K. Shanmugam v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25-6-2008CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUHCP No.1779 of 2007andMP No.1 of 2008K.Shanmugam.. Petitionervs1.The State of Tamil Nadu Rep. By the Secretary tothe Government Public (SC) Department Fort St. George Chennai 600 009.2.The Union of India Rep. By the Secretary tothe Government Ministry of Finance Department of Revenue(COFEPOSA UNIT) Central Economic IntelligenceBureau Janpath Bhavan, VI Floor, 'B' Wing, Janpath, New Delhi 110 001.3.The Superintendent of Central Prison Central Prison Puzhal, Chennai... Respondents Habeas corpus petition filed under Article 226 of theConstitution of India praying for a writ of habeas corpus to callfor the records relating to the detention order inG.O.No.SR.I/884-9/2007, Public (SC) Department, dated 5.11.2007passed by the first respondent, quash the same and direct therespondents to produce the body of the person of the detenu,K.Shanmugam, son of Krishnappa Achari now detained in the CentralPrison, Chennai, as COFEPOSA detenu before this Court and set himat liberty. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.M.M.K.AlifuddinFor Respondents: Mr.Babu Muthu Meeran Additional PublicProsecutor for RR1 & 3 Mr.Vikram Ramakrishnan ACGSC for R2ORDER(Order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the first respondent dated5.11.2007, whereby an order of detention was passed against thepetitioner herein terming him as the COFEPOSA detenu.2.The affidavit in support of the petition is perused. TheCourt heard the learned Counsel for the petitioner, learnedAdditional Public Prosecutor for the respondents 1 and 3 and alsothe learned Additional Central Government Standing Counsel forthe second respondent.3.The short facts which, according to the detainingauthority, led him to pass the order of detention, are asfollows:The DRI Officers of Chennai Unit intercepted a container atChennai Harbour meant for export to Malaysia with a cargo ofslate stones, and search of the container resulted in recovery ofred sander wood log, an item prohibited for export. On furtherinvestigation, the petitioner was intercepted, and he gave astatement that he did the preparing work for export of slatestones on the instructions by one Chitty Raja, and he had alsoknowledge that the red sander wooden logs would be exported inthe guise of slate stones. Both the said Chitty Raja and thepetitioner were arrested. Following the same, documents wereserved upon them. They made representations, and orders havebeen passed detaining them under the COFEPOSA Act. Subsequently,the order of detention passed against the said Chitty Raja wasactually revoked by the Advisory Board; but, the detention of thepetitioner who was detained under Sec.3(1)(ii) of the Act forabetting the main man, was confirmed, which is the subject matterof challenge before this Court.4.At the time when the matter is taken up for enquiry, thelearned Counsel for the petitioner made the followingsubmissions:(i) The container was searched, and it was found to containthose materials according to the department on 13.8.2007. Thepetitioner was arrested on 4.10.2007. The detention order cameto be passed on 5.11.2007. A representation was made on29.11.2007 to the Central Government asking for the translated https://hcservices.ecourts.gov.in/hcservices/ copies of certain documents whereby a request was made; but, theywere not supplied. 5.The learned Counsel would further add that a part of thedocuments were actually supplied to him at about 11.40 a.m. On18.12.2007; that the matter was taken up by the Advisory Board on19.12.2007, at about 3.00 p.m., and thus, no sufficient time wasgiven to him for making a representation effective because therewas paucity of time; that apart from that, voluminous documentswere actually served upon him by 5.40 p.m.; that those documentswere not requested by the petitioner either, or those documentswere actually not given with any covering letter indicating thepurpose for which they were actually served upon him; but, it wasnot done; that only those documents were served and that too atthe fag end of the day, and when the Advisory Board was to haveits enquiry on the next day; that he could not even understandthe purpose for which it was served; that he was under confusion;that he could not make effective representation, and thus, thevaluable right available to him to make representation wasactually violated and rather, he was prevented from makingeffective representation.6.The learned Counsel would further submit that in theinstant case, the order was passed not only against thepetitioner herein, but also against one Chitty Raja on the veryday i.e., 5.11.2007; that according to the department, thepetitioner has only abetted the other, and the said Chitty Rajawas the main culprit in the case; that a booklet containing about400 pages, was available in the hands of the detaining authority;that the said documents, as could be seen from the materialsavailable, were placed before the detaining authority by thesponsoring authority on 5.11.2007 namely the date of the order;that when these two orders came to be passed, the detainingauthority should have applied its mind and arrived at thesubjective satisfaction which he could not have done in the caseof the petitioner for the simple reason that there was a bookletcontaining 400 pages; that the same was placed before thedetaining authority only on 5.11.2007; that these documentsshould have been scrutinized not at a time, but in piecemeal;that it would be quite clear that he should not have applied hismind and arrived at the subjective satisfaction, and under thecircumstances, the order has got to be set aside.7.Added further, the learned Counsel that when the matterwas placed before the Advisory Board, as far as the other detenuwas concerned, the decision taken by the detaining authority, wasnot approved, but set aside; that as far as this petitioner wasconcerned, it was confirmed; that while the Advisory Board hastaken its view that it is a fit case where the decision taken bythe detaining authority in respect of the other detenu, was to beset aside, all those reasons were equally applicable to thepetitioner herein also who, according to the department, hasabetted the crime; that further, in the instant case, at the timewhen the Advisory Board had considered the case of the other https://hcservices.ecourts.gov.in/hcservices/ detenu, the decision taken by the detaining authority in respectof this petitioner also, should have been placed, but not done atall; and that had it been placed, the Advisory Board would haveconsidered that the reasons what were available for the AdvisoryBoard to set it aside in respect of that detenu, were equallyavailable to the petitioner herein also, but not done. 8.It is further added by the learned Counsel that in theinstant case, if the Advisory Board has granted the approval inrespect of the petitioner's case, the said report should havealso been placed before the State; that it is not necessary thatin all the cases, even if the Advisory Board grants approval inrespect of the order passed by the detaining authority, it shouldbe accepted by the State; that the State can even revoke the samein exercise of its powers; that in the instant case, at the timewhen it was considered by the State, the order of revocationpassed by the Advisory Board in respect of the other detenu, wasnot placed; and that under the circumstances, the order isinfirm. 9.Added further the learned Counsel that the petitioner hasproblem in his vision; that during day hours his vision is blur,and during night hours he could not see at all; that this wasalso brought to the notice of the authority immediately; but, itwas neither considered by the authority, nor medical opinion wascanvassed; and that this would also vitiate the order. In short,the learned Counsel would conclude that for all the reasonsstated above, the impugned order has got to be quashed. 10.The Court heard the learned Additional Public Prosecutorfor the State and the learned Additional Central GovernmentStanding Counsel on all the above contentions and paid itsanxious consideration on the submissions made.11.Concededly, an order came to be passed on 5.11.2007 underthe provisions of COFEPOSA Act by the first respondent afterrecording the satisfaction that the petitioner has indulged inabetting the smuggling of goods. Subsequently, the order was alsoplaced for approval before the Advisory Board, which alsoconfirmed the same. Thereafter, the State has also affirmed thesame. In such circumstances, this petition has arisen beforethis Court.12.The first contention put forth by the learned Counsel forthe petitioner is that actually the order came to be passed on5.11.2007; that after the order was passed, a representation wasmade on 29.11.2007; that the matter was placed before theAdvisory Board on 18.12.2007; that the first set of documentswere given to him at about 11.40 a.m. on that day; that theapproval was given at about 3.00 p.m. on 19.12.2007; and that asper the representation given by him, all the documents wereserved upon him at about 11.40 a.m. On 18.12.2007, and the matter https://hcservices.ecourts.gov.in/hcservices/ was taken up for approval only on 19.12.2007. It would be quiteclear that he was given one day time. Now, the contention putforth by the learned Counsel for the petitioner that he couldnot make effective representation within a period of one daywhile voluminous documents were served upon him requiresconsideration. Though one day time was given to the petitioner,it would not be sufficient in the eye of law to go through thesame, understand the things and then make representation, sincethe matter was actually taken up by the Advisory Board forconsideration on the next day. Hence, it can be well stated thatsufficient time was not afforded to him so as to enable him tomake effective representation before the Advisory Board. 13.The next contention is that the other bunch of documentswhich were not actually requested by him, were served upon him at5.40 p.m.; that those documents were served even without anycovering letter indicating the purpose for which they weresupplied; that he was under confusion; and that he could not makeeffective representation in respect of those documents. ThisCourt is of the considered opinion that the decision of theSupreme Court reported in 1999 SUPREME COURT CASES (CRI) 299(STATE OF T.N. V. SENTHIL KUMAR AND ANOTHER) has got applicationto the present facts of the case. In the case on hand, thisCourt is able to see two points in favour of the petitioner.Firstly, while the Advisory Board was to take up the matter forconsideration on 19.12.2007, a bunch of documents which were notcalled for by the petitioner, were served upon him at about 5.40p.m. On 18.12.2007, as could be seen from the booklet, andsecondly, they were given without any covering letter at all. Itwould be quite clear that those documents were served upon him,without a covering letter indicating the purpose for which theywere actually given and without mentioning that they would beplaced before the Advisory Board and before the Government inconnection with the confirmation of the detention. So long asthe petitioner was not informed about the purpose for which thosedocuments were served upon him and even without any indicationthat they would be placed before the Advisory Board or theGovernment later, it would be quite clear that the petitioner waskept under darkness. Thus, he could not make a properrepresentation. 14.As stated supra, in the instant case, the points aretwofold. Firstly, all these documents were served at about 5.40p.m. on the previous day when the Advisory Board was to take upthe matter on the next day that was on 19.12.2007. Secondly,there was no covering letter indicating the purpose for whichthey were served on him. That apart, whether they would beplaced before the Advisory Board or the Government later remainedunknown to the petitioner. In such circumstances, it remains tobe stated that not only the valuable right of the petitioner formaking effective representation was taken away, but also therepresentation itself in that regard was actually defeated. https://hcservices.ecourts.gov.in/hcservices/

15.As far as the next contention that the last document wasgiven on 5.11.2007, and thus, the authority had no occasion toconsider all the documents at a time when the booklet contained409 pages, and that too, he should have considered in piecemealis concerned, the same cannot be accepted for the simple reasonthat true it is, the last document was placed before theauthority only on 5.11.2007; but, all other documents wereactually placed on 29.10.2007 itself. Hence, that contention hasgot to be rejected, and accordingly, it is rejected. 16.The next contention put forth by the learned Counsel thatthe order of the Advisory Board denying the approval for theother detenu and setting aside the order of detention, was notplaced before the Advisory Board when the matter was taken up bythe Advisory Board for the approval of the detention of thepetitioner, and if it was placed, it would have taken a properdecision in the instant matter cannot be accepted at all. ADivision Bench of this Court had an occasion to consider such asituation and rendered a decision reported in (2006)2 MLJ (CRL.)696 (MUTHULAKSHMI AND ANOTHER V. DISTRICT MAGISTRATE AND DISTRICTCOLLECTOR, COIMBATORE DISTRICT, AND ANOTHER), wherein this Courthas actually followed the decision of the Apex Court reported inAIR 2003 SC 3562 (SAFIYA V. GOVERNMENT OF KERALA) in which, theApex Court has held that the subjective satisfaction of thedetaining authority cannot be said to have vitiated on the groundthat the non-placing of the opinion of the Advisory Boardrendered in case of another person (whose detention was revoked)amounted to non-placing of relevant and important document. Inthe case on hand, it is doubtful whether the order of thedetaining authority denying approval in respect of the otherdetenu and revoking that order, was actually placed. But, thenon-placing of the opinion framed by the Advisory Board in caseof another person whose detention order was revoked, at the timewhen the matter was taken up for consideration would not in anyway vitiate as done by the earlier Bench of this Court asreferred to above. 17.The last contention urged by the learned Counsel for thepetitioner, in the opinion of the Court, has got force. Afterthe approval was made by the Advisory Board in this regard, thematter was placed before the State Government for its approval.As rightly pointed out by the learned Counsel, in every case itis not necessary that the State Government should confirm anyorder of detention even after it is being approved by theAdvisory Board. The State Government has to exercise its powersindependently and take into consideration all the materialsavailable. In the instant case, admittedly, there were twodetenus who, according to the department, were involved in thetransaction. Both the orders were passed on 5.11.2007. As faras the other detenu was concerned, though the detention order wasmade by the authority, it was not approved by the Advisory Board,and it has been set aside for the reasons stated therein. Whenthis particular order was placed before the State for approval, https://hcservices.ecourts.gov.in/hcservices/ the other order of detention which was subsequently not approvedby the Advisory Board, could have also been placed before theState Government, and the State Government in exercise of itspowers, should have considered the same also since both thedetenus, according to the department, were involved in the sametransaction. This is also a reason for setting aside the orderin question.18.The decision relied on by the learned Additional PublicProsecutor and reported in (2006)3 SCC (CRI) 311 (STATE OF T.N.AND ANOTHER V. ALAGAR), in the opinion of this Court, cannot beapplied to the present facts of the case.19.Out of the above contentions, the Court has agreed withthe petitioner's case that sufficient opportunity of puttingforth representation before the Advisory Board was not given;that also there was no covering letter along with the documentsserved upon him, making him to understand the reason and thepurpose for which they were supplied to him; and that apart fromthat, non-approval of the detention order by the Advisory Boardin respect of the other detenu who, according to the department,also participated in the transaction, was also not placed beforethe State Government. These grounds would suffice to quash theorder.20.Accordingly, this habeas corpus petition is allowedquashing the order of the first respondent. The detenu isdirected to be released forthwith unless his presence is requiredin connection with any other case. Consequently, connected MP isclosed. nsv/ Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To:1.The Secretary tothe Government Public (SC) Department Fort St. George, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/

2.The Secretary tothe Government Ministry of Finance Department of Revenue(COFEPOSA UNIT) Central Economic IntelligenceBureau Janpath Bhavan, VI Floor, 'B' Wing, Janpath, New Delhi 110 001.3.The Superintendent of Central Prison Central Prison, Puzhal, Chennai.4.The Public Prosecutor High Court, Madras.1 cc to Mr.m.M.K.Alifuddin, Advocate, SR.326121 cc to Mr.Vikram Ramakrishnan, ACGSC, SR.32137gr (co)dv/14.7.HCP No.1779 of 2007and MP.No.1 of 2008