Smt.Hajirabeevi v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.04.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHH.C.P.No.1445 of 2007Smt.Hajirabeevi.. Petitioner-Vs-1. The State of Tamilnadu represented by the Secretary to the Government Public (SC) Department Fort St.George Chennai 600 0092. The Union of India represented by the Secretary to the Government Ministry of Finance Department of Revenue (COFEPOSA Unit), New Delhi3. The Superintendent of Central Prison Central Prison, Puzhal Chennai 600 066..Respondents Petition under Article 226 of the Constitution of India,praying for the issue of a Writ of Habeas Corpus, calling for therecords relating to the detention order in G.O.No.S.R.1/680-5/2007dated 14.09.2007 passed by the first respondent herein and quashthe same and direct the respondent to produce the body of theperson of the detenu namely Mohammed Rafi son of Abdul Razackbefore this Hon'ble Court now detained under Sec.3(1)(i) of theCOFEPOSA Act in the Central Prison, Puzhal, Chennai and set him atliberty.For Petitioner:: Mr.B.KumarSenior Counsel forMr.S.PalanikumarFor Respondents:: Mr.M.Babu Muthu Meeran Addl. Public Prosecutorfor R1 & R3Mr.M.Jagadeesan, SCGSCfor R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was delivered by D.MURUGESAN, J.)The petitioner-Hajirabeevi is the wife of the detenu by nameThiru.Mohamed Rafi, a resident of No.45-B/99, Third Floor, ThoppaiMudali Street, Royapuram, Chennai, who has been detained by thefirst respondent in exercise of the powers conferred under Section3(1)(i) of the Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974 (Central Act 52 of 1974). In thegrounds of detention, it is stated that based on specificintelligence that the detenu, a passenger arriving from Singaporeby Flight No.SQ528/20.8.2007, was likely to bring high valuedelectronic goods of foreign origin in trade quantity as personalbaggage and would attempt to smuggle the same without declaringthe actual quantity and value to the Customs authority with anintention to evade payment of Customs duty, he was intercepted bythe officers of Directorate of Revenue Intelligence at CustomsTable No.9 and he filed the customs declaration on the same day.It was found that the detenu was in possession of two handbaggages and two checked in baggages. Though he has declared tohave brought 25 cameras and 15 still cameras with a total value ofRs.2,50,000/-, it was found that the value of the goods is worthabout Rs.7,72,500/-. Hence the goods were seized and thedetention order came to be passed. 2. The detention order is questioned mainly on three grounds.Firstly, a pre-detention representation dated 5.9.2007 was sent tothe Chief Commissioner with a covering letter requesting him toforward the same to the detaining authority. Though the saidrepresentation was received by the Chief Commissioner, the samewas not placed before the detaining authority while the detentionorder was passed on 14.9.2007. The non-placement of the saidrepresentation before the detaining authority would vitiate theorder of detention. Secondly, in the pre-detention representation,the detenu had specifically requested to compound the offence interms of sub-section (3) of Section 137 of the Customs Act whichcame into effect from 10.9.2004 and he is also prepared to pay thecustoms duty. The failure on the part of the Chief Commissionerto place the said representation before the detaining authorityhas an adverse effect on the detenu as, had the saidrepresentation been placed before the detaining authority, itwould have been considered and the detaining authority would havesatisfied with the claim and consequently would have deferred frompassing the impugned detention order. Thirdly, in any case thevery claim was made in the statutory representation dated31.10.2007 and while the said representation was considered anddisposed of, there was no application of mind as to the said claimnot only made in the representation dated 5.9.2007 but also in the https://hcservices.ecourts.gov.in/hcservices/ representation dated 31.10.2007. The failure on the part of thedetaining authority to consider the said aspect and in the absenceof any reason for not accepting the same would amount to failureto consider the representation properly, which is a valuable rightof the detenu.3. We have heard Mr.B.Kumar, learned senior counsel appearingfor the petitioner who would, after reiterating the above grounds,also rely upon the judgments of the Supreme Court and the DivisionBench of this Court as to the failure on the part of theauthorities to consider such representation as well as the non-placement of the representation before the detaining authoritybefore the order of detention was made in Ahamed Nassar v. TheState of Tamil Nadu and others, JT 1999 (8) SC 252 and in RojaBegam v. State of Tamil Nadu rep.by Secretary to Govt., Public(SC) Department, Chennai and another (2007) 2 MLJ (Crl.) 274.4. On the other hand, Mr.M.Babu Muthu Meeran, learnedAdditional Public Prosecutor appearing for the first and thirdrespondents would submit that the representation dated 5.9.2007was received in the Customs department on 6.9.2007 and theCommissioner (Airport) on 10.9.2007 and the Joint Commissioner ofCustoms on 14.9.2007 and ultimately the same was received by theAssistant Commissioner of Customs on 17.9.2007 and forwarded tothe Government, which received the same on 18.9.2007, and the samewas disposed of on 10.10.2007. By the time the representationdated 5.9.2007 was received by the Government, the detention ordercame to be passed on 14.9.2007 and therefore the representationcould not be placed before the detaining authority andconsequently the non-placement of the said representation wouldnot vitiate the order of detention on the facts of this case. Hewould also submit that the statutory representation dated31.10.2007 was considered and the same was rejected on 20.11.2007.Though the claim of the detenu for compounding the offence interms of sub-section (3) of Section 137 of the Customs Act was notstated in so many words in the order rejecting the representation,from the files it is seen that the remarks were submitted to thedetaining authority as to why such a claim was not considered andtherefore it must be taken that the said objection was properlyconsidered by the detaining authority while the representation wasrejected. In support of the above submission, the learnedAdditional Public Prosecutor would rely upon the judgment of theSupreme Court in Haradhan Saha v. The State of West Bengal andothers (AIR 1974 SC 2154).5. We have carefully considered the above submissions. So faras the first submission is concerned, it is by now well settledand even no authority is required for the proposition that when apre-detention representation is made and which was received by theauthorities concerned, such representation must be placed beforethe detaining authority for its consideration, apart from the https://hcservices.ecourts.gov.in/hcservices/ disposal of such pre-detention representation on merits. Thefailure to place such representation to the detaining authoritywould vitiate the order of detention. However, on the facts ofthis case, we find that without any further delay, therepresentation received on 5.9.2007 was sent to the Commissioner(Customs), who received it on 6.9.2007, the Commissioner (Airport)on 10.9.2007 and the Joint Commissioner on 14.9.2007 and the ChiefCommissioner (Customs) on 17.9.2007, who forwarded the same to thesponsoring authority and consequently, the said representation wasreceived by the Government only on 18.9.2007. Before the saidrepresentation was received by the Government, the detention ordercame to be passed on 14.9.2007 and therefore, on the facts of thiscase, it cannot be said that the representation had been purposelywithheld and was not placed before the detaining authority, aseffective steps were taken in forwarding the representation to theGovernment but, in the meantime, the detention order came to bepassed. Hence the first contention of the learned senior counselfor the petitioner cannot be accepted on the facts of this caseand accordingly, the same is rejected.6. So far as the second and third contentions are concernedwhich can be dealt with together, it can be stated that the rightof representation is a valuable right guaranteed under Article 22(5) of the Constitution of India. By virtue of the said Article,a detenu has the right not only to make a statutory representationbut also a pre-detention representation. The disposal of therepresentation cannot be farce or for the sake of disposal, as thedisposal in effect has the effect of infringement of Article 22(5)and therefore once a representation is made, it should be disposedof after proper and due consideration by applying the mind to eachand every claim or the statement made in the representation.7. On the basis of the above principle of settled law, thecase on hand should be considered. Of course, the failure on thepart of the sponsoring authority to place the pre-detentionrepresentation to the detaining authority has not vitiated theorder on the facts of this case as held by us. The question stillremains is as to whether the failure on the part of the authorityto consider the very same objections which have been made in therepresentation dated 5.9.2007 in the subsequent statutoryrepresentation dated 31.10.2007 would vitiate the detention order.In the representation dated 31.10.2007, it is specifically pleadedfor compounding of the offence and also for payment of the customsduty in terms of sub-section (3) of Section 137 of the CustomsAct. The detaining authority did not have the occasion toconsider this objection made in the pre-detention representation.Nevertheless, when it is the fact that the detenu had mentioned inhis statutory representation dated 31.10.2007 that he had earliermade a pre-detention representation on 5.9.2007 and in thatrepresentation he has also requested for compounding the offence,in such event, when the statutory representation was disposed of,the detaining authority ought to have applied his mind to the saidfact and should have given reasons as to why the saidrepresentation was not placed before the detaining authority and https://hcservices.ecourts.gov.in/hcservices/ consequently was not considered. Failure to refer the same wouldamount to non-application of mind to the said objection made inthe pre-detention representation dated 5.9.2007. That apart, thevery same claim was also made in the subsequent statutoryrepresentation dated 31.10.2007 and the same was disposed of bythe first respondent on 20.11.2007. A perusal of the orderrejecting the said representation does not indicate theapplication of mind as to the above request of the detenu forcompounding the offence. A faint attempt is made by the learnedAdditional Public Prosecutor by producing the records that theremarks were placed before the detaining authority before therepresentation was considered and the said remarks contain thereasons. In our considered view, the principle, namely, even inthe absence of such reasons in the order and by that reason theorder will not be vitiated, is not applicable to the case ofpreventive detention. As the right to make a representation isenshrined under Article 22(5), such right is inbuilt for thedetenu to know as to how his objection or request was dealt with,considered and disposed of. Further, from the file note, we areunable to see as to whether the remarks submitted before theauthorities were in fact considered by the detaining authority.In the absence of the above, in our considered view, there was noproper application of mind by the detaining authority as to theclaim of the detenu for compounding the offence as well as theother objections which resulted in total non-application of mindand certainly would vitiate the order of detention. The judgmentin Haradhan Saha's case (supra) relied upon by the learnedAdditional Public Prosecutor, of course, laid down the law thatthe order of the Government in rejecting the representation neednot be a speaking order and all that is necessary is that thereshould be a real and proper consideration by the Government. Butwhether a representation was properly considered or not dependsupon each case. Applying the very same law in the given case,failure on the part of the first respondent to give reasons, ofcourse not in so many words, but in brief, as to why the requestfor compounding the offence, to which the detenu claims that he isentitled under sub-section (3) of Section 137 of the Customs Act,was not accepted should have been stated. In that context, wewould refer to the judgment of the Supreme Court in AhamedNassar's case relied upon by the learned senior counsel for thepetitioner. That was a case where the Supreme Court wasconsidering two letters dated 23.4.99 and 19.4.99 containingfactual assertions not only retraction of the earlier allegedconfession but other matters. So far as the second letter wasconcerned, the Supreme Court after considering the same hadobserved as follows:-"26. The question is not whether the secondpart of the contents of those letters wasrelevant or not but whether they were placedbefore the detaining authority for hisconsideration. There could be no two opinions onit. It contains the very stand of the detenu ofwhatever worth. What else would be relevant ifnot this? It may be that the detaining authority https://hcservices.ecourts.gov.in/hcservices/ might have come to the same conclusion as thesponsoring authority but its contents arerelevant which could not be withheld by thesponsoring authority. The letter dated 19th April,1999 it reached the sponsoring authority andreached well within time for it being placedbefore the detaining authority. There isobligation cast on the sponsoring authority toplace it before the detaining authority, whichhas not been done. Even the letter dated 23rdApril, 1999 which reached the Secretary concernedat 3.00 PM on 26th April, 1999 which was muchbefore the formal detention order dated 28thApril, 1999. The Secretary concerned was obligedto place the same before the detaining authority.Respondent authority was not right in not placingit as it contains not only what is alreadyreferred to in the bail application dated 1stApril, 1999 but something more."8. The answer to the issue raised in this case is the aboveparagraph of the judgment of the Supreme Court. Whether the detenuis entitled to ask for compounding the offence under sub-section(3) of Section 137 of the Customs Act or not is not the relevanttest for consideration and disposal of the representation bygiving reasons. It is always open to the respondents to informthe detenu that his request was rejected on a particular ground.The question is in the event such ground is not referred to whilethe representation was rejected, it would certainly amount tofailure to apply the mind which consequently vitiates the order ofdetention.9. A Division Bench of this Court in the judgment inP.M.S.Mohiadeen Sahib v. State of Tamil Nadu represented by theSecretary to Government, Public (SC) Department, Chennai andothers (2006) 1 M.L.J.(Crl.) 131 has in fact held thatconsideration of the representation of a detenu is not a mereformality, but the same has to be considered with an unbiased mindand closest and most zealous scrutiny for the purpose ofdetermining whether the detention is justified or not. In fact,recently this Court in the judgment in Roja Begam's case (supra),while considering the effect of non-consideration of therepresentation has observed that the representation made on behalfof the detenu is required to be considered with all seriousnessand it should not be rejected in a mechanical manner. Holding so,the Court had quashed the detention order.10. As we have found on facts that in both the pre-detentionrepresentation as well as statutory representation the detenu haspleaded for compounding the offence and the order rejecting therepresentation does not indicate of consideration of the saidplea, the non-consideration of the same would vitiate the order ofdetention, as the order rejecting the representation has been mademechanically without applying the mind. https://hcservices.ecourts.gov.in/hcservices/

11. For all the above reasons, the habeas corpus petition isallowed and the impugned order of detention dated 14.9.2007 passedby the first respondent is set aside. The detenu is directed tobe set at liberty forthwith, unless he is required in connectionwith any other case. SsSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. 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 (COFEPOSA Unit) New Delhi3. The Superintendent of Central Prison Central Prison, Puzhal Chennai 600 0664. The Joint Secretary to Govt, Public (Law and Order), Fort St George, Chennai 9.5. The Public Prosecutor High Court, Madras+ 1 cc to Mr. S. Palanikumar SR No. 23145 H.C.P.No.1445 of 2007BS(CO)SR/15.5.2008