Chinnasamy v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:09.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.NO.1551 OF 2008Chinnasamy ...PetitionerVs.1. The State of Tamilnadu represented by the Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009.2. The Union of India represented by The Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), New Delhi.3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai – 600 066...RespondentsPetition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Habeas Corpus directing therespondents to produce the detenu Kannusamy Thirugnanam, Son ofS.Kannusamy, aged 20 years who is detained in Central Prison,.Puzhal, Chennai in pursuance of detention order dated 20.9.2008 inG.O.No.S.R.1/596-5/2008 before this Court to call for the records,set aside the order and set the detenu at liberty forthwith.For petitioner : Mr.S.PalanikumarFor Respondents: Mr.N.R.Elango, A.P.P. for R1 & R3 Mr.M.Dhamodharan for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by M.CHOCKALINGAM,J)Challenge is made to an order of the second respondent inG.O.No.S.R.1/596-5/2008 dated 20.9.2008 whereby one KannusamyThirugnanam was ordered to be detained under Section 3(1)(i) of theConservation of Foreign Exchange and Prevention of SmugglingActivities Act, 1974.2. The affidavit in support of the petition along with all thematerials including the order under challenge are perused. The Courtheard the learned Counsel for the petitioner.3. The order under challenge came to be passed under thefollowing circumstances. (a) On 23.8.2008, on interception, the detenu KannusamyThirugnanam, holder of Indian passport No. G.8572288 dated 19.5.2008issued at Chennai, arrived by Singapore Airlines Flight. He wasintercepted on suspicion that he might be in possession of smugglingdutiable foreign goods without declaring to customs authorities orpaying the appropriate duty. He was found in possession of checked-in-baggage viz., one brown card board carton and one Samsung 32" LCDTV carton. Not satisfied with the declaration made by him, furtherinterrogation was made. After detailed examination in the presenceof witnesses, the checked in baggage were found to contain oneSamsung 32" LCD TV and the other cardboard carton found to containtwo "Dumex" dugro 1 plus milk power (700 grams) refilled pocketsamong his used personal effects. As one of the milk powder pocketwas found heavy, the same was opened and found to contain six numbersof expensive wrist watches of foreign origin and they were actuallyseized under a cover of mahazar.(b) When the detenu was questioned about the same, he gave areply that the watches did not belong to him and he further informedthat he did not know their value and agreed for valuation adopted bythe investigation based on internet as well as local market valueand they were actually valued at Rs.9,85,100/-. The confessionalstatement was also recorded from him wherein he stated that he hadno idea about the watches and when he board the flight, the samewas handed over to him by his uncle to be handed over to the familymembers at Madras and it was a surprise to him. It was found that hehas committed an offence under the provisions of COFEPOSA Act. Therecommendations were made and a case came to be registered as againstthe detenu under Section 111(i)(l) and (m) of the Customs Act, 1962and he was also found to have committed offence punishable undersections 132 and 135 of the Indian Customs Act. https://hcservices.ecourts.gov.in/hcservices/ (c) Thereafter, the detenu was arrested and sent to judicialremand. Originally, he made bail application before the AdditionalMetropolitan Magistrate Court and the same was dismissed. Ondismissal, he moved bail before the Court of Sessions. The same wasallowed granting bail imposing condition inter alia impounding hispassport. The representations sent by the detenu were alsoreplied. The detaining authority, after perusal of the materialsavailable was satisfied that, on the facts and materials placed, ifhe remain at large, he will indulge in such activities again andthat further recourse to normal criminal law would not have thedesired effect of effectively preventing him from indulging in suchactivities. Under such circumstances, the detaining authorityconsidered that it has become necessary to detain him under Section 3(1)(i) of the COFEPOSA Act 1974. Accordingly, an order came to bepassed which is the subject matter of challenge before this Court.4. Advancing the argument on behalf of the petitioner, thelearned counsel would submit that as could be seen from the detentionorder, the detenu was found in possession of six expensive watchesof foreign origin which were transported by him illegally which wouldamount to smuggling and they were actually valued by taking thevaluation from the internet and also the local market value and thus,the figure of Rs.9 lakhs and odd were arrived at. The firstrepresentation was given by the detenu on 30.9.2008 and for the same,a reply was given on 10.10.2008 whereby it was found that thevaluation was made both from the internet as well as local marketvalue. The second representation was made on 20.10.2008 for which theauthorities gave a reply stating that since the watches could not bevalued through the local market value they were valued throughinternet. Thereafter, another representation was sent on 2.12.2008which brought forth another reply whereby it was found that 2 watcheshave price tags and in respect of the other 4 watches, they wereactually valued both by internet and local market value. Therefore,regarding these valuation, the authorities have completely giveninconsistent answers. Thus, there arise necessary for the detainingauthority to call for clarification how the valuation was actuallyfixed but they have not done so before passing the order.5. Added further learned counsel, in a given case like this,when the relied on document namely, on what basis the value wasarrived at were not furnished to the detenu and even after therepresentations and the subjective satisfaction recorded by theauthorities as found in order could not have been arrived properlyand on that ground also the order suffers. Learned counsel wouldfurther add, it is not the case of the department that the detenu wasmaking often or frequent visit to the foreign countries. This wasthe only visit made by him. It is true that the authorities have notobserved in the order that there was frequent visit. It was stated https://hcservices.ecourts.gov.in/hcservices/ in the order that he would indulge in such activities in future. Inorder to take such a view that the detenu would indulge in suchactivities in future, there was no material available at all.6. Learned counsel for the petitioner placing reliance on thedecision of the Apex Court reported in (2009) 2 MLJ (Crl.) 455 (PoojaBatra v. Union of India & others) would submit that in the absenceof any specific and authenticated material to indicate that he hadthe propensity and potentiality to continue to indulge in suchactivities in future, the mere fact that on one occasion personsmuggled goods into the country would not constitute a legitimatebasis for detaining him under the COFEPOSA Act.7. In the instant case, when bail was granted in favour of thedetenu by the Principal Sessions Court, the passport was actuallyimpounded and it was actually in the custody of the department andthis factual aspect has not been taken into consideration by thedetaining authority. When the pass port was actually impounded andwas in the custody of the department, there is no question of thedetenu making any further visit or indulging in such activities ofsmuggling in future and thus, it should have been considered by thedetaining authority before passing the order but not done so. Hence,on these grounds the order has got to be set aside.8. The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 9. Pursuant to the recommendation made and the facts andcircumstances placed along with the materials, the State Governmenthas passed an order of detention which is the subject matter ofchallenge.10. The factual position that, on arrival from Singapore thedetenu, holder of Indian Passport No.G.8572288 dated 19.5.2008 wasfound in possession of two checked in baggage; that the detenu wasintercepted and thereafter, it was opened and six expensive watchesof foreign origin were seized; that the confession statement of thedetenu was recorded; that the detenu was arrested and theauthorities were of the opinion that the detenu has committed theoffence which is punishable under the provisions of the Customs Act,that the detenu was remanded; that he moved two bail applicationsand the same was originally dismissed and thereafter, he moved theCourt of Sessions where bail was granted, are all not incontroversy.11. The order of detention made under the provision of theCOFEPOSA Act dated 20.9.2008 is challenged on the ground of non-application of mind. Admittedly, after the order was passed on https://hcservices.ecourts.gov.in/hcservices/

20.9.2008, the first representation was made by the detenu on30.10.2008 which broughtforth a reply on 10.10.2008 as found in PageNo.9 of the typed set. A reading of the same would indicate that thevaluation of the six watches, which according to the department weresmuggled by the detenu, was fixed by looking into the internet andalso taking into consideration the local market value. Thereafter,second representation was made on 13.11.2008 which brought forth areply on 20.10.2009 as found in page No.11 of the typed set whichwould clearly indicate that the valued was fixed by taking intoconsideration the valuation as found in the internet. The thirdrepresentation was made on 28.1.2009 which brought forth anotherreply dated 19.2.2009 as found in Page No.45 of the booklet whereinit was reiterated that the valuation was made by looking to theinternet and also taking into consideration the local market value ofthe goods. Thus, three representations were made by the detenu whichbrought forth three replies. The value arrived at by the authoritieswere shown in different ways. Under such circumstances, it isneedless to say, in a given case like this, the valuation of thegoods alleged to have been smuggled is important and relevant factor.When such discrepancies were noticed, the detaining authority shouldhave called for clarification but failed to do so. 12. Further in all these representations, the detenu was goingon demanding for the relied on documents. A reply was given by thelearned counsel for the State that page Nos.81 to 139 of the bookletactually covers the value of 4 watches as found in the internet andin so far as two watches were concerned, the price tags were found,but this cannot be a proper reply in this regard for the simplereason that as to the method of arriving the valuation, the case ofthe department was found to be different in two stages. It hascategorically stated that the valuation of the prevailing marketprice was taken into consideration. Under such circumstances, whenrelied on documents were asked for, duty is cast upon theauthorities to supply the same to the detenu. If not supplied,subjective satisfaction could not have been arrived at by theauthorities proper and hence, on that ground the order would suffer. 13. Apart from this, in the instant case, it is not the case ofthe department that he was making frequent visit but he has made onlyone visit to Singapore. Even assuming that the case of the departmentis true that the detenu actually smuggled the goods, it is highlydoubtful whether there was materials available to speak so. All wouldindicate that there is no specific and authenticated material toindicate that he had the propensity and potentiality to continue toindulge in such activities in future. The Court is of the consideredopinion that the decision of the Apex Court relied on by the learnedcounsel for the petitioner reported in (2009) 2 MLJ Crl 455 (PoojaBatra v. Union of India & others) would squarely apply to the factsof this case. It is apt and appropriate to reproduce that part of the https://hcservices.ecourts.gov.in/hcservices/ judgment." In the absence of any specific andauthenticated material to indicate that he had thepropensity and potentiality to continue to indulgein such activities in future, the mere fact thaton one occasion person smuggled goods into thecountry would not constitute a legitimate basisfor detaining him under the COFEPOSA Act."14. From the judgment of the Apex Court, it is quite clear thatmerely because the detenu was found once smuggling goods into thecountry by itself would not constitute legitimate basis of detaininghim in the COFEPOSA Act but the detaining authority must look for,whether there are any specific authenticated material to indicatethat had the propensity and potentiality to continue to indulge insuch activities in future.15. Now, the Court is of the considered opinion that in theabsence of the same , the order of detention cannot be found to belegal, applying the ratio as spelt out by the Supreme Court. In theabove decision, the Court is of the considered opinion that in theinstant case circumstances did not make out the legitimate basis formaking detention under the provisions of COFEPOSA Act. On all thesegrounds, the Court is of the opinion that without hesitation, theorder of detention has got to be set aside.16. Accordingly, this habeas corpus petition is allowed settingaside the order of the second respondent. The detenu is directed tobe set at liberty forthwith unless his presence is required inconnection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvsiTo 1. The Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Secretary to the Government, Union of India, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), New Delhi.3. The Superintendent, Central Prison, Puzhal, Chennai – 600 066.4.The Public Prosecutor,High Court, Madras.1041 cc To Mr.S.Palani Kumar, Advocate, SR.29818HCP.NO.1551 of 2008bjy(co)pmk.22.7.2009.