A.Sairam Beevi v. Public (SC) Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.NO.1702 OF 2008A.Sairam Beevi...PetitionerVs.1. The Secretary to the Government of Tamil Nadu, Public (SC) Department, Fort St.George, Chennai – 600 009.2. The Secretary to the Government of India, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), Central Economic Intelligence Bureau, Janpath Bhavan, 'B' Wing, 6thFloor, Janpath, New Delhi-110 001....RespondentsPetition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Habeas Corpus directing therespondents to produce the detenu Hussain Abdullah @ Anwar Basha sonof Hussain who is detained in Central Prison, Puzhal, Chennai inpursuance of detention order dated 12.08.2008 in Letter No.S.R.1/489-7/2008 before this Court to call for the records, set aside the orderand set the detenu at liberty forthwith.For petitioner : Mr.A.M.VenkatakrishnanFor Respondents: Mr.A.Saravanan,G.A.(Crl.side) for R1 Mr.K.Ravi Anantha Padmanabhan for R2.O R D E R(Order of the Court was made by M.CHOCKALINGAM,J)Challenge is made to an order of the first respondent inLetter.No.S.R.1/489-7/2008 dated 12.8.2008 whereby one Hussain https://hcservices.ecourts.gov.in/hcservices/ Abdullah 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. The petitioner/detenu was intercepted by the Officers of theDirectorate of Revenue Intelligence Chennai at aero bridge ofSingapore Airlines Flight SQ.529 on 17.7.2008 at Chennai AnnaInternational Airport. The detenu was found carrying baggage and alsoproduced his passport. When he was questioned, whether he has anychecked in baggage, the detenu replied that he has one but he did notproduce the baggage tag. The checked in baggage bearing numberSQ.203230 relating to the detenu ticket was identified. When he wasenquired by the officers as to whether he was in possession ofKetamine Hydrochloride, he replied in the negative. Then, there arosea necessity to open the baggage and make an inspection. He was takento the Air Intelligence Unit room. The baggage was opened in thepresence of two independent witnesses. It was found to containKetamine Hydrochloride in 25 pockets weighing 24.451 kgs. He wasquestioned whether he has any permission or document for possessionor to export the same, but he replied in the negative. He has alsonot obtained no objection certificate from the Narcotic Commissioner,Central Bureau of Narcotics for exporting. When it was found that itwas liable to be confiscated under the Customs Act, 1962, it wasseized under a cover of mahazar as contemplated under the Customs Act1962. He came forward to give confession statement and the same wasalso recorded. The detenu was produced before the Court ofAdditional Chief Metropolitan Magistrate, E.O. II, Egmore, where heapplied for bail and the same was rejected. The value of the seizedKetamine Hydrochloride was fixed at Rs.8,55,785/-. He made arepresentation which was found to be baseless and devoid of meritsand hence, the same was rejected. The State Government on beingsatisfied that in view of the facts and circumstances it wasnecessary to detain him under the provisions of COFEPOSA Act 1974 inorder to prevent him from indulging in smuggling activities infuture, passed an order of detention which is the subject matter ofchallenge before this Court.4. Advancing the arguments on behalf of the petitioner, learnedcounsel brought to the notice of the Court the following points.(a) Firstly, a perusal of the order would clearly indicate thatat the time of seizure, three samples each weighing 5 gms was takenand they were sent for analysis. Learned counsel took the Court to https://hcservices.ecourts.gov.in/hcservices/ page Nos.122 and 123 of the booklet wherein the report of the Analystwas attached and it was found that the weight of the samples wasshown as 26.5. gms, 34.2 gms. and 24.2 gms and at the time ofreturning the same, its weight was shown as 20.1 gms., 26.6 gms. and19.7. gms. respectively. Commenting on the same, learned counselwould submit, if really 5 gms was taken as sample the quantity whichwas received by the department could not be shown as found in thecertificate. Thus, it would be clear that what was actually taken bythe analyst was not the one that was sent by the authorities, whichaccording to them, was seized. (b) Secondly, the value of the seized goods viz., KetamineHydrochloride was shown as Rs.8,55,785/-. How the said figure wasarrived or the goods was valued remains unknown. (c) Thirdly, the department relied on notification No.67 of2007 dated 27.12.2007 and has also pointed out that in view of thatnotification though Ketamine Hydrochloride was not in the scheduleattached to the Narcotic Drugs and Psychotrotic Substances Act, noobjection certificate should have been received from the Commissionerof Narcotic but it was not obtained in this case. When the saiddocument namely, the Notification No.67/2007 was relied on by thedepartment, a copy of the same should have been supplied to thedetenu but not done. (d) Lastly, accordingly to the department, the detenu was foundin possession of the contraband on 17.7.2008 at the airport and thesame was seized on the same day and he was sent for judicial remand.He filed bail application on 28.7.2008 and the same was also pending.While the bail application filed was pending before the Court, theauthorities should not have observed in the order that "the StateGovernment was aware that you have filed a petition for bail and thesame is pending before the Court. In view of the facts andcircumstances set out above, the State Government are satisfied thatthere was real possibility of you coming out on bail....". Thus,when the bail application was pending, the detaining authority namelythe State Government has taken its own view that there is realpossibility of the detenu coming out on bail and hence, it is apremature one. Under such circumstances, the order would suffer onthat ground also. 5. Heard the learned counsel for the State on the abovecontentions.6. The factual position as recorded above was that when thepetitioner boarded the flight to Singapore, the departmententertained suspicion and he was intercepted. Then, the checked inbaggage was actually opened in the presence of witnesses and found tocontain Ketamine Hydrochloride and the same was seized under a covermahazar and the same was weighed and found to be 24.451kgs and it is https://hcservices.ecourts.gov.in/hcservices/ also valued at Rs.8,55,785/-. In notification No.67/2007 the saidcontraband was not one of the scheduled items annexed to the NarcoticDrugs and Psychotrotic Substances Act but as per the notificationdated 67/2007 dated 27.12.2007, the detenu should have obtained acertificate from the Narcotic Commissioner of India but he has notdone so. Under such circumstances, he was not only to be prosecutionunder the provisions of Customs Act but the State Government thoughtit fit, in order to prevent him from indulging in such activities infuture, it has became necessary to invoke the provisions of COFEPOSAAct and detain him, accordingly, the order of detention came to bepassed.7. The grounds of attack on which the order under challenge wasassailed were put forth by the learned counsel for the petitioner asstated above.8. The learned counsel for the department took the Court to pageNo.123 where the analyst has found the weight of the samples alongwith the plastic cover when it was received, was shown as 26.2gms, 34.2 gms and 24.2 gms and at the time of return it was shown as20.1 gms., 26.6 gms and 19.7 gms. Therefore, what was taken as samplefor analysis was 5 gms as pointed out by the department. Thus, thecontention of the learned counsel for the petitioner do not carry anymerit and it is liable to be rejected and the same is rejectedaccordingly. 9. As far as the valuation of the seized goods is concerned,the same was valued at Rs.8,55,785/- but nowhere it is stated in theorder that the value was fixed either taking into account the marketvalue or taking into account the internet value and it has to betaken as fixed by the department. So long as the value is not fixedon a particular document or any source and the copy of the same wasnot supplied to the detenu, it is evident by the the order that thevaluation was not fixed by the authorities on there own calculationsince nowhere it was stated in the order that it was valued takinginto account the market value or the internet value. Even assumingfor a moment that the valuation was randomly fixed, it cannot be aground so long as it is not relied upon by any document or any sourcethat it has been fixed by the authorities. Thus, this ground alsowould raise to ground. 10. In so far as the third ground that notification No.67/2007,relied on document, was not supplied to the detenu as required inlaw is concerned, the Court is able to see sufficient force in thecontention of the learned counsel for the petitioner. The contrabandKetamine Hydrochloride which alleged to have been smuggled by thedetenu is one of the item not including in the schedule annexed tothe Narcotic Drugs and Psychotrotic Substance Act. It is alsoadmitted that no objection certificate was not obtained from theCommissioner of Narcotics. It was one of the fact which led the https://hcservices.ecourts.gov.in/hcservices/ authorities to pass the order. It is not in dispute that it was oneof the relied on document by the State Government. If to be so, thelaw would require that the copy of the said notification should havebeen served upon the detenu but not done so. Under suchcircumstances, it has to be stated that the detention order in thatregard is infirm. 11. So far as the bail application is concerned, it is alsoadmitted, as could be seen from the order under challenge, that thebail application was filed on 28.7.2008 and the same was also pendingbut when the detention order came to be passed it is statedtherein that there is likelihood of the detenu coming out on bailwhile the bail application was pending before the court of law. Thus,it is highly premature for the authority to state that there waslikelihood of the petitioner coming out on bail. Such observation waswithout any basis or material whatsoever. Thus, it could be statedthat it is only an expression of apprehension in the mind of theauthority. Though the Court is unable to agree with the petitioner'scase in so far as the first and second grounds are concerned, theCourt has to agree with the third and fourth grounds and on thosegrounds, the petitioner is entitled to have to order of detention setaside. 12. Accordingly, this habeas corpus petition is allowed settingaside the order of the first 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.RegistrarvsiTo1. The Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009.2. The Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), Central Economic Intellegence Bureau, Janpath Bhavan, 'B' Wing, 6thFloor, Janpath, New Delhi. https://hcservices.ecourts.gov.in/hcservices/

3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai – 600 066.4. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr.A.M.Venkatakrishnan,Advocate,Sr.30500+ 1 cc to Mr.K.Ravi Anantha Padmanabhan,Advocate,SR.30716HCP.NO.1702 of 2008VSV(CO)EM/21.7.09