Rengashamy Sasiharan v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.2.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.1303 of 2007Rengashamy Sasiharan.. PetitionerVs.1. The State of Tamil Nadu rep. by the Secretary to the Government Public (SC) Department Fort St.George, Chennai.2. The Union of India rep. by its Secretary to the Government Ministry of Finance Department of Revenue New Delhi.3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiato issue Habeas Corpus H.C.P.No.1303/07 calling for the recordsrelating to the impugned Detention order in G.O.No.S.R.I/608-5/2007dated 10.08.2007 passed by the state of Tamil nadu rep. by thesecretary to the Government, public (SC) Department, Secretariat,Fort. George, Chennai & Quash the same and directing the respondentsto produce the body of the person of the detenu Rengashamy sasiharanS/o. Rengasamy pillai (OFEPOSA detenu now detained in central prison,chennai before this Honourable court and set him at liberty forthwith.For Petitioner : Mr.A.GaneshFor Respondents : Mr.N.R.Elango Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by P.D.DINAKARAN,J.)The petitioner herein was incarcerated by virtue of an order ofdetention in G.O.No.SR.I/608-5/2007, Public (S.C.) Department, dated10.8.2007 passed under Section 3(1)(i) of the Conservation of ForeignExchange and Prevention of Smuggling Activities Act, 1974 (in short“the Act”) by the first respondent, and as a consequence of suchmittimus, the petitioner (hereinafter referred to as “the detenu”)was interned in the Central Prison, Chennai. The relevant portion ofthe said order dated 10.8.2007 reads as under:"Order:WHEREAS, the Government of Tamil Nadu are satisfied withrespect to the person known as Thiru RengashamySasiharan, s/o Thiru Rengashamy Pillai (aged 27 years),resident of No.238, Peradhani Road, Kandy, Sri Lanka(now a remand prisoner in the Central Prison, Chennai)that with a view to preventing him from abetting thesmuggling of goods in future, it is necessary to makethe following order:-NOW, THEREFORE, in exercise of the powers conferredby section 3(1)(i) of the Conservation of ForeignExchange and Prevention of Smuggling Activities Act,1974 (Central Act 52 of 1974), the Government of TamilNadu hereby direct that the said Thiru RengashamySasiharan, s/o Thiru Rengashamy Pillai, be detained andkept in custody in the Central Prison, Chennai."(emphasis supplied)2. At this juncture, it is apt to refer Section 3(1) of the Act:"Section:3. Power to make orders detaining certainpersons.—(1) The Central Government or the State Government orany officer of the Central Government, not below therank of Joint Secretary to that Government, speciallyempowered for the purposes of this section by thatGovernment, or any officer of a State Government, notbelow the rank of a Secretary to that Government,specially empowered for the purposes of this section bythat Government may, if satisfied, with respect to anyperson (including a foreigner), that, with a view topreventing him from acting in any manner prejudicial tothe conservation or augmentation of foreign exchange or https://hcservices.ecourts.gov.in/hcservices/ with a view to preventing him from—(i)smuggling goods, or(ii)abetting the smuggling of goods, or(iii)engaging in transporting or concealing orkeeping smuggled goods, or(iv)dealing in smuggled goods otherwise than byengaging in transporting or concealing or keepingsmuggled goods, or(v)harbouring persons engaged in smuggling goods orin abetting the smuggling of goods,it is necessary so to do, make an order directing thatsuch person be detained.[Provided that no order of detention shall be made onany of the grounds specified in this sub-section onwhich an order of detention may be made under Section 3of the Prevention of Illicit Traffic in Narcotic Drugsand Psychotropic Substances Act, 1988 or under Section 3of the Jammu and Kashmir Prevention of Illicit Trafficin Narcotic Drugs and Psychotropic Substances Ordinance,1988 (J&K Ordinance 1 of 1988).]"(emphasis supplied)3. The facts, in brief, leading to the preventive detention ofthe detenu, as gathered from the grounds of detention, are: On3.7.2007, the detenu, holder of Sri Lankan Passport No.N1682329,dated 30.5.2006 arrived from Colombo by Sri Lankan Flight No.UL 121.He was intercepted while passing through the Green Channel by theIntelligence Officer of Air Intelligence Unit, Customs Airport,Chennai on a reasonable suspicion that he might be carryingobjectionable items like gold by way of concealment. The detenu wascarrying one dark grey colour "Pierre Delow" suitcase. Oninterception, the detenu was asked whether he was carrying anyvaluable items like gold, to which the detenu replied in negative.Not being satisfied, the detenu was taken to Air Intelligence Unitroom for detailed examination. On personal examination, in thepresence of witnesses, one crude gold chain weighing 350 gms, worn onthe neck and three crude gold bars weighing 350 gms. concealed in acopper hollow tube and worn on the right hand wrist like a wrist band(total wieght of gold – 700 gms) were recovered. On questioning asto the non-declaration of the gold and passing through the greenchannel, the detenu admitted his offence. The gold was seized. Thedetaining authority having satisfied that the detenu indulged insmuggling of goods detained him under Section 3(1)(i) of the Act. https://hcservices.ecourts.gov.in/hcservices/

4. However, the detaining authority passed the impugneddetention order to prevent the detenu from abetting the smuggling ofgoods in future, which attracts the offence under Section 3(1)(ii) ofthe Act.5. "Abetment of a thing" is defined in Section 107 of the IndianPenal Code as under:"Section 107. Abetment of a thing.- A person abets thedoing of a thing, who-First: -Instigates any person to do that thing; orSecondly: -Engages with one or more other person orpersons in any conspiracy for the doing of that thing,if an act or illegal omission takes place in pursuanceof that conspiracy, and in order to the doing of thatthing; orThirdly: -Intentionally aids, by any act or illegalomission, the doing of that thing.Explanation1:- A person who, by wilfulmisrepresentation, or by wilful concealment of amaterial fact which he is bound to disclose, voluntarilycauses or procures, or attempts to cause or procure, athing to be done, is said to instigate the doing of thatthing.Explanation 2: - Whoever, either prior to or at the timeof the commission of an act, does anything in order tofacilitate the commission of that act, and therebyfacilitates the commission thereof, is said to aid thedoing of that act.6. "Abettor" is defined in Section 108 of the Indian Penal Codeas under:"Section 108. Abettor.- A person abets an offence, whoabets either the commission of an offence, or thecommission of an act which would be an offence, ifcommitted by a person capable of law of committing anoffence with the same intention or knowledge as that ofthe abettor.Explanation 1: - The abetment of the illegal omission ofan act may amount to an offence although the abettor may https://hcservices.ecourts.gov.in/hcservices/ not himself be bound to be that act.Explanation 2: - To constitute the offence of abetmentit is not necessary that the act abetted should becommitted, or that effect requisite to constitute theoffence should be caused.Explanation 3: -- It is not necessary that the personabetted should be capable by law of committing anoffence, or that he should have the same guiltyintention or knowledge as that of abettor, or any guiltyintention or knowledge.Explanation 4-The abetment of an offence being anoffence, the abetment of such an abetment is also asoffence.Explanation 5 - It is not necessary to the commissionof the offence of abetment by conspiracy that theabettor should concert the offence with the person whocommits it. It is sufficient if he engages in theconspiracy in pursuance of which the offence iscommitted.7. A conjoint reading of the above provisions makes it clearthat in order to constitute abetment there should be more than oneperson and the abettor must be shown to have "intentionally" aidedthe commission of the crime. Mere proof that the crime charged couldnot have been committed without the interposition of the allegedabettor is not enough compliance with the requirements of Section 107of the Indian Penal Code. It is not enough that an act on the partof the alleged abettor happens to facilitate the commission of thecrime. Intentional aiding and therefore active complicity is the gistof the offence of abetment under the third paragraph of Section 107of Indian Penal Code, vide Shri Ram v. State of U.P., [1975] 3 SCC495.8. In the case on hand, the materials relied upon would showthat there is one another accused. In such a case, the detainingauthority having come to the subjective satisfaction in paragraph (6)of the grounds of detention that the impugned detention order isbeing passed to prevent the detenu from indulging in smuggling ofgoods in future, ought to have clamped the impugned order ofdetention as provided under Section 3(1)(i) of the Act, viz., toprevent him from smuggling goods, but, in the detention order it hasbeen stated to prevent him from abetting the smuggling of goods infuture, which attracts Section 3(1)(ii) of the Act and not 3(1)(i) ofthe Act. https://hcservices.ecourts.gov.in/hcservices/

9. There is apparent discrepancy as to the provision under whichthe impugned detention order has been passed and the purpose forpassing the same, viz., for preventing him from indulging insmuggling goods as provided under Section 3(1)(i) of the Act; or forpreventing him from abetting the smuggling of goods as provided underSection 3(1)(ii) of the Act.10. In case of preventive detention, it is settled law that itis absolutely necessary to communicate the grounds of detention tothe detenu in clear and unambiguous terms giving as much particularsas will facilitate making of an effective representation in order tosatisfy the detaining authority that the order is unfounded or void,vide Ajit Kumar Kaviraj v. District Magistrate [1975] 3 SCC 264.11. Under similar circumstances, the Larger Bench of the ApexCourt in Vijay Kumar Dharna v. Union of India, (1990) 1 SCC 606, whiledealing with an order of detention passed under the COFEPOSA Act,taking note of the satisfaction of the detaining authority recordedas under:“I am satisfied it is necessary to detain you underCOFEPOSA Act, 1974 with a view to preventing you fromconcealing, transporting smuggled goods as well asdealing in smuggled goods”held as under:"This satisfaction clearly reflects the groundscontained in clauses (iii) and (iv) of Section 3(1) ofthe Act. The above satisfaction does not speak ofsmuggling of goods or abetting the smuggling of goodswhich are the grounds found in the Gurmukhi version ofthe detention order. There is, therefore, considerableforce in the contention urged by the learned counsel forthe appellant that on account of this variance thedetenu was not able to effectively represent his casebefore the concerned authorities. In fact according tohim the appellant was confused whether he shouldrepresent against his detention for smuggling of goodsand/or abetting the smuggling of goods or for engagingin transporting and concealing smuggled goods and/ordealing in smuggled goods. Besides the English versionof the detention order was only for abetting thesmuggling of goods. The satisfaction recorded in theGurmukhi version of the grounds for detention is notconsistent with the purpose for detention found in thedetention order. It left the detenu confused whether heshould represent against the grounds in the detention https://hcservices.ecourts.gov.in/hcservices/ order or the satisfaction recorded in the grounds ofdetention. We are, therefore, of the opinion thatbecause of this variance the detenu was unable to makean effective representation against his detention andwas thereby denied his right under Article 22(5) of theConstitution."(emphasis supplied)12. In the instant case, as already pointed out, even though thedetaining authority based on materials available before it havearrived at a subjective satisfaction that the detenu indulged insmuggling activities attracting Section 3(1)(i) of the Act, hadchosen to hold that the impugned detention order was passed with aview to prevent him from abetting the smuggling of goods in future,which attracts Section 3(1)(ii) of the Act, thereby causing aconfusion in the mind of the detenu as to, to which material groundor reason of detention is he expected to submit his objection.13. Moreover, in the Tamil version of the detention order it isindicated that the detenu has indulged in smuggling of goods, and inthe English version it has been stated as if to prevent him fromabetting the smuggling of goods.14. At this juncture, it was submitted by Mr.N.R.Elango, learnedAdditional Public Prosecutor that mere wrong quoting of the provisionof detention would not vitiate the detention.15. Of course, it is well settled in law that quoting of wrongprovision does not take away jurisdiction of the authority under theAct, vide State of Karanataka v. Krishnaji Srinivas Kulkarni, [1994]2 SCC 558. 16. But, in the case on hand, it is not mere wrong quoting ofthe provision, viz., instead of detaining under Section 3(1)(ii) ofthe Act, they have stated Section 3(1)(i) of the Act. The detainingauthority in the grounds of detention arrived at a subjectivesatisfaction that the the offence attracts Section 3(1)(i) of theAct, viz., to prevent the detenu from indulging in smuggling. On theother hand, in the detention order they have stated that thedetention order is passed with a view to to prevent him fromabetting the smuggling of goods in future, which attracts Section 3(1)(ii) of the Act, thus raising a confusion in the mind of thedetenu as to, to which offence he has to submit his explanation.17. For the reasons aforesaid, we are convinced that theimpugned detention proceedings deprived a valid opportunity to thepetitioner to submit his effective representation and therefore thesame is vitiated. This habeas corpus petition is allowed and theorder of detention is set aside. No costs. The detenu is directed https://hcservices.ecourts.gov.in/hcservices/ to be set at liberty unless his presence is required in connectionwith any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sasiTo:1. THE STATE OF TAMIL NADU REP BYTHE SECRY TO THE GOVTPUBLIC (SC)DEPTCHENNAI -092. THE UNION OF INDIAREP BY ITS SECRY TO THE GOVTMINISTRY OF FINANCEDEPT OF REVENUENEW DELHI3. THE SUPTD OF CENTRAL PRISONCENTRAL PRISON PUZHALCHENNAI4. THE JOINT SECRETARY TO GOVT.PUBLIC (LAW & ORDER),FORT ST. GEORGE, CHENNAI - 9.5. THE PUBLIC PROSECUTORHIGH COURT,MADRAS. H.C.P.No.1303 of 2007CK(CO)JJM(20/03/08)