KumaravelS/o.Dr.R. Rajasekaran v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-08-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIHABEAS CORPUS PETITION NO.210 OF 2007KumaravelS/o.Dr.R. Rajasekaran.. PetitionerVs.1. Government of Tamil Nadu, rep. by the Secretary to Govt., Public (SC) Department, Secretariat, Chennai 600 009.2. Union of India, rep. by Secretary to Govt. of India, Ministry of Finance, Department of Revenue, COFEPOSA Unit, Central Economic Intelligence Bureau, Janpath Bhavan, B Wing, New Delhi 110 001... RespondentsPetition filed under Article 226 of the Constitution of India for theissuance of writ of Habeas Corpus calling for the records of the firstrespondent in GO.No.SR.1/59-2/2007 dated 1.02.2007 quash the same anddirect the respondents to produce the body of the detenu SurendranBalachandran S/o. A.S. Surendran, normal resident of 83G, CoronationColony, Sivakasi, PO & TK, Virudhunagar District presently undergoingdetention under the provisions of Conservation of Foreign Exchange &Prevention of Smuggling Activities Act in Central Prison, Chennai and sethim at liberty.For Petitioner: Mr.B. Kumar Senior Counsel for Mr.R. LoganathanFor Respondent-1: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor Respondent-2: Mr.P. Kumaresan, ACGSC https://hcservices.ecourts.gov.in/hcservices/ O R D E RP.K. MISRA, JThe order of preventive detention dated 1.2.2007, passed with aview to prevent the detenu from smuggling of goods under Section 3(1)(i)of the Conservation of Foreign Exchange & Prevention of SmugglingActivities Act, 1974 (Central Act 52 of 1974), hereinafter referred to as"the COFEPOSA Act" is the subject matter of challenge in the presentHabeas Corpus Petition.2. The order of detention dated 1.2.2007 was effected on 2.2.2007and the grounds of detention were served on 3.2.2007. From the grounds ofdetention it appears that the detenu was a passenger proceeding toShanghai via Kualalumpur. He had one hand baggage and two checked-inbaggages. These hand baggage and checked-in baggages were intercepted on5.1.2007 by the Customs Officer and the detenu was questioned. Hedeclared that he was in possession of Chinese Yuan equivalent toRs.25,000/- and US Dollars 500. However, on suspicion, the detenu wasbrought to Air Intelligence Unit, Customs room and search of hand baggageresulted in recovery of EURO 5000 kept in an envelope of "bhagya travels &tours pvt. Ltd., Chennai 600 008." and Chinese Yuan to the tune of 3650and US$310. Personal search of the detenu led to recovery of EURO 5000kept in pant pocket and EURO 5000 kept in shirt pocket. Thus, in allforeign currencies worth EURO 15000, US$ 310 and Chinese YUAN 3650equivalent to Rs.9,16,861/- had been recovered. As the detenu hadattempted to smuggle out of India the foreign currencies withoutpossessing any valid document or permit / licence from Reserve Bank ofIndia for the export of the assorted foreign currencies, they were seizedunder mahazar under Customs Act 1962 read with the provisions of ForeignExchange Management Act, 1999 (hereinafter referred to as "FEMA"). Thedetenu gave a voluntary statement on 5.1.2007 and 6.1.2007, wherein headmitted that he had knowingly made gross mistake in attempting to smugglethe foreign currencies. The grounds of detention further recited :-"(iii) By attempting to smuggle the above said assortedforeign currencies amounting to Rs.9,16,861/- (Rupees Nine LakhsSixteen Thousand Eight Hundred and Sixty One Only) without anyvalid document or permit of RBI, you had rendered the goodsliable for confiscation under the provisions of Section 113(d)and 113(h) of the Customs Act 1962 read with Foreign ExchangeManagement Act 1999 and you had also rendered yourself liable forpenal action under section 114 of the Customs Act 1962.Therefore, the acts of rendering the goods under seizure liableto confiscation under Section 113 of the Customs Act, 1962 amountto smuggling as per Section 2(39) of the Customs Act, 1962.(iv) You were arrested by the Customs Department, Chennai on06.01.2007 under Section 104 of the Customs Act, 1962 as therewas reason to believe that you were guilty of an offence https://hcservices.ecourts.gov.in/hcservices/ punishable under Section 132 and Section 135 of the Customs Act,1962 read with Foreign Exchange Management Act, 1999. You wereproduced at the residence of the learned Additional ChiefMetropolitan Magistrate, Economic Offence Court-II, Egmore on06.01.2007 and were remanded to judicial custody till 19.01.2007.Subsequently, your remand period was extended upto 01.02.2007 and15.02.2007."3. On 6.1.2007, the detenu was arrested under Sections 113(d) and113(h) of the Customs Act read with FEMA. The detention order, hadalready indicated, was passed on 1.2.2007. In the Habeas Corpus Petition,it has been specifically pleaded that on 27.1.2007, a detailedrepresentation had been sent to the Commissioner of Customs, who is thesenior most authority. In such representation, entire defence of thedetenu has been clearly set out highlighting as to how his arrest andseizure of foreign currencies were invalid and unfair. Even though such adetailed representation was available much before the detention order, thesaid vital document was never placed before the detaining authority and,therefore, the order of detention is vitiated on account of the fact thatvital relevant materials had not been placed before the detainingauthority for consideration. It is further pleaded in this regard thatinformation had been sought for under the Right to Information Act as tohow the letter dated 27.1.2007 has been dealt with and a reply wasfurnished stating that file containing COFEPOSA proposal has to be clearedby the Commissioner. From such reply it is apparent that such importantdocument was not at all considered by the detaining authority. It isfurther asserted that the bail application filed before the Sessions Courton 29.1.2007 also contained several vital facts by giving greater detailsand such copy was served on the Counsel for the Government on 29.1.2007and in fact counter to such bail application was also filed, yet such bailapplication was never placed before the detaining authority. It has beensubmitted by the counsel for the petitioner that if these two vitaldocuments, namely, representation dated 27.1.2007 addressed to theCommissioner of Customs, who is the Head of the Department available atChennai, and the bail application, which was filed before the SessionsCourt, to which even counter had been filed, would have been placed beforethe detaining authority, the detaining authority while exercising hissubjective satisfaction could have come to some other conclusion and non-placing of such vital documents has the effect of vitiating the order ofdetention.4. In the petition under Section 6 of the Right to InformationAct, it had been specifically requested to furnish reply as to howrepresentation dated 27.1.2007 was dealt with and it is stated that "Ifthe proposal for detention under COFEPOSA ACT is made will it come beforethe Commissioner for approval or noting or before being forwarded toGovernment with a request to pass order of detention." https://hcservices.ecourts.gov.in/hcservices/ In reply dated 17.2.2007, it has been indicated that letter dated27.1.2007 was received in the Office of the Commissioner of Customs, SeaPort, Rajaji Salai, Chennai and "As the matter pertains to Commissioner ofCustoms (Airport), Meenambakkam, Chennai-27, it was reforwarded to thisoffice and was received on 16.02.2007." It was further stated therein thatany proposal for detention under COFEPOSA would come before theCommissioner before being forwarded to the State Government. In the abovefactual background, the contention of the learned senior counsel thatthere has been non-application of mind to many vital aspects as therelevant materials were not placed before the Detaining Authority, isacceptable. 5. Learned Senior Counsel has further submitted that in therepresentation made to the Government on 20.2.2007, after the detentionorder was passed, it was specifically indicated :- "The Customs authorities have suppressed vital material. Onbehalf of the Detenu his Father A.S. Surendran had sent adetailed letter addressed to the Commissioner of Customs and sentby RPAD on 27.1.2007. It was received by the Addressee on29.1.2007. In the said communication it has been specificallymentioned that it has been written in connection withR.R.No.2/2007. This vital document has not been placed beforethe Government. Therefore the Government has been disabled fromconsidering a vital document which would have altered itssatisfaction.Thus grave injustice has been done to the Detenu. In thesaid representation specific details have been given about thedrawal of the foreign currencies lawfully by the Detenu from theauthorised money changer above referred. This ought to have beenverified by the Customs Authorities. Without verifying and bymisleading investigation, the Detention order has been made.The Customs Authorities have also suppressed the facts thaton behalf of the Detenu a further Application for Bail was filedon 29.1.2007 before the Sessions Judge (Principal) Chennai. Inthe said Bail Application full and complete details of thedefence have been given. This Bail Application came to bedisposed on 1.2.2007. This Bail Application has also been nottaken into consideration, nor the factum of order of dismissal ofthe Bail application.If the Government has taken into consideration the Bailapplication, it would not have passed the order of Detentionagainst the Detenu. In this regard the detenu states that he isquite confused about the offence he is said to have committed.The Grounds of Detention states that the Detenu had violatedcertain provisions of the Customs Act r/w.Foreign ExchangeManagement Act (FEMA) 1999. But no provisions of FEMA has anyapplication to the facts of the instant case. The Detenu may beapprised of clearly on what section or Sections of FEMA are https://hcservices.ecourts.gov.in/hcservices/ attracted. Unless these details given it will not be possible tomake a reasonable explanation. Atleast now these details andprovisions of law under FEMA may be given."Reply to such representation, which had been rejected, is dated1.3.2007. It has been stated :-"3. In your voluntary statement, you had stated that you hadbeen travelling to China and Korea for the past 8 years forimporting machines. Hence having travelled so frequently andwidely you should be familiar with the procedures/rules andregulations of the Customs declaration/purchase of foreigncurrencies. Nevertheless you had not declare the foreigncurrencies in your possession and you did not produce anydocumentary proof for the foreign currencies you had carried atthe time of interception and mis-declared the same before theCustoms Intelligence Officers at Airport. As per section 113(d)and section 132 of Customs Act, 1962, you have rendered the goodsliable for confiscation and thus rendered yourself liable forpenal action under section 135 of Customs Act, 1962. You havenot produced any documentary proof for the acquisition of theforeign currencies from the authorized agent and for the reasonsof violation of regulation 5 of the Foreign Exchange Management(Export and Import of Currency) Regulation, 2000, by which noperson shall, without the general or special permission of theReserve Bank, export or send out of India, or import or bringinto India, any foreign currency, and regulation 7(3)(ii) of theabove regulation provides that any person may take out of India,unspent foreign exchange brought back by him into India whilereturning from travel abroad and retained in accordance with theForeign Exchange Management (Possession and Retention of ForeignCurrency) Regulations, 2000 and regulation 3(iii) & (d) providesfor retention by a person resident in India of foreign currencynotes, or bank notes and foreign currency, travelers cheques notexceeding US $ 2000 or its equivalent in aggregate, provided thatsuch foreign exchange in the form of currency notes, bank notesand travelers cheques, represents unspent amount of foreignexchange acquired by him from an authorized person for travelabroad. Thus you have violated the provisions of Customs Act,1962 read with the Foreign Exchange Management Act, 1999."6. From this reply rejecting the representation, it is apparentthat inspite of specific assertion made in the post-detentionrepresentation that representation dated 27.1.2007 made to theCommissioner of Customs and also the bail application had never beenplaced. It is also apparent that the State Government, which hadjurisdiction to deal with such representation, has never bothered to callfor copy of the bail application as well as copy of the representation,which was admittedly made before the Commissioner of Customs. Therefore,even assuming that for some valid reasons representation dated 27.1.2007,which was addressed to the Commissioner of Customs, Head of theDepartment,and the bail application to which a counter had been filed, https://hcservices.ecourts.gov.in/hcservices/ could not be placed before the detaining authority, at least at the stageof consideration of the post detention representation, the detainingauthority owed an obligation to call for those documents nor satisfyitself about the contentions raised on behalf of the detenu. 7. In 1969(1) SCC 433 (ABDUL KARIM v. STATE OF WEST BENGAL) itwas observed :-"But it is a necessary implication of the language of Art.22(5) that the State Government should consider the representationmade by the detenu as soon as it is made, apply its mind to itand, if necessary, take appropriate action. In our opinion, theConstitutional right to a proper consideration of therepresentation by the authority to whom it is made. The right ofrepresentation under Art.22(5) is a valuable Constitutional rightand is not a mere formality."8. In (1975)3 S.C.C.198 (HARADHAN SAHA v. STATE OF WEST BENGAL),the Supreme Court had emphasised the necessity for a real and properconsideration of the representation by the appropriate Government. TheSupreme Court had observed:-"We cannot over-emphasise the need for the closest and mostzealous scrutiny of the representation for the purpose ofdeciding whether the detention of the petitioner is justified."9. The aforesaid decision was followed in AIR 1975 SC 775 (JOHNMARTIN v. STATE OF WEST BENGAL), wherein it was observed :-"3. ... This, however, does not mean the appropriateGovernment can reject the representation of the detenu in acasual or mechanical manner. The appropriate Government mustbring to bear on the consideration of the representation onunbiased mind."10. In (1991) 1 S.C.C.476 (K.M. ABDULLA KUNHI V. UNION OF INDIA),the Supreme Court emphasised the necessity of real and properconsideration.11. More recently, following the aforesaid decisions, it has beenobserved in 2004 S.C.C. (Crl.) 618 (A.C. RAZIA v. GOVERNMENT OF KERALA) asfollows :-"22. ... The exercise of the power under Section 11 shouldnot be a mere formality or a farce. Care and vigilance shouldinform the action of the Government while discharging itssupervisory responsibility. ..."12. Judged in the light of the aforesaid decisions of the SupremeCourt which have been followed (obviously required to be followed beingbinding precedent), it is apparent that in the present case the concernedauthorities have not bestowed required attention to the contents of thepost-detention representation. It may be that even after going throughthe bail application and the representation made to the Commissioner of https://hcservices.ecourts.gov.in/hcservices/ Customs before the detention order had been passed, the detainingauthority could have come to very same conclusion. However, sincespecific assertions had been made in the representation regardingsuppression of relevant materials, least one could have expected from theappropriate authority was to call for those documents, namely,representation dated 27.1.2007 made to the Commissioner of Customs and thebail application filed before the Sessions Court.13. Before parting with the case, we feel it as our duty toremind ourselves, as the authorities who are vested with important andenormous power of directing detention of a person without a trial, theanguish expressed by Bhagwati, J in the decision reported in AIR 1980 SC1183 (SMT. ICCHU DEVI CHORARIA v. UNION OF INDIA AND OTHERS) :-"3. . . . We may point out straightaway that we are not atall happy at the thought that our order may have resulted insetting free a possible smuggler. We are not unmindful of thefact that the COFEPOSA Act has been enacted for the purpose oferadicating the evil of smuggling which is eating into the vitalsof the nation like a cancerous growth and eroding the economicstability of the country and when an order is made by the Courtreleasing a person detained under this Act, it is quite possiblethat the effect of the order may be to let loose on the society,a smuggler who might in all probability, resume his nefariousactivities causing incalculable mischief and harm to the economyof the nation. But at the same time we cannot forget that thepower of preventive detention is a draconian power justified onlyin the interest of public security and order and it is toleratedin a free society only as a necessary evil. The power to detainwithout trial is an extraordinary power constituting encroachmenton personal liberty and it is the solemn duty of the Courts toensure that this power is exercised strictly in accordance withthe requirements of the Constitution and the law. The courtsshould always lean in favour of upholding personal liberty, forit is one of the most cherished values of mankind. Without itlife would not be worth living. It is one of the pillars of freedemocratic society. Men have rightly laid down their lives atits altar in order to secure it, protect it and preserve it. TheConstitution has therefore, while conceding the power ofpreventive detention, provided procedural safeguards with a viewto protecting the citizen against arbitrary and unjustifiedinvasion of personal liberty and the courts have always zealouslytried to uphold and enforce these safeguards. This Court hasalso through its judicial pronouncements created various legalbulworks and breakwaters into the vast powers conferred on theexecutive by the laws of preventive detention prevalent atdifferent points of time. It is true that sometimes even asmuggler may be able to secure his release from detention if oneof the safeguards or requirements laid down by the Constitutionor the law has not been observed by the detaining authority butthat can be no reason for whittling down or diluting the https://hcservices.ecourts.gov.in/hcservices/ safeguards provided by the Constitution and the law. If thedetaining authority wants to preventively detain a smuggler, itcan certainly do so, but only in accordance with the provisionsof the Constitution and the law and if there is a breach of anysuch provision, the rule of law requires that the detenu must beset at liberty, however wicked or mischievous he may be. The lawcannot be subverted, particularly in the area of personalliberty, in order to prevent a smuggler from securing his releasefrom detention, because whatever is the law laid down by thecourts in the case of a smuggler would be equally applicable inthe case of preventive detention under any other law. This courtwould be laying down a dangerous precedent if it allows a hardcase to make bad law. We must, therefore, interpret theprovisions of the Constitution and the law in regard topreventive detention without being in any manner trammeled by thefact that this is a case where a possible smuggler is seeking hisrelease from detention."14. We feel that the sentiments expressed in the said decisionmust be kept in view by the detaining authorities who should bestowserious attention to the relevant circumstances in each case beforedeciding to incarcerate a person in prison or while considering therepresentation.15. For the aforesaid reasons, we are constrained to quash theorder of detention and the detenu is set at liberty forthwith unless hispresence is required in any other case.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkTo1. The Secretary to Govt., Public (SC) Department, Secretariat, Chennai 600 009.2. The Secretary to Govt. of India, Ministry of Finance, Department of Revenue, COFEPOSA Unit, Central Economic Intelligence Bureau, Janpath Bhavan, B Wing, New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/

3. The Public Prosecutor, High Court, Madras.4. The Superintendent of Central Prison, Chennai5. The Joint Secretary to Government,Public (Law and Order)Fort St.George, Chennai – 91 CC To Mr.R.Loganathan, Advocate, SR NO.51386.HCP.NO.210/2007 RVL 28.08.2007