non-application of mind or not. Merely because subsequently the detenu was remanded to the proper custody, he was deemed to be under remand even on the day of the passing of the detention order would be stretching the matter too far.
Ultimately, the Full Bench quashed the order of detention on the ground that there was non-application of mind.
5. Subsequently, in the Division Bench decision reported in 2003(1) CTC 673 Abdul Alim v. The State of Tamil Nadu Rep. by The Secretary to Govt., and 2 Ors., it was observed:
5. The contention of the learned Counsel for the petitioner is that as regards the period between 11.7.2002 and 25.7.2002, there was no extension of the remand. Reference is made to the order of the learned Additional Chief Metropolitan Magistrate dated 11.7.2002 in which it has been stated that due to the non-availability of the escort, the accused was not produced. The learned Magistrate adjourned the hearing for production of the accused on 25.7.2002. Therefore, according to the learned Counsel for the petitioner, the order of the detaining authority mentioning that the remand period was extended till 25.7.2002 and the further description that he was a remand prisoner were incorrect and vitiated due to non-application of mind....
7. Learned Public Prosecutor states that in paragraph (xi), the detaining authority has merely referred to the letter of the Special Public Prosecutor dated 12.7.2002 stating that the remand period was extended till 25.7.2002. Therefore, as this not a case where any reliance is placed on the specific remand order, the contention of the petitioner cannot be accepted. We are unable to accept this contention. It cannot be dispute that as a fact there was no extension of remand. Therefore, the information given by the Special Public Prosecutor is Page 2454 wrong. The detaining authority had proceeded on an information which is factually wrong. That being so, the fact that the Detaining authority had relied on a letter or a communication from some other authority cannot be a reason to validate the Detention order, which is passed on a wrong assumption of fact.
8. That apart, we are unable to agree with the contention raised by the learned Public Prosecutor, also on a consideration of the Judgment of the Full Bench in H.C.P.Nos. 1633 and 1152 of 2001 dated 11.4.2002. The same issue arose for consideration before the Full Bench and the Full Bench after considering the entire issue has held in their Judgment more than once that any statement made by the detaining authority to the effect that on the date of the passing of the detention order, the detenu was a remand prisoner even though there was actually no remand order by the concerned Magistrate, it would amount to a clear non-application of mind. We are bound by the said Judgment, which clearly applies to the facts of this case.
Ultimately the Division Bench quashed the order of detention on the ground that there was non-application of mind on the part of the detaining authority.
6. In H.C.P.No. 1400 of 2004, disposed of on 18.4.2005, it was observed:
3. Though several contentions have been raised questioning the impugned order of detention, learned Counsel appearing for the Petitioner at the foremost projected that the detention order is liable to be quashed on the ground of non-application of mind on the part of the Detaining Authority, since there is no valid order extending the remand of the detenu beyond 07.09.2004.
4. To substantiate the above contention, learned Counsel for the petitioner has taken us through copy of the remand extention order, both English and Tamil versions, which finds place at page Nos. 102 and 103 of the booklet supplied to the detenu. By drawing our attention to the said order, it is contended that after recording the fact of production of the accused, namely, the detenu, through video conference, the learned Additional Chief Metropolitan Magistrate, E.O.1, Egmore, Chennai-8, simply adjourned the petition to 21.09.2004 and that no order has been passed extending the remand of the detenu till 21.09.2004. According to the counsel, this is clear from the Tamil version of the order, which finds place at page No. 103 of the booklet. We have gone through both English and Tamil version of the order which finds place at page Nos. 102 and 103 of the booklet. On verification of the same, we see that a petition was filed for extension of remand beyond 07.09.2004 and though production of the accused was satisfied through video conference, we do not find any specific order by the Additional Chief Metropolitan Magistrate, extending the remand beyond 07.09.2004, both in the English and Tamil versions of the order. However, learned Additional Public Prosecutor, by drawing our attention to the Heading made to that order, namely, "REMAND EXTENSION ORDER DATED Page 2455 07.09.2004", would submit that the said caption makes it clear that the learned Magistrate extended the remand till 21.09.2004 and according to him, there is no flaw in the said order. It is also brought to our notice the statement made in the counter affidavit filed on behalf of the first respondent. In paragraph No. 6, it is stated as follows:
...I submit that in the order, dated 7/9/2004 of the Additional Chief Metropolitan Magistrate, Economic Offence-I, it was stated inter alia, as 'adj...to 21.9.2004". But, the detenu has failed to note the superscription of the order which read as Remand Extension Order, dated 7/9/2004 and therefore it implies that the remand of the accused has been extended upto 21.9.2004 and this document along with its Tamil translation are available at pages 102 and 103 of the booklet.
5. We have already referred to the order of the learned Magistrate dated 07.09.2004 (both English and Tamil versions). On going through the same, we are satisfied that there is no specific order extending the remand beyond 07.09.2004. In such circumstances, the explanation offered in the counter affidavit, particularly in paragraph No. 6, cannot be accepted. Though learned Additional Public Prosecutor heavily relied on the "caption" of the order, we are of the view that caption cannot be construed as the order remand passed by the learned Magistrate and we are concerned only with the actual order passed by the Presiding Officer concerned. As said earlier, we cannot presume that the learned Magistrate has extended the period of remand beyond 07.09.2004 as claimed by the learned Additional Public Prosecutor and as explained in the counter affidavit filed before us. We are satisfied that there is no specific order extending the remand beyond 07.09.2004.
6. In this regard, learned Counsel appearing for the petitioner has also brought to our notice an earlier decision rendered by a Division Bench of this Court reported in 2002-2-L.W. (Cri) 543 Karthik v. The Commissioner of Police, etc. and Anr. It is seen that for a wrong description of the date (according to the prosecution, it was a typographical error), the Division Bench, relying on an earlier Division Bench decision in S. Chelladurai Nadar v. State of Tamil Nadu 1992(1) Crimes 271, quashed the detention order therein on the ground of non-application of mind. The Division Bench decision relied on by the learned Counsel for the petitioner is applicable to the case on hand.
7. Recently, in a similar case, in H.C.P.No. 1236 of 2006, decided by a Division Bench consisting one of us (P.K. Misra, J), on 20.4.2007, after relying upon the earlier judgments, it was observed:
13. Apart from the above, the contention of the learned Counsel for the petitioner is to the effect that there has been non-application of mind on the part of the Detaining Authority regarding one more aspect, Page 2456 as to whether detenu has been remanded or not. In this connection reference can be made to the decision of the Full Bench of this Court made in HCP No. 1623/2001, dated 11.04.2002. It is of course true that in the said Full Bench decision, the detenu, who had been arrested and initially remanded, was subsequently taken to hospital and therefore, on the date of next remand, he was not produced before the Magistrate and therefore, the Magistrate simply adjourned the matter. The Full Bench found that the Order of detention by reciting that detenu was remand prisoner indicated non-application of mind and therefore, the order of detention was vitiated. The said decision was followed in 2003(1) CTC 673 (Abdul Alim v. State of Tamil Nadu by its Secretary), where the factual scenario appears to be exactly similar to the present case. In the said case, even though the person was in jail, he had not been produced before the Magistrate and the Magistrate had simply adjourned the matter to the next day without specifically extending remand till a particular date. The Detaining Authority, however, recited as if the remand of the detenu has been extended. In such a case, the Division Bench held that the order of detention was on account of non-application of mind to very vital aspect and therefore, such detention was quashed. Similar view has been expressed by several other Division Benches in cases like HCP No. 12627/2001, HCP No. 688/1997, HCP No. 1266/2004, HCP No. 1400/2004 and HCP No. 1839/1999. On this ground also the Order of detention is liable to be quashed.
8. Learned Senior Counsel appearing for the State has stated that even though technically speaking no formal order extending the remand was passed on 5.1.2007 on account of non-production of the concerned prisoners, the fact remains that three prisoners continued to be in jail as the case had been simply adjourned by the Magistrate and in fact they were in custody on 8.1.2007, when the orders of detention was passed and such slight inaccuracy contained in the grounds of detention cannot be held to be vitiating the order of detention.
9. We are afraid that such contention cannot be countenanced in view of the specific observation made in the Full Bench decision, which has been followed subsequently in several other Division Bench decisions. In fact the fact situation in the subsequent Division Bench decisions such as 2003 (1) CTC 673, H.C.P.No. 1400 of 2004 and HCP.No. 1236 of 2006 are very much similar to the present factual scenario and we hardly see any scope to take any different view in the matter. Moreover, we are bound by the earlier decisions of Full Bench and the Division Benches. In such view of the matter, the orders of detention are liable to be quashed.
10. It is also pointed out by the learned Senior Counsel for the petitioners that there was no other material before the detaining authority that in fact on 8.1.2007, when the detention orders were passed, the detenues were remand prisoners as the document available at booklet in page 247 which was a communication received from the Superintendent of Police Page 2457 dated 5.1.2007, cannot be the basis for coining to the conclusion that when the detention orders were passed the detenues were remand prisoners. Therefore, it can be concluded that the subjective satisfaction of the detaining authority that the detenues were remand prisoners on the date of detention is not based on any material on record and such subjective satisfaction is vitiated.
11. The next contention of the learned Senior Counsel is to the effect that the detenues were also arrested by CBI in RC.No. 8/2006-CBI, EOV-VI on the allegation of commission of offence under Sections 120B, 499 IPC, which are non-bailable offences. Awareness of the detaining authority regarding possibility of the detenues being released on bail was in respect of the case pending before the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, in connection with R.R.No. 28/2006, but there appears to be no awareness on the part of the detaining authority regarding the arrest of the detenu in connection with RC 8/2006 and therefore the conclusion of the detaining authority regarding possibility of the detenu coming out on bail is vitiated on account of non-consideration of relevant matters.
12. In support of such contention, learned Senior Counsel for the petitioners has relied upon several decisions of this Court including the decision reported in 2007 (1) MLJ (Crl.) 257, wherein it was observed:
6. Non-application of mind is on account of the fact that the detenu has been remanded in connection with two cases, but the detaining authority has referred to the possibility of the detenu being released on bail by referring to the bail Applications Crl.M.P.Nos. 4007 & 4050 of 2006, which had been filed in Cr.No. 44 of 2006. In other words, the detaining authority has not at all considered the possibility of the detenu being released in other case. Even if bail order would have been passed in Cr.No. 44 of 2006, the detenu would be still detained in prison as no bail application had been filed in connection with the earlier case, i.e., Cr.No. 37 of 2006. The detaining authority has not at all applied his mind to the aforesaid aspect. As a matter of fact, almost on similar circumstances, the Division Bench in Balasubramanian @ Subramanian @ Subbudu @ Subbu v. Commissioner of Police, Madurai City (supra) had quashed such detention on account of the fact that the detaining authority had only referred to filing of bail application in one crime and there is no reference to filing of bail application in connection with other similar crime.
13. Learned Senior Counsel for the petitioners has further submitted that Bazeer, who was also detained on the basis of the very same incident and who was supposed to be the master-mind behind all the operations, had also been detained, but subsequently the Advisory Board in its opinion had advised for revocation of such detention and on the basis of such opinion the Government had revoked the detention of the aforesaid person on 26.3.2007. However, while confirming the orders of detention in respect of the present three detenues on 2.4.2007, opinion of the Advisory Board dated 17.3.2007 and the subsequent revocation Page 2458 thereof dated 26.3.2007 were not placed before the State Government. In this connection, it is submitted that since such documents came into existence subsequent to the detention order, those documents should have been forwarded to the confirming authority.
14. In AIR 1983 SC 541 Mohd. Shakeekl Wahid Ahmed v. State of Maharashtra and Ors. , the Constitution Bench of the Supreme Court, while considering the question regarding desirability of placing the opinion of the Advisory Board in respect of co-detenue, observed:
7. It is contended by Shri Rana, who appears on behalf of the Government of Maharashtra, that there is distinction between the petitioner's case and that of Shamsi since, the petitioner is the brother of the consignor, Ashfag, while Shamsi is not. Counsel contends that by reason of this distinction in the facts of the two cases, the State Government was justified in not placing before the detaining authority in this case the fact that the Advisory Board had reported that there was no sufficient cause for detaining Shamsi. We may assume that petitioner is the brother of the consignor Ashfaq, since in these proceedings we cannot determine the truth of the various facts alleged by the detaining authority. But the question for consideration is not whether the detaining authority would have been justified in the passing the order of detention against the petitioner, even after being apprised of the opinion of the Advisory Board in Shamsi's case. The question is whether the order of detention was passed in this case after applying the mind to the relevant facts which bear upon the detention of the petitioner. It seems to us plain that the opinion of Advisory Board in Shamsi's case was, at any rate, an important consideration which would and ought to have been taken into account by the detaining authority in the instant case. That opportunity was denied to it.
8. Shri Rana contends that there were other grounds on which Shamsi was detained and the Advisory Board may have come to the conclusion that since those grounds were not enough to justify Shamsi's detention, there was no sufficient cause for detaining him. This argument also overlooks that it is not as if the opinion of the Advisory Board in Shamsi's case was binding on the detaining authority in this case. The substance of the matter is that the detaining authority in this case failed to apply its mind to the highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner now rests, in addition to something more, was not sustained by the Advisory Board in Shamsi's case. We cannot exclude a reasonable probability that since the Advisory Board had not sustained Shamsi's detention on a ground which was common to him and the petitioner, namely, ground No. 1, the detaining authority would Page 2459 have, if at all, passed the order of detention against the petitioner on the remaining three grounds only. Those three grounds have been held to be bad by the High Court and it is only by resorting to the provisions of Section 5A of the Act that the High Court upheld the detention of the petitioner.
It is no doubt true that the aforesaid observations were made at a stage of passing the order of detention and, therefore the question is whether such subsequent materials are required to be placed before the confirming authority.
15. In HCP.No. 762 of 2004, dated 8.10.2004, it was observed:
7. It is of course true that the aforesaid decision of the Supreme Court related to the question of consideration before the detaining authority. However, in our opinion, such factor would not make any difference and the ratio of the said decision would also be applicable to the stage of consideration of confirmation. As a matter of fact, this Bench has already applied the ratio of the aforesaid Supreme Court decision in H.C.P. No. 484 of 2004 disposed of on 14.9.2004, where the question was as to whether the opinion of the Advisory Board and the consequent revocation in respect of a co-detenu on the very same ground incident should be placed before the State Government at the time of confirmation and it has been observed as follows:
20. As per Section 12(1), even if the Advisory Board gives a opinion that there is sufficient cause for detention of a person, the State Government is not bound to confirm the order of detention, but the State Government "may confirm the detention order.". In other words, even though as per Section 12(2) the opinion of the Advisory Board that there is no sufficient cause for the detention is binding and the State Government is bound to revoke the detention in such case, the opinion of the Advisory Board that there is sufficient cause for detention is not binding on the State Government and inspite of such opinion regarding sufficiency for the cause of the detention, the State Government may revoke such detention. It is obvious that while considering the question of confirmation of the order of detention under Section 12(1), the State Government is required to apply its mind to all relevant circumstances. The fact that the Advisory Board had given a particular opinion for releasing a "co-detenu", who had been detained on the very same ground case, is obviously a relevant circumstance to be considered by the State Government and the ratio of the decision of the Supreme Court is equally applicable.
8. Learned Counsel for the State has placed reliance upon the decision of the Supreme Court reported in 2000 SCC (Cri) 1300 Rajappa Nellakantan v. State of T.N. and Ors. In the aforesaid decision, as observed by the Supreme Court itself without referring to the decision (cited above), on the peculiar facts and circumstances of the case it was concluded that the fact that co-detenu Page 2460 had been released on the basis of the opinion of the Advisory Board was not a defect warranting interference with the order of detention.
9. As the aforesaid decision was based on its own peculiar facts and circumstances, we do not think the ratio of the aforesaid decision would be made applicable to the present case.
10. As observed by the Supreme Court in (cited above), which has been followed by us in H.C.P.No. 484 of 2004, the fact that a co-detenu, who had been detained on the very same ground case, had been released by the State on the basis of the opinion furnished by the Advisory Board is a relevant factor, which should have been placed before the State Government at the time of confirmation. As observed by the Supreme Court and emphasised in the unreported decision, such opinion furnished by the Advisory Board, on the basis of which the order of detention was revoked by the State Government, is not binding on the State Government while considering the question of confirmation in respect of a co-detenu on the basis of the very same ground case but, it cannot be said that such opinion and order of revocation is not relevant. While considering such opinion, it is always open to the confirming authority not to apply such opinion in respect of a co-detenu. However, such opinion should not be with-held from the concerned authority, that is to say, the detaining authority or the confirming authority. It is for the detaining authority or the confirming authority to either accept or discard such opinion in a collateral case in respect of a co-detenu detained under the very same ground case. Ultimately, the matter has to be considered by the concerned authority and such relevant factor should not be with-held by the sponsoring authority on the ground that the opinion of the Board and the consequential order of revocation are irrelevant.
16. Subsequently, in another Division Bench in HCP.No. 918 of 2004 dated 8.2.2005, it was observed that the report of the Advisory Board in respect of co-detenu is a relevant material to be produced before the confirming authority and non-placing of such material would vitiate the order of detention.
17. In HCP.No. 484 of 2004 dated 14.9.2004, it was observed:
23. ...Where, however, the ground case is the same in respect of several detenues, how the case of a co-detenue is considered subsequently, by the Advisory Board or even the Court, is a relevant circumstance, which the State Government is required to consider at the subsequent stage of confirmation. This is not to suggest that in every case where the Advisory Board opines regarding the release of a co-detenue detained on the basis of the same ground case, all the co-detenues are to be released irrespective of other circumstances. We are stressing upon the fact that such a release is a relevant factor, which should be considered by the State Government and non-consideration of such relevant factor would vitiate the order of confirmation.
Page 2461 The aforesaid observation was subsequently followed in HCP.No. 737 of 2006 dated 10.10.2006.
18. Learned Counsel for the petitioner has further contended that in paragraph (xii) of the grounds of detention it had been indicated:
(xii) Under Notification No. 23/99-Cus.(NT) dated 13.4.1999 issued under Section 11 of the Customs Act, 1962, import of counterfeit currency notes or fake currency notes into India is prohibited absolutely. As per Section 111(d) of the Customs Act, 1962, any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force are liable to confiscation under that Section. As per Section 2(39) of the Customs Act, 1962, smuggling in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113. As per Section 119 of the Customs Act, 1962, any goods used for concealing smuggled goods shall also be liable to confiscation under that section. As per Section 121 of the Customs Act, where any goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation under that section. Further, import of currency is restricted under Foreign Trade Policy.
19. A specific ground has been taken that though the notification was heavily relied upon by the detaining authority, the detaining authority had failed to supply the same despite the request made in the representation. It appears that such notification was supplied only on 2.4.2007, by which date the Advisory Board has already met. In these peculiar circumstances, it is contended that the detenu was prejudiced.
20. Copies of the documents, which are relied upon by the detaining authority, should have been given along with the grounds of detention. Even assuming that in the present case there may be some dispute as to whether notification was merely a referred to document or relied upon document, when the detenu specifically request for copy of the notification, such request should have been complied with as expeditiously as possible to enable the detenu to make effective representation. The belated supply of copies serves no purpose as the chance of making effective representation before the Advisory Board and the State is over for all practical purposes. Therefore, it can be said that the order of detention got vitiated on account of such belated supply of documents.
21. Even though several other contentions have been raised, since we quash the order of detention on other grounds, it is not necessary to delve into those aspects.
22. For the aforesaid reasons, the orders of detention are quashed and the detenues are set at liberty forthwith unless their presence is required in any other case.