Mrs.Remya v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.04.2008CORAM THE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHH.C.P.Nos.1208 and 1209 of 2007Mrs.Remya..Petitioner inH.C.P.No.1208/07Smt.Saraswathi..Petitioner inH.C.P.No.1209/07-vs-1. State of Tamil Nadu rep.by Secretary to Government Public (SC) Department Fort St.George Chennai 600 0092. Union of India rep.by Secretary to Government Ministry of Finance Department of RevenueRespondents in both New Delhi..the H.C.Ps.H.C.P.No.1208 of 2007 is filed under Article 226 of TheConstitution of India, praying for the issue of a Writ of HabeasCorpus, to call for the records of the first respondent made inG.O.SR.I/530-5/07 Public (SC) Department dated 16.07.07, quash thesame, produce the body of A.Satish Kumar before this Hon'ble Courtand set at liberty the detenu A.Satish Kumar S/o Shri AnthonyPandian now detained in Central Prison, Puzhal under theprovisions of Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act. H.C.P.No.1209 of 2007 is filed under Article 226 of TheConstitution of India, praying for the issue of a Writ of HabeasCorpus, to call for the records of the first respondent made inG.O.SR.I/530-6/07 Public (SC) Department dated 16.07.07, quash thesame, produce the body of S.Ganesh before this Hon'ble Court andset at liberty the detenu S.Ganesh S/o Shri Sitaraman now detainedin Central Prison, Puzhal under the provisions of Conservation ofForeign Exchange and Prevention of Smuggling Activities Act. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners::Mr.B.KumarSenior Counsel forMr.N.BalajiFor Respondents::Mr.M.Babu Muthu MeeranAddl. Public Prosecutorfor R1Mr.K.Gunasekar, ACGSCfor R2ORDERD.MURUGESAN, J.The petitioner in H.C.P.No.1208 of 2007 is the wife of thedetenu-A.Satish Kumar, who has been detained by the StateGovernment in exercise of the powers conferred under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974 (Central Act 52 of 1974) by thedetention order made in G.O.SR.I/530-5/2007 Public (SC) Departmentdated 16.7.2007. Similarly, the petitioner in H.C.P.No.1209 of2007 is the mother of the detenu-S.Ganesh, who has been detainedby the State Government in exercise of the powers conferred underSection 3(1)(i) of the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 (Central Act 52 of1974) by the detention order made in G.O.SR.I/530-6/2007 Public(SC) Department dated 16.7.2007. As both the detenus have beendetained in respect of the same transaction, the grounds ofdetention in respect of the detenu-A.Sathish Kumar are alonereferred to in this order. 2. In the grounds of detention, it is alleged that on thebasis of specific intelligence to the effect that M/s NilaExporters had filed a shipping bill bearing no.000596 dated22.5.2007 in Inland Container Depot, Thudiyalur, Coimbatoredeclaring that the goods in the shipping bill documents are 100%cotton powerloom woven men's night pants and the consignee is M/sPrimark Tiends S.L.U., Dublin, Ireland and the said shipping billwas filed by the exporter under the Duty Drawback Scheme and thatthe exporter had misdeclared the goods in order to avail the unduebenefit of drawback, the Directorate of Revenue Intelligence,Chennai detained the export container covered under the aboveshipping bill. On examination of the said export consignment, itwas found that out of 268 cartons, 43 cartons were found tocontain 2981 numbers of pants appearing to be of inferior qualityand the remaining 225 cartons were found to containused/torn/dirty/cheap rags and used clothes/nighties appearing tobe of no commercial value. On the reasonable belief that thegoods are liable to confiscation, they were seized under theprovisions of the Customs Act, 1962. https://hcservices.ecourts.gov.in/hcservices/

3. A search was conducted on 29.5.2007 in the three officepremises of M/s Nila Group of Companies under the cover ofmahazar. A statement was recorded from the detenu on the same dayunder Section 108 of the Customs Act, 1962. Apart from variousdetails, the statement contained that one Thiru S.Ganesh, a friendof the detenu, obtained Form 13 from the steamer agents and handedover to the lorry driver on 25.5.2007 and for the shipping billthere was no CHA and on the basis of FOB value, drawback facilityof 7% was available and the FOB value of the declared goods isRs.50,39,170.50p to which, Rs.3,50,000/- would be available fordrawback. On further statement dated 30.5.2007, the detenu hadstated that he along with the said Ganesh have done exports underImport Export Code granted to individual exporters by RBI. Thevoluntary statements of the detenu, Thiru.S.Ganesh, Thiru.Ishwarand the officers of Inland Container Depot would reveal that intwo earlier exports made in drawback scheme in the name of M/sNila Exporters also similar goods were exported. Thus evidently,the export was organised by the detenu in the name of M/s NilaExporters to export inferior quality goods by inflating the valuewith a clear intention to obtain higher drawback resulting in thegoods being confiscated under Section 113 of the Customs Act. Asthe act on the part of the detenu amounted to smuggling, he wasclamped with the order of detention. Questioning the saiddetention order, H.C.P.No.1208 of 2007 has been filed. 4. Mr.B.Kumar, learned senior counsel appearing for thepetitioner would submit that the detention order is vitiated andis liable to be quashed for the following reasons. Firstly, thelearned senior counsel would submit that in the grounds ofdetention, the detaining authority has relied upon the seizure ofa diary in the handwriting of the detenu-Satish Kumar and that thecontents of the diary having been considered for arriving at thesubjective satisfaction, before the detention order was passed,was not supplied to the detenu, especially when the detainingauthority has referred in the statement of the detenu in paragraph(xvi) about the diary recovered from his residence and on enquirythe detenu had stated that the diary consisted of details ofpurchase, item value, in some cases, FOB value declared in thecorresponding shipping bills and in some cases the actual drawbackclaimed from the Customs department were noted down. Secondly, hewould submit that Form 13 which was also said to have beenobtained by Thiru.S.Ganesh from the steamer agents and was alsohanded over to the driver on 25.5.2007 was also relied upon andthe said document was also not supplied. Thirdly, he would submitthat out of the documents seized in the office premises of M/sNila Exporters, an authorisation letter dated 28.5.2005 statingthat the detenu-Satish Kumar had given authorisation as if he isthe General Manager of M/s Nila Exporters and as the saidauthorisation letter was considered as if it was prepared on28.5.2005 instead of 28.5.2007, the said authorisation letter wasnot only shown to the detenu to obtain his comments, but also toMr.Ishwar, who also speaks about the said document, and therefore https://hcservices.ecourts.gov.in/hcservices/ the said document is vital and material and the non-furnishing ofthe said document would vitiate the order of detention. Fourthly,he would submit that though the detenu has requested for supply ofthe above documents, they were not only supplied but also therewas no explanation for the non supply. Failure on the part of thedetaining authority to furnish the above documents in spite of therequest had resulted in the detenu making an effectiverepresentation and therefore the order of detention is vitiated. 5. Mr.M.Babu Muthu Meeran, learned Additional PublicProsecutor, on the other hand, would submit that all the abovedocuments are only referred documents and therefore merely becausethose documents were not supplied to the detenu, it would notrender the detention order vitiated. 6. We have carefully considered the above submissions. Beforewe delve upon the question as to whether the above documents arerelied upon documents or merely referred to documents, we areinclined to deal with the last submission made by Mr.B.Kumar,learned senior counsel that in spite of a representation forfurnishing those documents, they were not furnished to the detenu.In paragraph-9 of the affidavit filed in support of H.C.P.No.1208of 2007, the petitioner has specifically averred that he is unableto make a proper representation in the absence of the abovedocuments. In spite of his request, the documents were notsupplied and there was no explanation for the non supply of thosedocuments. Strangely also, there is nothing to indicate in thecounter affidavit as to the said submission. There is absolutelyno denial of the averments of the petitioner as to his request forthe copies of the documents namely, diary, Form 13 and theauthorisation letter. As far as the first document namely, diaryis concerned, from paragraph (xvi) of the grounds of detention, itis seen that the said diary was recovered from the residence ofthe detenu and on enquiry, the detenu had stated that the diaryconsisted of details of the purchase, item value, in some cases,FOB value declared in the corresponding shipping bills and in somecases the actual drawback claimed from the Customs department werenoted down. The above facts, which weighed the mind of thedetaining authority, would be a relevant factor for passing thedetention order. However, a perusal of paragraph (vii) of thegrounds of detention, it has been mentioned that on receivingmessage about the arrival of the container at Chennai Port, ThiruGanesh, a friend of the detenu, obtained Form 13 from the steameragents and handed over to the lorry driver on 25.5.2007 and thesame fact has also been referred to in paragraph (xiv), where thedetaining authority has stated "that the exporters used to givethe details of foreign buyers, but the goods were delivered inDubai, that the liner were requested to indicate the Port ofDischarge as indicated in the bill of lading and shipping billbecause it is to be shown in the bank remittances for obtainingdrawback, that further, they used to handover a set of bill oflading mentioning the Port of Discharge as in the shipping billand used to obtain separate charge for the same, but in fact the https://hcservices.ecourts.gov.in/hcservices/ port of discharge is to be mentioned as Dubai in the bill oflading, that they used to keep the original bill of ladingindicating port of discharge as Dubai with them; that in Form 13the port of discharge would be mentioned as Dubai, but in theshipping bill the port of discharge would be different, that theport of discharge in Form 13 should be as in the shipping bill,but since the container has to be loaded in the vessel going toDubai and that of Thiru.Ganesh, it was mentioned as Dubai in Form13, that this will be contrary to the port of discharge mentionedin the shipping bill, that the bill of lading containing actualport of discharge was not given. The petitioner had in theaffidavit in paragraph-8(c)(ii) has again averred that thedocument has not been supplied along with the grounds and if Form13 is one of the documents annexed to the shipping bill, meresupply of shipping bill without Form 13 amounts to supply oftruncated material as it is the requirement of law that thedocuments must be supplied as a whole. Therefore Form 13 has beenchosen to be relied upon the statement of the detenu. The firstrespondent while dealing with the above averment, in paragraph-7(c) of the counter affidavit has merely stated that Form 13 cannothave any effect on the above conscious involvement of the detenuto export inferior quality of goods to claim duty drawback and thenon supply of Form 13 would not cause any prejudice. 7. Likewise, in paragraph-8(d) of the affidavit, the petitionerhas averred that the grounds further say that the detainingauthority has relied upon the letter of administration said to bedated 28.5.2005 given by the detenu stating him to be the GeneralManager of M/s Nila Exporters and this authorisation letter isreferred to be as ante-dated, as it was prepared only on28.5.2007. Therefore the learned senior counsel submitted that itis a seriously relied upon document, but not furnished. Incontroverting the said averment, the first respondent inparagraph-7(e) had only said that it cannot have any prejudice onthe involvement of the detenu as set out.8. The question as to whether the detaining authority shouldgive copies of relied upon documents along with the grounds ofdetention and the non furnishing of the relied upon documents hasthe effect of vitiating the order of detention came up forconsideration before the Apex Court in the judgment in Pownammalv. State of Tamil Nadu and another (1999 SCC (Crl.) 231) and theApex Court has held that the non furnishing of such document wouldhave the effect of vitiating the order of detention. However,when the document is not relied upon and it is only a referreddocument, failure to furnish such a document may not vitiate theorder of detention. Subsequently, even a slight distinction isdrawn by a Full Bench of this Court in the judgment inG.Kalaiselvi v. State of Tamil Nadu rep.by Secretary to Governmentof Tamil Nadu, Home, Prohibition and Excise Department and another(2007) 2 MLJ (Crl.) 1841. After referring to Pownammal's case,the Full Bench in paragraph 21 has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Law is well settled that the detainingauthority is required to give copies of therelied upon documents along with grounds ofdetention and non furnishing of relied upondocument has the effect of vitiating the orderof detention. See Pownammal v. State of TamilNadu and another, (1999) SCC (Crl.) 231.Where, however, a document is not relied upon,yet the detenu asks for copy of such document,which is either referred to or has got somebearing, it is the duty of the appropriateauthority to furnish such copy or atleastindicate the reason why such copy is notsupplied to the detenu in spite of specificrequest by the detenu. As already indicated,where a document asked for is on the face ofit irrelevant, non furnishing of such documentis immaterial. Where, however, the documenthas got some relevance, refusal to supply suchcopy, in spite of specific request, withoutany valid reason, may have the effect ofvitiating the order of detention as the detenuis likely to be prejudiced, inasmuch as hewould not be in a position to make aneffective representation."9. From a reading of the above Full Bench judgment, itappears to us that when a document has got some relevance, refusalto supply the copy in spite of specific request without validreason will have the effect of vitiating the order of detention.The consideration as to the request for furnishing such copies hasrelevance with regard to the right to make an effectiverepresentation. It is now well settled that the right to makerepresentation is an integral part of the fundamental rightenshrined under Art.22(5) of the Constitution of India and suchright cannot be denied unjustly or without any sufficientexplanation. 10. A careful perusal of the detention order shows that theabove three documents, namely, diary seized from the detenu, Form13 and the letter of authorisation said to have been given by thedetenu have relevance for passing the detention order. This isevident from paragraph-4 of the grounds of detention, where thedetaining authority has stated "while arriving at the subjectivesatisfaction to detain you under the Conservation of ForeignExchange and Prevention of Smuggling Activities Act, 1974, theState Government have taken into consideration of all the factsand material referred to and relied upon in the grounds mentionedabove and also the statement, mahazars and bail petition." Theabove paragraph-4 came up for consideration before the Apex Courtin the judgment in A.Sowkath Ali v. Union of India and others (AIR2000 SC 2662) and the Apex Court has held that "the grounds of https://hcservices.ecourts.gov.in/hcservices/ detention leaves no room of doubt and makes it absolutely clearthat the State Government have taken into consideration and reliedupon all the facts and material referred to in the grounds ofdetention mentioned therein and when the grounds of detentionthemselves record that the State Government have taken intoconsideration and relied upon what is stated in the grounds, itmust also include all the documents". On the facts of this case,though the three documents in question, namely, diary, Form 13 andthe authorisation letter even if considered to be referred todocuments, they have some relevance for the detaining authority toarrive at the conclusion and therefore those documents should beconsidered only as relied upon documents. 11. It is not in dispute that a representation dated 4.8.2007was made to the detaining authority for furnishing the copies ofthe above documents. However, the representation was rejected byorder dated 22.8.2007 only by stating that all the documents whichwere taken into consideration for passing the detention order weresupplied to the detenu. The explanation is so vague and the orderdoes not mention as to which of the documents are referred to andwhich of the documents are relied upon to pass the order ofdetention. In the absence of any proper explanation and in theabsence of specific denial of the averments made in the affidavitthat these documents have been relied upon, in our consideredview, the failure to supply the above documents, in spite of therequest made on behalf of the detenu, has deprived the valuableright of the detenu to make a further representation to theAdvisory Board and on this ground alone, the detention order isliable to be quashed. 12. For all the above reasons, the impugned order ofdetention dated 16.7.2007 made in G.O.SR.I/530-5/07 Public (SC)Department is quashed and H.C.P.No.1208 of 2007 is allowed. Thedetenu is directed to be set at liberty forthwith, unless he isrequired in connection with any other case. 13. In view of the above, the impugned order of detentiondated 16.7.2007 made in G.O.SR.I/530-6/07 Public (SC) Departmentis also quashed and H.C.P.No.1209 of 2007 is allowed. The detenuis directed to be set at liberty forthwith, unless he is requiredin connection with any other case. ssSd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government of Tamil Nadu Public (SC) Department Fort St.George Chennai 600 0092. The Secretary to Government of India Ministry of Finance Department of Revenue New Delhi3. The Public Prosecutor High Court, Madras4. The Superintendent, Central Prison, Puzhal5. The Joint Secretary to Government, Public (Law and Order) Fort St. George, Chennai-9.2 ccs to Mr.S.Baskaran, Advocate, SR.18390 and 183911 cc to Mr.K.Gunasekar, Advocate, SR.19069skd (co)dv/9.4. Order inH.C.P.Nos.1208 & 1209 of 2007