Madras High Court
Sadik Basha Yousuf vs The State Of Tamil Nadu on 14 February, 2023
Bench: M.Sundar, M.Nirmal Kumar
2023/MHC/733
H.C.P.No.1544 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.02.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.1544 of 2022
Sadik Basha Yousuf
Son of Yousuf ... Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by the Secretary to the Government
Public (SC) Department
Fort St. George
Chennai-600 009.
2. Secretary to the Government of Tamil Nadu
Public (Law and Order) Department
Fort St. George
Chennai-600 009.
3. The Union of India
Rep. by the Secretary to the Government
Ministry of Finance
Department of Revenue (COFEPOSA Unit)
Central Economic Intelligence Bureau,
Janpath Bhavan, VI Floor, 'B' Wing
Janpath, New Delhi - 110 001.
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H.C.P.No.1544 of 2022
4. The Superintendent of Central Prison
Central Prison, Puzhal, Chennai. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus to call for the records relating to the
detention order, in G.O.SR.1/5-8/2022, Public (SC) dept dated 16.06.2022
passed by the first respondent, quashing the same and directing the
respondents to produce the body of the person of the detenu, Sadik Basha
Yousuf, son of Yousuf now detained in the Central Prison, Puzhal, Chennai
as COFEPOSA, detenu before this Hon'ble Court and set him at liberty.
For Petitioner : Mr.B.Satish Sundar
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
R1, R2 and R4
Mr.R.Rajesh Vivekananthan
Deputy Solicitor General, for R3
ORDER
[Order of the Court was made by M.SUNDAR, J.,] This order will now dispose of the captioned HCP.
2. This order has to be read in conjunction with and in continuation of earlier proceedings made in the captioned HCP in the previous listings dated 07.02.2023 and 09.02.2023 which read as follows:
Page Nos.2/30https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 Proceedings dated 07.02.2023 'Captioned 'Habeas Corpus Petition' ['HCP'] has been filed in this Court on 05.08.2022 assailing a detention order dated 16.06.2022 bearing reference G.O.No.SR.I/5-8/2022 made by the second respondent [hereinafter 'Detaining Authority' for the sake of convenience and clarity]. This detention order shall hereinafter be referred to as 'impugned detention order' for the sake of convenience and clarity.
2. To be noted, impugned detention order has been made under Section 3(1)(i) and 3(1)(iii) of 'The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974)' [hereinafter 'COFEPOSA Act' for the sake of convenience]. The impugned detention order has been made on the basis of one solitary case. The date of occurrence is 28.12.2021 when the detenu was about to take a flight to Dubai from Chennai.
3. In his campaign against the impugned detention order, Mr.M.M.K.Alfudeen, learned counsel for petitioner submits that the 'live and proximate link' between grounds and purpose of detention has snapped as the solitary occurrence which is the substratum of the impugned detention order occurred on 28.12.2021(remanded to custody on 29.12.2021) but the impugned detention order has been made only on 16.06.2022.
Learned counsel for petitioner points out that another point on which his campaign against impugned detention order is predicated is that there is a delay of 60 days in considering his Page Nos.3/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 representation.
4. Learned Additional Public Prosecutor, who is representing Respondents 1, 2 and 4 requests for a short accommodation to get instructions and responding to this argument of the learned counsel for petitioner.
5. Be that as it may, we find from the order sheet in the case file that Hon'ble predecessor Bench has ordered notice to third respondent returnable by 07.02.2023 vide proceedings made on 10.01.2023. Court notice has been sent but the fate is awaited. Learned counsel for petitioner submits that he has served on Deputy Solicitor General of India and requests for a short accommodation to file 'Affidavit of Service' ['AOS'].
List day-after-tomorrow. List on 09.02.2023.' Proceedings dated 09.02.2023 'Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 07.02.2023.
2. Mr.M.M.K.Alfudeen, learned counsel for petitioner and Mr.R.Muniyapparaj, learned State Additional Public Prosecutor for respondents 1, 2 and 4 are before us. Mr.R.Sanjay, learned counsel representing Mr.R.Rajesh Vivekananthan, learned Deputy Solicitor General is before us on behalf of third respondent.
3. Learned counsel for petitioner has filed an affidavit of service demonstrating that the third respondent has been duly served on 12.01.2023 itself.
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4. Learned counsel for petitioner and learned State Additional Public Prosecutor are ready. Learned counsel representing learned Deputy Solicitor General for third respondent requests for short accommodation. Request for accommodation acceded to.
5. List on 14.02.2023.'
3. The aforementioned proceedings capture the crux and gravamen of the matter besides setting out the trajectory the captioned matter has taken before us. As the aforementioned proceedings shall be read as an integral part and parcel of this order, the short forms, abbreviations and short references used in the aforementioned proceedings shall continue to be used in the instant order also.
4. Adverting to the aforementioned proceedings dated 07.02.2023, Mr.R.Muniyapparaj, learned State Additional Public Prosecutor for respondents 1, 2 and 4 submits that he has got instructions.
5. Mr.R.Rajesh Vivekananthan, learned Deputy Solicitor General for Page Nos.5/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 respondent No.2 has placed before us a counter affidavit.
6. Mr.B.Satish Sundar, learned counsel on record for petitioner is before us.
7. We heard all the aforementioned counsel.
8. In the proceedings dated 07.02.2023, petitioner's live and proximate link between the grounds of detention and purpose of detention snapping that has been raised by petitioner's counsel in his campaign against impugned detention order has been captured. Three other points were raised and all the four points are as follows:
(i) Arrest was made on 29.12.2021 but the impugned detention order has been made only on 16.06.2022. This point has been raised in paragraph No.7(i) of HCP affidavit and it has been met in paragraph No.9 of counter affidavit of the Detaining Authority. Live and proximate link between the grounds of detention and purpose of detention snapping point Page Nos.6/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 has not been explained in the counter;
(ii) A 'show cause notice' ['SCN'] dated 22.06.2022 was issued to the detenu inter alia under Section 124 of 'the Customs Act, 1962 (52 of 1962)' [hereinafter 'Customs Act' for the sake of brevity and convenience] and the detenu has sent a representation on 04.07.2022. SCN and reply were not placed before the Advisory Board. This has been raised in paragraph No.7(xiv) of HCP affidavit and it has been met in paragraph No.20 of counter affidavit of the Detaining Authority but it is vague;
(iii) Third point is, the detenu has sent a representation dated 04.07.2022 but there is delay in disposing of the representation as State Government has disposed of the same only on 02.08.2022 and Central Government has disposed of the representation only on 23.08.2022. Counter affidavits do not explain this delay adequately;
(iv) Fourth point pertains to Tamil translation of two Page Nos.7/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 vital documents in the grounds of detention not being given to the detenu. In this regard, learned counsel for petitioner submitted that the literacy level of the detenu is only class 8 in school, his mother tongue is Tamil and he is conversant only with Tamil. Continuing in above direction, learned counsel draws the attention of this Court to Assayer's report at page Nos.20 and 21 of the booklet wherein valuation of alleged contraband has been set out and page Nos.30 and 31 of the booklet which are inventory of goods detained / seized. These have not been furnished in Tamil. It is pointed out that there is no disputation on this aspect of the matter by the State.
9. The response of learned Additional Public Prosecutor to the aforesaid points are as follows:
(i) Adverting to paragraph No.9 of counter affidavit of the Detaining Authority, learned Additional Public Prosecutor submitted that live and proximate link between the grounds of detention and purpose of detention has not snapped. It was Page Nos.8/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 submitted that several documents were sought for from customs authorities and substantial time was taken for the same being furnished;
(ii) As regards second point, paragraph No.20 of the counter affidavit was reiterated;
(iii) As regards the third point, adverting to paragraph No.23 of counter affidavit of Detaining Authority and referring to chronicle therein, learned Additional Public Prosecutor submitted that there is no delay. As regards delay on the part of Central Government, adverting to paragraph No.6 of counter affidavit filed by third respondent, learned Deputy Solicitor General submitted that there is no delay in the light of averments contained therein;
(iv) As regards the fourth point which pertains only to the Detaining Authority, learned Additional Public Prosecutor, adverting to paragraph Nos.15 and 20 at Page Nos.18 and 20 of the counter affidavit submitted that the detenu is a frequent traveler and this really a non-starter. To be noted, this point is Page Nos.9/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 not canvassed qua the third respondent as it is a question of translation in the grounds. Adverting to paragraph No.12 of counter affidavit, it was submitted by learned Additional Public Prosecutor that the detenu has traveled to several countries and therefore, this point is unsustainable;
10. As regards learned Deputy Solicitor General, he supported the contentions of learned Additional Public Prosecutor. To be noted, the submissions of learned Deputy Solicitor General on specific points have been captured while setting out the rival stated position supra.
11. We now proceed to consider the four points one after the other.
12. Paragraph No.7(i) of HCP affidavit, wherein live and proximate link between the grounds of detention and purpose of detention snapping point raised reads as follows:
'7(i) The customs officers are alleged to have seized the diamonds / gems from me on 28.12.2021 and I am alleged to have given confessional statement on the same day. Though the alleged Page Nos.10/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 offence took place on 28.12.2021 and the necessary documents came into existence immediately thereafter and the last document was my bail order dated 17.02.2022 the detention order was not passed against me immediately. But on the contrary, the detaining authority has passed the detention order against me only on 16.06.2022 after an inordinate and unreasonable delay of 6 months.
During this period I am not alleged to have committed any similar smuggling activities and therefore there is no proximity or nexus between the alleged offending act and the detention order. Due to the long lapse of time, the alleged incident has become stale and the live link is snapped. That apart, the detaining authority, before issuing the detention order, has not applied his mind to the subsequent events and materials. Thus there is no fresh application of mind by the detaining authority at the time of passing the detention order. Therefore the inordinate and unreasonable delay of nearly 6 months in passing the detention order vitiates the detention itself.' Answer to this by the Detaining Authority in paragraph No.9 of the counter affidavit of the Detaining Authority reads as follows:
9. It is humbly submitted that as far as the averment made in paragraph 7(i) of the affidavit, the following facts are submitted before this Hon'ble Court:-
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13. The next point turns on SCN, reply and the same not being placed before the Advisory Board. This is adequately articulated by the petitioner in paragraph No.7(xiv) of HCP affidavit which reads as follows:
'7(xiv) The detenu submits that a show cause notice dated 22.06.2022 under Section 124 of the Customs Act was issued by the customs department and served to the detenu through the 4th respondent in the prison and the detenu sent a reply to the show cause notice dated 7/16-7-022 to the customs authorities who are none other the sponsoring authority through his counsel. The reply was received by the customs authorities on 18.07.2022. But the show cause notice and the reply to the show cause notice were not placed before the Advisory Board. Non placing of the above documents before the Advisory Board vitiates the detention itself.' Answer to this in paragraph No.20 of the counter affidavit of the Detaining Authority reads as follows:
'20. It is humbly submitted that as far as the averments made in paragraph 7(xii), 7(xiv) and 7(xvii) of the affidavit, all the essential documents that were relied upon for passing detention order against the detenu had been supplied to him with due acknowledgment.' Page Nos.19/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 We carefully considered the answer of the Detaining Authority. We have no hesitation in saying that this is hardly an answer to the point that has been raised. Paragraph No.20 of the counter affidavit merely says that all essential documents that were relied on for passing detention order against the detenu had been supplied to him with due acknowledgment. Therefore, we have no difficulty in holding that this is no answer to a point that has been raised with specificity i.e., the point that SCN and reply were not placed before the Advisory Board.
Be that as it may, it is deemed appropriate to add that this Hon'ble Court has held in Rahamath Nisha case [Rahamath Nisha Vs. The State of Tamilnadu and two others in HCP (MD) No.755 of 2011 and M.P(MD) No.1 of 2011], Elizabeth Rani case [Elizabeth Rani Vs. The State of Tamil Nadu and two others in HCP No.2088 of 2008] and Rani case [R.Rani Vs. State of Tamil Nadu and two others in HCP No.1164 of 2001] that SCN and reply to SCN not being placed before Advisory Board is fatal and is certainly a ground to dislodge the impugned detention order. Therefore, we accept the second point also.
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14. This takes us to the third point i.e., delay in considering the representation. The detenu / petitioner has sent a representation dated 04.07.2022. As regards the State Government disposing of this only on 02.08.2022, paragraph No.23 of counter affidavit of the Detaining Authority is relevant and the same reads as follows:
Page Nos.21/30https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 A careful perusal of paragraph No.23 supra, which is a chronicle of sorts i.e., dates and events makes it clear that parawar remarks were called for from the Sponsoring Authority on 11.07.2022 and the Sponsoring Authority has responded only on 19.07.2022. This 10 days delay clearly remains unexplained, not to say of the other delays at various other stages. Therefore, we have no difficulty in coming to the conclusion that there has Page Nos.22/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 been delay in considering the representation of the petitioner by the State Government. As regards the Central Government, the representation has been disposed of on 23.08.2022 and the answer to this is in paragraph Nos.6 and 7 of the counter affidavit of the third respondent which read as follows:
'6. I submit that the representation dated 04.07.2022 addressed to the Secretary, Ministry of Finance, New Delhi submitted by the petitioner through the Superintendent, Central Prison, Puzhal, Chennai was received on 18.07.2022 by the Ministry. The information on the said representation was sought from both the Sponsoring Authority i.e., Commissioner of Custom (Airport), Chennai on the same day i.e., 18.07.2022. The requisite information was received only on 26.07.2022 from the Sponsoring Authority and that from the Detaining Authority only on 01.08.2022. While forwarding the said information, the State Government also informed that the case has already been referred to the State Advisory Board on 11.07.2022 and the meeting of the Advisory Board was fixed for 01.08.2022.
7. I humbly submit that in view of the above facts, the said representation dated 04.07.2022 was kept pending for want of report / opinion of the Advisory Board as per the law laid down by the Hon'ble Supreme Court in Criminal Appeal No.829/2015 (Golam Biswas Vs. Union of India & Others) and W.P. (Crl.) No.362 of 2019 (Ankit Ashok Jain Vs. Union of India & Ors.)' Page Nos.23/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 We are of the view that the argument that the Government was waiting for the report of Advisory Board does not really weigh with us. The reason is, consideration of the representation or making a representation against a preventive detention order is a Constitutional safeguard ingrained in Article 22(5) of Constitution of India. We are conscious of the fact that we are not dealing with punitive detention but we are dealing with preventive detention. We are dealing with HCP which is a high prerogative writ. To put it in simple terms, preventive detention is not a punishment.
Therefore, we find that the Constitutional safeguard ingrained in clause (5) of Article 22 of Constitution of India qua detenu who has suffered incarceration in the case on hand owing to delay on the part of State and Central Governments in disposing of the representation also enures to the benefit of the petitioner in his campaign against the impugned detention order.
15. This takes us to the fourth point which obviously is directed only against the Detaining Authority. As regards the fourth point is concerned, Page Nos.24/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 the stated positions of the petitioner and the State have been captured supra.
Therefore, we refrain ourselves from restating the same. Suffice to say that by way of answer to this, paragraph Nos.15 and 20 of the counter affidavit of Detaining Authority read as follows:
'15. It is humbly submitted that as far as the averment made in paragraph 7(vii) of the affidavit, the documents mentioned by the detenu are only the details of valuation of jewellery and inventory of goods detained / seized and a basic English knowledge is enough to understand the details. Further the above details had been explained by the authorities in the Central Prison, Puzhal, Chennai and he has also acknowledged it. Moreover, the petitioner has already presented a representation dated 04.07.2022 in English and he has signed the said representation in English. Hence, it is clear that he can write and understand English very well. Therefore, the averment made by the petitioner has no merit.
20. It is humbly submitted that as far as the averments made in paragraph 7(xii), 7(xiv) and 7(xvii) of the affidavit, all the essential documents that were relied upon for passing detention order against the detenu had been supplied to him with due acknowledgment.' A careful perusal of the stated position as regards non furnishing of Assayer's report which is a valuation of purported contraband qua interception of the petitioner on 28.12.2021 (remanded to custody on Page Nos.25/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 29.12.2021) and inventory of goods detained / seized brings to light one point clearly. There is no disputation, disagreement or contestation that Tamil translations were not given to the detenu. Likewise, there is no disputation or disagreement that the literacy level of the detenu is only class 8 in school. Therefore there is no disputation that the detenu is conversant only with his mother tongue i.e., Tamil. In this backdrop, the argument that the detenu could have taken the help of a lawyer is hardly convincing. Law is well settled that the translation of the grounds of detention in a language the detenu is conversant has to be provided to the detenu and this is imperative. To be noted, this is a facet of Constitutional guarantee ingrained in Article 22(5) of Constitution of India. In certain Statutes like Act 14 of 1982, this Constitutional guarantee has been statutorily codified in numeric terms also by saying that the grounds of detention has to be furnished to the detenu within five days from the date of detention order.
To be noted, this is vide Section 8(1) of Act 14 of 1982. In this regard, learned counsel for petitioner pressed into service Daku Devi case [Daku Devi vs State of Tamil Nadu and another] being order dated 21.09.2004 made by Hon'ble Division Bench of Madras High Court in H.C.P.No.590 of Page Nos.26/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 2004. A careful perusal of Daku Devi case brings to light that this case arose under COFEPOSA and that was also a case of alleged carrying of contraband by the detenu. In this Daku Devi case, the point that Tamil translation of vital documents have not been supplied was raised. Adverting to this, a Hon'ble Division Bench, repelled the contention of the State that the detenu knew English in that case and held that the detenu in that case had specifically sought for copies in Hindi but that was not given. In the case on hand, there is no disputation that the detenu has specifically sought for Tamil translation of the documents. We are also convinced that two documents pointed out by learned counsel for petitioner are certainly vital as one is a valuation i.e., valuation of purported contraband and the other is inventory of goods seized at the time of interception. This being vital documents and literacy level of the detenu being class 8 in school, in the light of Daku Devi case rendered by Hon'ble Division Bench, we have no hesitation in coming to the conclusion that there is infraction of the detenu's constitutional rights to make an effective representation under Article 22(5) of Constitution of India in the light of Tamil translation of vital documents not being given in Tamil i.e., mother tongue over which the detenu is Page Nos.27/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 conversant. As the campaign of the petitioner on all the four points i.e, petitioner's campaign against the impugned detention order are sustained, impugned detention order deserves to be dislodged.
16. Ergo, the sequitur is, captioned HCP is allowed. Impugned detention order dated 16.06.2022 bearing reference G.O.No.SR.I/5-8/2022, Public (SC) Department made by the second respondent is set aside and the detenu Thiru.Sadik Basha Yousuf, son of Late Yousuf is directed to be set at liberty forthwith, if not required in connection with any other case / cases.
There shall be no order as to costs.
17. Captioned HCP ordered on the above terms. There shall be no order as to costs.
(M.S.,J.) (M.N.K.,J.)
14.02.2023
Index : Yes
Speaking
Neutral Citation : Yes
mk
P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal.
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1. The State of Tamil Nadu Rep. by the Secretary to the Government Public (SC) Department Fort St. George Chennai-600 009.
2. Secretary to the Government of Tamil Nadu Public (Law and Order) Department Fort St. George Chennai-600 009.
3. The Union of India Rep. by the Secretary to the Government Ministry of Finance Department of Revenue (COFEPOSA Unit) Central Economic Intelligence Bureau, Janpath Bhavan, VI Floor, 'B' Wing Janpath, New Delhi - 110 001.
4. The Superintendent of Central Prison Central Prison, Puzhal, Chennai.
5. The Public Prosecutor High Court, Madras.
M.SUNDAR, J., and Page Nos.29/30 https://www.mhc.tn.gov.in/judis H.C.P.No.1544 of 2022 M.NIRMAL KUMAR, J., mk H.C.P.No.1544 of 2022 14.02.2023 Page Nos.30/30 https://www.mhc.tn.gov.in/judis