Zulika Gani v. The Secretary to the Government Government of Tamil Nadu Public (SC) Department & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANHCP No.1876 of 2008Zulika Gani.. Petitioner vs1.The Secretary to the Government Government of Tamil Nadu Public (SC) Department Chennai 600 009.2.The Secretary to the Government Government of India Ministry of Finance Department of Revenue COFEPOSA Unit, Janpath New Delhi 110 001.3.The Additional Superintendent Central Prison-II, Puzhal, Chennai 600 066.4.The Intelligence Officer R & I (AIR) Customs House Chennai (RR No.29/08) .. RespondentsHabeas corpus petition filed under Article 226 of theConstitution of India praying for a writ of habeas corpus calling forthe records of the first respondent herein made in G.O.No.SR.1/567-3/2008, setting aside the order of detention passed therein dated9.9.2008, and directing the respondents herein to produce the bodyand person of the detenu by name Gani Abdul Hameed, S/o. Gani beforethis Court and set him at liberty.For Petitioner: Mr.Mohamed EhiyaFor Respondents: Mr.N.R.Elango Additional Public Prosecutor for RR1 & 3 Mr.M.Dhandapani CGSC for RR2 and 4 https://hcservices.ecourts.gov.in/hcservices/ ORDERChallenge is made to an order of detention made by the firstrespondent in G.O.No.SR.1/567-3/2008 dated 9.9.2008, against one GaniAbdul Hameed, the son of the petitioner herein under the provisionsof COFEPOSA Act. 2.The facts and circumstances which led the authorities to makethe order under challenge can be stated as follows:(a) On 17.7.2008 at about 22.30 hours, the detenu, holder ofIndian Passport No.F 6166973 issued on 3.2.2006 at Chennai, bound forKuala Lumpur via Singapore by Singapore Airlines flight along withone black colour "Polo House USA Collection" stroller suitcasecarried as checked-in-baggage, and one black colour "Star Dragon"laptop bag carried as hand baggage, was intercepted after thecompletion of the immigration formalities. When he was proceeding tothe security check, the authorities entertained suspicion that hemight be carrying contraband/restricted goods either in his baggageor in person. When he was questioned, he replied in negative. Theauthorities were not satisfied, and he was brought to the AirIntelligence Unit at Anna International Terminal for a detailedexamination. The Officer in the presence of witnesses opened thelaptop bag and it found to contain the personal belongings only.Thereafter the black colour "Polo House USA Collection" strollersuitcase which was checked-in baggage, was opened, and it was foundto be stuffed with numerous light green colour polythene packets withmarking "PX TONER for use in CANON" only. The packets were thennumbered as 1 to 25 for the purpose of easier identification andtaken up for examination. When opened and examined, each of thepacket was found to contain white colour crystalline powder packed inpolythene cover. On being questioned by the Officer, he finallyadmitted that white colour crystalline powder is a substance calledKetamine. (b) The substance containing polythene covers in the polythenepacket marked "1" weighed 935 gms, "2" weighed 935 gms, "3" weighed930 gms, "4" weighed 925 gms, "5" weighed 960 gms, "6" weighed 981gms, "7" weighed 951 gms, "8" weighed 955 gms, "9" weighed 930 gms,"10" weighed 941 gms, "11" weighed 970 gms, "12" weighed 1,017 gms,"13" weighed 950 gms, "14" weighed 931 gms, "15" weighed 937 gms,"16" weighed 934 gms, "17" weighed 943 gms, "18" weighed 941 gms,"19" weighed 945 gms, "20" weighed 935 gms, "21" weighed 935 gms,"22" weighed 935 gms, "23" weighed 941 gms, "24" weighed 982 gms, and"25" weighed 961 gms. Thus they were all totallling to 23700 gramsof the above said white coloured crystalline powder identified by himas Ketamine. Thereafter, they were recovered under a cover ofseizure mahazar in the presence of witnesses. Thus, he has committedthe offence punishable under Sections 132 and 135 of the Customs Act,1962 read with Foreign Trade under the Foreign Trade (Development &Regulation) Act, 1992, and a case was registered under the provisionsof the Customs Act. Further, the act of the detenu was found to besmuggling as defined under the Customs Act. https://hcservices.ecourts.gov.in/hcservices/ (c) Following the arrest, he was produced before the AdditionalChief Metropolitan Magistrate, E.O.II, Egmore, Chennai, and remandedto judicial custody till 1.8.2008. He was lodged in Central Prison,The period was extended till 13.8.2008, 27.8.2008 and then till10.9.2008. The seizure was valued at Rs.8,29,500/- at the AnnaInternational Airport. (d) A telegram was sent to his wife Shaira Banu informing thathe was remanded to judicial custody and lodged in Central Prison,Chennai, and thereafter, a search was made in his residentialpremises at No.7/1, 9th Street, Kamarajar Nagar, Vysarpadi, Chennai39, by the officials of the Customs Department on 18.7.2008. Nocontraband or incriminating documents were either found or seized.Then he gave a written statement on 31.7.2008, and the same was alsorecorded. Thereafter, he moved for bail, and the bail applicationwas dismissed by the Additional CMM, E.O.II. (e) Thereafter, the recommendations were made that theactivities of the detenu were detrimental and found to be smugglingactivities, and under the circumstances, he should be detained underthe provisions of the Act. The detaining authority after perusal ofthe entire materials, also satisfied that in order to prevent himfrom indulging in any such activities in future, it is necessary todetain him under the provisions of the COFEPOSA Act, 1974, and alsoto prevent him from indulging in smuggling of goods in future, andaccordingly the order was passed and served upon him. 3.Under the stated circumstances, the mother has brought forththis petition before this Court seeking to set aside that order.4.Advancing arguments on behalf of the petitioner, the learnedCounsel would submit that the order under challenge dated 9.9.2008,suffers from both factually and legally. According to the Counsel,the order under challenge came to be made by the department on thespecific allegation that he was in possession of 23700 grams ofcontraband and that too without any document which is expected inlaw, and under the circumstances, the act of the detenu should betermed as smuggling, and in order to prevent him from indulging infuture activities he should be detained. The department stated on areport given on testing, that the contraband which was in hispossession at the time was actually Ketamine; but, the test reportdated 11.8.2008, reads that UV absorbance (max) of the samples couldnot be determined as the UV -VIS. Spectrophotometer is not in workingcondition. It would be quite clear that though the samples wereactually placed before the analyst for testing, it could not be foundout, and under the circumstances, what was alleged to have beencarried by the detenu and recovered by the authorities cannot bestated as Ketamine. By that test report, the authority could not fixthat it was ketamine hydrochloride. Under the circumstances, thetest report cannot form basis to come to the conclusion that what wascarried by him was ketamine. Hence the authority before passing theorder should have called for a clarification, but not done so. Itcan even be stated that it was done without application of mindeither or the authority has not fixed that it was ketaminehydrochloride, and hence the order would suffer. https://hcservices.ecourts.gov.in/hcservices/

5.The learned Counsel would further submit that it is found inparagraph (xi) of the impugned order that the approximate grey marketvalue of the seized ketamine hydrochloride is Rs.8,29,500/-; thatnowhere in the course of the order or in any one of the materialsplaced before the authority, there was anything to indicate how thevalue namely Rs.8,29,500/-, was actually arrived at and whether thevalue was arrived at by any document or pursuant to an enquiry fromthe market; that those documents should be taken as relied ondocuments; that in the case on hand, neither those documents wereserved upon the detenu, nor there was anything to indicate how thevalue namely Rs.8,29,500/-, was actually arrived at; that in theabsence of the same, such a document fixing the value atRs.8,29,500/- is found to be defective; and that the same would causeprejudice to the interest of the detenu.6.It is further submitted by the learned Counsel that when therelied on documents were served upon the detenu, item No.23 is shownas copy of notification No.67/2004 in English with Tamil translationas found in pages 192 and 193 of the booklet; that though it is foundto be notification No.67/04, what was actually served upon the detenuwas the copy of the notification No.67/07 and not 67/04; that if thenotification 67/04 was actually relied, then that would be the reliedon document; but, a copy of such document was not given; on thecontrary, a copy of notification 67/07 in English with Tamiltranslation, was served upon him; that under the circumstances, itcan be well stated that the relied on document was not actuallyserved upon the party, and hence it would also make the orderdefective. 7.Added further the learned Counsel that it was claimed by thedepartment that a voluntary statement was given by the detenu; thatit was the usual practice that the statement is being made by thedetenue and used to be reduced into writing by the officials of thedepartment; that in the instant case, as could be seen from page 71of the booklet, it is found in the handwriting of the detenu, andthus the procedure has not been strictly followed and that would alsomake it defective.8.Lastly, the learned Counsel would contend that no badantecedents of the detenu are shown anywhere; that there was only oneoccasion even according to the department; that if to be so, therewas no justification in detaining him under the Act, and on thatground also the order suffers.9.The Court heard the learned Additional Public Prosecutor forthe State and the learned Central Government Standing Counsel andpaid its anxious consideration on the submissions made.10.Admittedly, the order under challenge came to be passed bythe first respondent on 9.9.2008. On scrutiny of the materialsplaced, the first respondent has recorded its satisfaction that theactivities of the detenu were to be termed as smuggling, and in orderto prevent him from indulging in further activities in future, anorder of detention under the provisions of COFEPOSA Act was to bemade, and accordingly made the order. The order came to be passedunder the above stated facts and circumstances that on 17.7.2008 at https://hcservices.ecourts.gov.in/hcservices/ about 22.30 hours, when the detenu was bound for Kuala Lumpur bySingapore Airlines flight, after the completion of the immigrationformalities, he was intercepted by the authorities of the AirIntelligence Unit, and entertaining suspicion, both his checked-inbaggage and the other laptop bag in hand were actually searched inthe presence of witnesses, and the checked-in baggage was found tocontain 25 small packets which weighed 23700 grams of Ketamine, andit was seized under a cover of mahazar, and the statement of thedetenu was recorded. A case under Sections 132 and 135 of theCustoms Act was registered. The contraband was liable to beconfiscated under the provisions. Then he was produced before theAdditional Chief Metropolitan Magistrate, E.O.II, Chennai, and thecontraband was also produced before the Court, and it was valued atRs.8,29,500/-. The arrest was also intimated to the relatives thathe was produced before the Court and sent for judicial remand. Theincident was narrated and placed before the first respondent whichsatisfied that it was a fit case where an order of detention was tobe made under the provisions of the COFEPOSA Act. Accordingly, theorder has been passed.11.As regards the first contention that the goods alleged tohave been seized from the detenu though subjected to testing, thetest report did not indicate that it was Ketamine Hydrochloride, thelearned Counsel relied on the analyst's report as to the testing ofsamples as found in page 165 of the booklet. This contention has gotto be discountenanced for the simple reason that the analyst's reportwhereby the testing of samples was done reads as follows:"Each of the five samples is in the form of whitecrystalline powder. In respect of tested characteristics,each sample responds the tests for Ketamine Hydrochloride,an organic compound."Thus it would be quite clear that what was actually seized wasKetamine Hydrochloride as per the report, and hence, this contentionhas got to be rejected.12.Insofar as the second contention as to the valuation of thecontraband, it is mentioned as Rs.8,29,500/-. The report in page 189of the booklet reads as follows:"As such, to arrive at the price of the drug in the illegalmarket, discreet enquiries carried out and revealed thatthe prevalent market value for this drug in the grey marketis Rs.35,000/- per Kg, which value has been adopted in thisseizure as well as in all the recent seizures by the AirIntelligence Unit."'Thus it would be quite clear that the market value was arrived atRs.8,29,500/- by conducting discreet enquiries. It is pertinent topoint out that the order came to be passed on 9.9.2008. But thisnote which speaks about the the value that was arrived by discreetenquiries in the market was dated 27.3.2008, a copy of which was alsoplaced in the hands of the authority. Thus it would be quiteindicative of the fact that the value was not arrived by relying onany document or by recording any statement from any individual or any https://hcservices.ecourts.gov.in/hcservices/ marketeer. The valuation was actually fixed random. So long as thevalue of the goods is not fixed basing on any documentary evidence orany source, under the circumstances, it cannot be a ground to setaside the order.13.The third contention is that item No.23 speaks about thenotification 67/04; but, a copy of that notification was not servedupon the party; that what was served upon him was the notification ofthe year 2007, and hence the order has got to be termed defective.Page 192 of the booklet contains Notification No.67 (RE -2007)/2004-2009, New Delhi, dated 27.12.2007. The department has also servedTamil translation of this English version. Needless to say that thisnotification was a relied on document. The reply given by thelearned Additional Public Prosecutor is that it was a notificationwhich would cover the period 2004-2009, and under such circumstances,the notification that was served upon him would suffice. The learnedAdditional Public Prosecutor also took the Court to page 192 of thebooklet where from it could be seen that the notification was for theperiod from 2004 to 2009, and whenever necessity arises, revisedentries are being made. He also took the Court to the contents ofthe same. From this it can be stated that the notification wasoriginally issued in the year 2004 which would cover for a periodtill 2009, and then and there revised entries are made. Accordingly,it could be found that the original notification was only of the year2004, and it is also made mention therein. Under the circumstances,the contention that copy of notification 67/04 was not served uponhim cannot be accepted. Hence it is rejected.14.As far as the fourth contention that it is the usual practiceof the department to get statement of the detenu to be made orally,and it is used to be reduced into writing by the officials concerned;but, in the instant case it is found in the handwriting of the detenuhimself, and under the circumstances, the procedure is not followed,is concerned, this Court is unable to agree with the learned Counselfor the simple reason that nowhere the law or the procedure wouldrequire that the statement must be made by the party orally, and itshould be reduced into writing by the officials of the department.So long as the statement is not tainted with any invalidating factor,this Court is unable to agree with the contention put forth by thelearned Counsel for the petitioner. It is also admitted that it isin the handwriting of the detenu. Under the circumstances, it cannotbe stated that there was a deviation of any procedure available.Thus this contention has got to be rejected. 15.As regards last contention put forth by the learned Counselthat it was only a stray incident by which it cannot lead to ajustifiable satisfaction that the person was engaged in smugglingactivities, and in future he would also indulge in such activities,and hence a necessity arose to pass an order, the Court has tonecessarily agree with the learned Counsel. In this regard whether astray incident would suffice to make such an order came up forconsideration before the Supreme Court in a case reported in 2009 (2)CRIMES 49 (SC) (POOJA BATRA V. UNION OF INDIA AND OTHERS) whereinTheir Lordships have held thus: https://hcservices.ecourts.gov.in/hcservices/ "As already discussed, even based on one incident theDetaining Authority is free to take appropriate actionincluding detaining him under COFEPOSA Act. The DetainingAuthority has referred to the violation in respect ofimportable goods covered under Bill of Entry No.589144 dated25.04.2007. In an appropriate case, an inference couldlegitimately be drawn even from a single incident ofsmuggling that the person may indulge in smugglingactivities, however, for that purpose antecedents and natureof the activities already carried out by a person arerequired to be taken into consideration for reachingjustifiable satisfaction that the person was engaged insmuggling and that with a view to prevent, it was necessaryto detain him. If there is no adequate material forarriving at such a conclusion based on solitary incident theCourt is required and is bound to protect him in view of thepersonal liberty which is guaranteed under the Constitutionof India."16.In the instant case, it was a solitary incident. Apart fromthis, no bad antecedents are brought to the notice of the Court thathe was actually involved in any criminal activities in the past, andfurther he was engaged in smuggling. In the case on hand this Courtis unable to notice that the detenu had the propensity andpotentiality to involve in such activities in future. Under thecircumstances, once it is a stray incident which is brought to thenotice of the Court, in the absence of any material or badantecedents in the past, or in the absence of anything to indicatepropensity and potentiality of the detenu to involve in future, thisCourt feels that on that ground, the order under challenge has got tobe set aside following the above judgment of the Apex Court. Thoughthe Court is unable to agree with the learned Counsel in respect ofthe above four grounds, on the last ground the order has got to beset aside.17.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.nsv Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1.The Secretary to the Government Government of Tamil Nadu Public (SC) Department Chennai 600 009.2.The Secretary to the Government Government of India Ministry of Finance Department of Revenue COFEPOSA Unit, Janpath New Delhi 110 001.3.The Additional Superintendent Central Prison-II, Puzhal, Chennai 600 066.4.The Intelligence Officer R & I (AIR) Customs House Chennai (RR No.29/08)5.The Public Prosecutor High Court, Madras.6.The Joint Secretary to Government public (Law & order) Dept. Fort ST. George Chennai-9.7.The SAR, COFEPOSA High Court Madras.One CC to Mr. M.Dhandapani, Advocate Sr.34029.one cc to Mr.Mohamed Ehiya, Advocate SR.33648.HCP No.1876 of 2008NG(CO)EU 12.8.2009.