Minnath Mesarya v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:15.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.NO.1884 OF 2008Minnath Mesarya ...PetitionerVs.1.The State of Tamil Nadu rep. by its Secretary to Government, Public (SC) Department, Fort St.George, Chennai 600 009.2. The Union of India rep. by the Secretary to Government, Ministry of Finance, Dept., of Revenue, (COFEPOSA-Unit),New Delhi.3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai 600 066. ..RespondentsPetition under Article 226 of the Constitution of India forthe issuance of a writ of Habeas Corpus calling for the recordsrelating to the detention order in G.O.No.S.R.1/676-6/2008 dated6.11.2008 passed by the first respondent herein and quash the sameand direct the respondent to produce the body of the person of thedetenu namely Naina Mohamed, Son of Haja Alawdeen, aged about 47years before this Court, now detained under Section 3(1)(i) of theCOFEPOSA Act in the Central Prison, Puzhal, Chennai and set him atliberty.For petitioner : Mr.S.PalanikumarFor Respondents : Mr.N.R.Elango1 & 3 Additional Public ProsecutorFor Respondent No.2 : Mr.M.Devandren SPCCG https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) The petitioner herein challenges the impugned order ofdetention passed by the first respondent in G.O.No.S.R.1/676-6/2008dated 6.11.2008 whereby one Naina Mohamed, S/o Haja Alawdeen wasordered to be detained under the provisions of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, 1974.2. Affidavit filed in support of the petition along withthe grounds of attack and the entire materials placed arescrutinized. Heard the learned counsel on either side.3. The said order of the detention came to be made underthe following circumstances:The petitioner's husband one Naina Mohamed, on specificinformation that he was indulged in attempting to smuggle electronicgoods, was intercepted on his arrival at Anna International Airport,Chennai on 9.10.2008. He produced Indian Passport No.Z-1232706, andalso flight ticket bearing No.SQ/ETKT 618 2537084325 boarding cardfor seat number 44H, counterfoil for baggage tags and customsdeclaration form. When he was questioned about the baggage tags, heinformed that they were lost, but he was found carrying a handbaggage, and the same was also checked. Thereafter, entertainingsuspicion , he was asked to identify the checked in baggage which heidentified that they were three in number and accordingly they weresearched in the presence of two witnesses and found to containelectronic goods, watches and computer parts as detailed in themahazar and they were valued at Rs.10,88,897/-. The said goods wereseized under the mahazar. The statement given by him was recorded. Itwas found that the smuggling activities were punishable under theprovisions of Customs Act and also the goods were to be confiscated.After arrest, he was produced before the Additional ChiefMetropolitan Magistrate, Economic Wing-I for the purpose of judicialremand and accordingly, he was remanded. Originally, he made anapplication for bail on 10.10.2008 before the Additional ChiefMetropolitan Magistrate, Economic Offences-I, Egmore,Chennai and thesame was dismissed on 22.10.2008. Another application for bail wasfiled on 24.10.2008 before the Principal Sessions Division, Chennaiand the same was pending. Recommendations were made by the SponsoringAuthority that it was a fit case where the provisions of COFEPOSA Actwere to be invoked for making the order of detention. On scrutiny ofthe materials, the State was also satisfied that the detenu wasindulged in smuggling activities and in order to prevent him fromsuch activities in future, an order of detention became necessaryand accordingly made the order on 6.11.2008, which is challenged in https://hcservices.ecourts.gov.in/hcservices/ this Habeas Corpus Petition.4. Advancing arguments on behalf of the petitioner, learnedcounsel made the following submissions:According to the counsel, there were lot of discrepanciesfound in the order of detention which were on the basis of thematerials placed by the Sponsoring authority and the relied ondocuments. Learned counsel took the Court to the declaration cardalleged to have been made by the detenu where the value found as Rs.1lakh, but when the counter affidavit filed before the Court formaking the order of judicial remand, the value was found asRs.50,000/-. Learned counsel also further took the court to theextract where the value of the property was shown as Rs.50,000/- atone place and Rs.1 lakh at other places. The detenu was actuallyarrested on 10.10.2008, but whereas in the counter it was shown as14.8.2008. Learned counsel would further add that the counter filedin the bail application before the Additional Chief MetropolitanMagistrate, Economic offences No.I, Egmore, Chennai, the name of theperson concerned is denoted as Mohamed Ajmal Khan, but the name ofthe detenu is Naina Mohamed. According to the detenu, he used tovisit Singapore, Colombo and Hong Kong, but in the translated versionof the remand application furnished to the detenu, it was stated thathe visited 'UAE'. The counsel further added that the detenu traveledthrough boarding card for seat number 44H, but in the translatedversion, it is shown as 44B. The authority while making an ordershould have applied his mind and asked for clarification beforepassing the order under challenge, but the authority has failed to doso. All would indicate that there is non-application of mind on thepart of the authority.5. Learned counsel would further add that after passing thedetention order, the same was placed before the Advisory Board. Onhis appearance, the detenu has made a representation on 7.1.2009 thathe should be allowed to engage a counsel to assist him. But, the samewas not considered at all. It is true that he is not vested with aright to have the assistance of a counsel. The Apex Court had ruledthat when such a request is made, the Advisory Board should adducereasons to grant or not to grant. But, in the instant case, therequest was not at all considered and that has also very much causedprejudice to the detenu. Under such circumstances, the order has gotto be set aside. 6. Heard the learned Additional Public Prosecutor on theabove contentions and the Court has paid its anxious consideration.7. It is not in controversy that under the statedcircumstances, the order of detention came to be passed on 6.11.2008.On scrutiny of the materials, non-application of mind on the part of https://hcservices.ecourts.gov.in/hcservices/ the first respondent is evident. The order of detention should havebeen passed by the detaining authority on scrutiny of the materialsplaced before the same. As could been seen from page 21 of thebooklet, the declaration card, the value of the goods is found asRs.1 lakh, but it is found as Rs.50,000/- in the counter affidavitfiled before the Economic offence-I and in the bail applicationfiled. It is also found in the counter that the name of the personintercepted was found as Mohamed Ajmal Khan, while the actual name ofthe detenu is Naina Mohamed. The Tamil version of the counteraffidavit was served upon the party,wherein as pointed out by thelearned counsel, 'UAE' is also included along with the name of othercountries. But, the detenu is used to visit Singapore, Colombo andHong Kong. If the materials had been scrutinized properly, thedetaining authority should have asked for clarification. This wouldindicate either the materials were not properly scrutinized or ifdone, clarification was not obtained. So, in either way, the order isdefective. 8. Added circumstances, it is brought to the notice of theCourt that after passing the detention order dated 6.11.2008 andafter constitution of the Advisory Board, the detenu was directed toappear before the Advisory Board on 7.1.2009. Accordingly, heappeared and sought for permission to engage a counsel to representhim. It is not in dispute that such a representation was actuallymade before the Advisory Board. On perusal of the order made by theAdvisory Board, nowhere it is indicated that such a representationwas considered. The question whether the detenu has got a right tohave the assistance of a lawyer before the Advisory Board came up forconsideration before the Apex Court on number of occasions. On oneoccasion, the Supreme Court in KAVITHA Vs. STATE OF MAHARASHTRA ANDOTHERS reported in 1981 SC 1641 has held as follows:"Though a detenu has no right under Section 8(e) of the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 toappear through a legal practitioner in theproceedings before the Advisory Board, he isentitled to make a representation for the servicesof a lawyer to appear before the said Board whichis under obligation to consider the samedispassionately in the facts of a particular case.The representation made by a detenu for legalassistance before the Advisory Board, has to beconsidered not perfunctorily but with dueapplication of mind, since in each case ofdetention, the liberty of an individual isinvolved." https://hcservices.ecourts.gov.in/hcservices/ It would be quite clear that from the very reading of the decisionthat the detenu is not vested with any right under the provisions ofCOFEPOSA Act to appear through his counsel in proceeding before theAdvisory Board. But, he is entitled to make a representation for theservice of a lawyer to appear before the Board and the Board is alsounder obligation to consider the same. In the instant case, thoughthe representation was made before the Board to take assistance of alegal practitioner, nothing is found indicating whether such arepresentation was considered by the Board at all. Under suchcircumstances, the decision of the Apex Court, if applied, would alsomake the order under challenge defective. For all the above reasons,the order under challenge has got to be set aside and it isaccordingly set aside. 9. Accordingly, the Habeas Corpus Petition is allowed,setting aside the detention order passed by the first respondent inG.O.No.S.R.1/676-6/2008 dated 6.11.2008 , The detenu, namely, NainaMohamed, who is now confined at Central Prison, Chennai is directedto be set at liberty forthwith unless his presence is required inconnection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVJYTo1.The Secretary to Government, Public (SC) Department, Fort St.George, Chennai 600 009.2. The Secretary to Government, The Union of India Ministry of Finance, Dept., of Revenue, (COFEPOSA-Unit),New Delhi.3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai 600 066. https://hcservices.ecourts.gov.in/hcservices/

4.The Joint Secretary to GovernmentPublic(Law & Order), Fort. St.George,Chennai-9.5.The Public ProsecutorHigh Court, Madras.1 cc To Mr.S.Palanikumar, Advocate, SR.31286HCP.NO.1884 OF 2008pur(co)pmk.29.7.2009