T.Ananthi v. The State of Tamilnadu

In the High Court of Judicature at Madras Dated: 16.04.2009Coram:The Honourable Mr.Justice ELIPE DHARMA RAOand The Honourable Mr.Justice C.T.SELVAMH.C.P. No.1091 of 2008T.Ananthi...Petitioner Vs.1. The State of Tamilnadu, rep. By its Secretary (Public) (SC) to Govt., Fort St. George, Chennai-600 009.2. The Secretary to Govt., Govt. of India, Ministry of Finance, Dept. Of Revenue (COFEPOSA Unit) Central Economic Intelligence Bureau, New Delhi.3. The Superintendent, Central Prison, Madurai. ...RespondentsPetition under Article 226 of the Constitution of India for theissuance of a Writ of Habeas Corpus to call for the recordspertaining to the detention order in G.O.No.SRI/109/7/08 Public(S.C.) Dept., dated 12.3.2008 by the first respondent herein and setaside the same and direct the respondents to produce the detenuVELLAISAMY THIRUGNANAM, before this Court and set him at liberty.For Petitioner..Mr.B.Kumar, Senior Counselfor Mr.A.K.S.Thahir.For Respondents..Mr.N.R.Elango, Addl.P.P. For R.1& R.3Mr.M.Gopikrishnan,SCGSC – R.2. https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by ELIPE DHARMA RAO, J.)Heard the learned Senior Counsel for the petitioner as well asthe learned Additional Public Prosecutor for the respondents. 2. It is contended by the learned senior counsel appearing forthe petitioner that the impugned order of detention was passed on thebasis of a single and solitary incident of an alleged act ofsmuggling of goods, which can never be a justifiable ground forinvoking the harsh provisions of preventive detention law underCOFEPOSA. It was further contended that it was not an organised actor manifestation of an organised activity. According to the learnedsenior counsel, the test in such cases is to see whether the act issuch that it gives rise to an inference that the person wouldcontinue to indulge in similar prejudicial activity. The tortured,dictated, extorted and retracted statements of the accused/detenu,will never be a sufficient ground for detention under a dark law.3. To analyse the above said ground, the learned senior counselappearing for the petitioner has taken us through the grounds ofdetention to show under what circumstances the impugned order ofdetention was passed. On 29.1.2008, the detenu, who is holder of an Indian passportNo.B1894254 dated 11.5.2000, arrived at Chennai from Kualalumpur byJet Airways. He was intercepted by the Customs Officer in AnnaInternational Airport, Chennai, while he was crossing through 'Green'Chennal, on a reasonable suspicion that he might he carrying somedutiable item like gold by way of concealment; when questioned, thedetenu declared that he was not carrying any such item. Notsatisfied with his declaration, the Officer took the detenu alongwith his two checked-in-baggages to the Air Intelligence Unit Roomsituated at the Arrival Hall of the Anna International Airport for adetailed examination. Before examination, the detenu was asked againfor the declaration of goods and money, if any carried by him, in thepresence of two independent witnesses, to which, he reiterated thathe was not carrying any dutiable item, like gold, etc. Onexamination, he was found in possession of 500 Malaysian Ringits andon opening one of the checked-in-baggages, a grey and black clolour"Campro" stroller suitcase, a white paper packet covered by acellophane tape was found concealed among his personal effects and oncutting open the white paper, it was found that new gold jewellerywas packed in a plastic pouch and covered with carbon paper, weighing904 grams; thereafter, the blue colour "Polo" Zipper bag was opened asimilar packet was found, and on cutting open the same, old goldjewellery weighing 270 grams were found. A personal search of thedetenu was conducted in the presence of the witnesses and nothingincriminating was recovered. When the detenu was asked about the https://hcservices.ecourts.gov.in/hcservices/ concealment of the gold jewellery, the detenu admitted the offence.Therefore, the detenu was arrested on 29.1.2008 under Section 104 ofthe Customs Act 1962 as there were reasons to believe that he isguilty of an offence punishable under Sections 132 and 135 of theCustoms Act 1962 for having attempted to smuggle the gold jewelleryvaluing Rs.12,34,182/= by way of mis-declaration and concealment.Thereafter, he was produced before the learned Additional ChiefMetropolitan Magistrate, E.O.II, Egmore, Chennai, who remanded him tojudicial custody upto 11.2.2008. Thereafter, the order of detentionwas passed on 12.3.2008.4. Learned senior counsel pointed out that the detenu has givena voluntary statement before the Customs Official on 29.1.2008explaining the sequence of events that the gold jewellery weighing1174 grams was given to him by his father-in-law to be delivered tothe detenu's nice Sangami at Madurai, for the purpose of hermarriage; and that the detenu's father-in-law gave him 500 MalaysiaRingits for his expenses. The detenu also requested that he may bepardoned since it is his first offence. Except this, there is noother material available before the authority to establish that thedetenu is a habitual offender so as to detain him under the COFEPOSAAct, and therefore, the impugned order of detention is liable to beset aside.5. The learned senior counsel further submitted that in similarcircumstance, the Apex Court in Pooja Batra v. Union of India &Others reported in 2009 (2) CTC 341, in paragraph No.12 of thejudgment, has held as follows:-"12. As already discussed, even based on one incidentthe Detaining Authority is free to take appropriate actionincluding detaining him under COFEPOSA Act. The DetainingAuthority has referred to the violation in respect ofimportable goods covered under Bill of Entry No.589144dated 25.4.2007. In an appropriate case, an inferencecould legitimately be drawn even from a single incident ofsmuggling that the person may indulge in smugglingactivities, however, for that purpose antecedents andnature of the activities already carried out by a personare required to be taken into consideration for reachingjustifiable satisfaction that the person was engaged insmuggling that that with a view to prevent, it wasnecessary to detain him. If there is no adequate materialfor arriving at such a conclusion based on solitaryincident the Court is required and is bound to protect himin view of the personal liberty which is guaranteed underthe Constitution of India. Further subject satisfaction ofthe authority under the law is not absolute and should notbe unreasonable. In the matter of preventive detention,what is required to be seen is that it could reasonably be https://hcservices.ecourts.gov.in/hcservices/ said to indicate any organized act or manifestation oforganized activity or give room for an inference that thedetenu would continue to indulge in similar prejudicialactivity warranting or necessitating the detention of theperson to ensure that he does not repeat this activity infuture. In other words, while a single act of smugglingcan also constitute the basis for issuing an order ofdetention under the COFEPOSA Act, highest standards ofproof are required to exist. In the absence of anyspecific and authenticated material to indicate that he hadthe propensity and potentiality to continue to indulge insuch activities in future, the mere fact that on oneoccasion person smuggled goods into the country would notconstitute a legitimate basis for detaining him under theCOFEPOSA Act."6. The learned senior counsel submitted that the above saidobservation was made by the Supreme court following the judgmentreported in AIR 1994 SC 2179 (Attorney General for India v. AmratlalPrajivandas). Therefore, except the voluntary statement given by thedetenu, there are no materials available to establish that the detenuhas indulged in an organized act or that his act is the manifestationof an organized activity or that it gives room for an inference thatthe detenu would continue to indulge in similar prejudicial activitywarranting or necessitating his detention to ensure that he does notrepeat this activity in future, no other material is gathered by theauthorities to satisfy the above qualifications. Therefore, thedetaining authority has failed to establish that the detenu isinvolved in an organized act or his act is the manifestation of anorganized activity to indulge in similar prejudicial activity infuture.7. The learned senior counsel has brought to the notice of theCourt an order of a Division Bench of this Court (wherein EDRJ is aparty) passed in H.C.P. No.1005 of 2008 dated 17.3.2009 (SulthanIbrahim vs. State of Tamil Nadu), wherein it has been held that thedetention order was passed only on the ground of concealment and mis-declaration of the goods transported by him valued at Rs.25,000/- andthat the detenu had paid the deficit duty on the goods transported byhim as determined by the Customs Department and that the detenu wasin jail from 28.3.2008 i.e., from the date of passing of the order ofdetention till the disposal of the Habeas Corpus Petition.8. The learned senior counsel has submitted that in the case onhand also, the same principle is adopted viz., the AdditionalCommissioner of Customs, Airport, in his proceedings dated 27.2.2009,has held :"However, I am inclined to accept the argument putforth by the counsel that this is not a case of ingeniousconcealment as the impugned gold was recovered from among https://hcservices.ecourts.gov.in/hcservices/ the personal effects of the passenger and not from anysecret cavity or false bottom. As there is no ingeniousconcealment and the seized articles are jewellery, I amalso inclined to accede to the plea of the passenger forredemption of the seized goods in view of the recentjudgments of the Hon'ble CESTAT, which has ordered therelease of gold on payment of redemption fine and penalty.The above observation goes to the root of the matter. The above saidorder passed by the Additional Commissioner of Customs, Airport,further gave an option to redeem the aforesaid gold jewellery underSection 125 of the Customs Act, 1962 on payment of a fine ofRs.6,00,000/- and a penalty of Rs.1,25,000/- under Section 112 of theCustoms Act, 1962. In these circumstances, the learned seniorcounsel would submit that the detenu may be set at libertyconsidering these factors.9. On the other hand, the learned Additional Public Prosecutorsubmitted that it cannot be argued at this stage that the detenu hasinvolved himself only in a single solitary incident. The object ofpreventive detention is only to prevent the future indulgence of theparticular individual in similar activities. He has stronglycontended that the petitioner, with a mala fide intention, hadconcealed the above mentioned gold jewellery in two plastic pouchescovered with carbon paper in a white paper packet covered withcellophane tapes, which were found concealed among his personaleffects and had not declared them to the officials who enquired himand the said act itself is a ground for coming to the conclusion thathe is indulging in smuggling of the above said gold and currenciesamounting to 500 Malaysian Ringits. Therefore, the impugned order ofdetention has been passed only to prevent him from indulging infuture activities of this nature, which is sustainable in law. Thelearned Additional Public Prosecutor has also relied upon thejudgment in Pooja Batra v. Union of India & Others reported in 2009(2) CTC 341 in support of his contentions.10. However, with regard to the clarifications on an organizedact or manifestation of organized activity, we are unable toappreciate the contentions raised by the learned Additional PublicProsecutor. When the confession statement was given by the detenuvoluntarily, the Officer, who passed the order sponsoring the case ofthe detenu to prevent him from indulging in future activities, hadfailed to collect any other material to confirm whether the detenuhas a father-in-law by name P.S. Loganathan and has a niece by nameSangami at Madurai, for whose marriage the above said jewellery weresent. Therefore, in the absence of any other material placed onrecord to refute the statement of the detenu, especially in view ofthe fact when the authorities have failed to produce any directevidence or material, we cannot come to a conclusion that thedetenu's indulgence in a solitary incidence amounts to an organized https://hcservices.ecourts.gov.in/hcservices/ act or manifestation of organized activity, or that it gives room foran inference that the detenu would continue to indulge in similarprejudicial activity warranting or necessitating his detention so asto ensure that he does not repeat this activity in future. 11. Therefore, considering the above said facts andcircumstances of the case and the subsequent development of aredemption order having been passed by the Additional Commissioner ofCustoms, Airport, on 27.2.2009 and by virtue of the statement thatthe penalty amount having been paid by the detenu, we consider thatthere is no necessity to continue the detention order against thedetenu and accordingly, the impugned order of detention is set aside. In the result, the habeas corpus petition is allowed. Thedetenu is directed to be set at liberty forthwith, unless he isrequired in connection with any other case or cause.Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrargs.To1. The Secretary (Public) (SC) to Government, State of Tamilnadu, Fort St. George, Chennai-600 009.2. The Secretary to Government, Government of India, Ministry of Finance, Dept. Of Revenue (COFEPOSA Unit) Central Economic Intelligence Bureau, New Delhi.3. The Superintendent, Central Prison, Madurai.4. The Joint Secretary to Government, Public(Law & Order),Fort.St.George,Chennai-9.5. The Public Prosecutor, High Court, Madras.+ 1 CC to Mr.M.Gopikrishnan,Advocate,SR.15073+ 1 CC to Mr.A.K.S.Thahir Bilal,Advocate,SR.14678H.C.P. No.1091 of 2008RJ(CO)EM/30.9