Sugumath Kanish 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.1885 OF 2008Sugumath Kanish ...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 Indiafor the issuance of a writ of Habeas Corpus calling for therecords relating to the detention order in G.O.No.S.R.1/675-6/2008dated 6.11.2008 passed by the first respondent herein and quashthe same and direct the respondent to produce the body of theperson of the detenu namely Ajmal Khan, Son of Mohamed Hussain,aged about 42 years before this Court, now detained under Section3(1)(i) of the COFEPOSA Act in the Central Prison, Puzhal, Chennaiand set him at liberty.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.1/675-6/2008 dated 6.11.2008 whereby one Ajmal Khan, S/o Mohamed Hussainwas ordered to be detained under the provisions of theConservation of Foreign Exchange and Prevention of SmugglingActivities 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 Ajmal Khan, on specificinformation that he was indulged in attempting to smuggleelectronic goods, was intercepted on his arrival at AnnaInternational Airport, Chennai on 9.10.2008. He produced IndianPassport No.F-9963511 and also flight ticket bearing No.SQ/ETKT618 2537021220 boarding card for seat number 45H, counterfoil forbaggage tags and customs declaration form. When he was questionedabout the baggage tags, he informed that they were lost, but hewas found carrying a hand baggage, and the same was also checked.Thereafter, entertaining suspicion , he was asked to identify thechecked in baggage which he identified that they were three innumber and accordingly they were searched in the presence of twowitnesses and found to contain electronic goods, watches andcomputer parts as detailed in the mahazar and they were valued atRs.10,51,300/-. The said goods were seized under the mahazar. Thestatement given by him was recorded. It was found that thesmuggling activities were punishable under the provisions ofCustoms Act and also the goods were to be confiscated. Afterarrest, he was produced before the Additional Chief MetropolitanMagistrate, Economic Wing-I for the purpose of judicial remand andaccordingly, he was remanded. Originally, he made an applicationfor bail on 10.10.2008 before the Additional Chief MetropolitanMagistrate, Economic Offences-I, Egmore,Chennai and the same wasdismissed on 22.10.2008. Another application for bail was filedon 24.10.2008 before the Principal Sessions Division, Chennai andthe same was pending. Recommendations were made by the SponsoringAuthority that it was a fit case where the provisions of COFEPOSAAct were to be invoked for making the order of detention. Onscrutiny of the materials, the State was also satisfied that the https://hcservices.ecourts.gov.in/hcservices/ detenu was indulged in smuggling activities and in order toprevent him from such activities in future, an order of detentionbecame necessary and accordingly made the order on 6.11.2008,which is challenged in this Habeas Corpus Petition.4. Advancing arguments on behalf of the petitioner,learned counsel made the following submissions:According to the counsel, there were lot ofdiscrepancies found in the order of detention which were on thebasis of the materials placed by the Sponsoring authority and therelied on documents. Learned counsel took the Court to thedeclaration card alleged to have been made by the detenu where thevalue found as Rs.1 lakh, but when the counter affidavit filedbefore the Court for making the order of judicial remand, thevalue was found as Rs.50,000/-. Learned counsel also further tookthe court to the extract where the value of the property was shownas Rs.50,000/- at one place and Rs.1 lakh at other places. Thedetenu was actually arrested on 10.10.2008, but whereas in thecounter it was shown as 14.8.2008. According to the detenu, heused to visit Singapore, Colombo and Hong Kong, but in thetranslated version of the remand application furnished to thedetenu, it was stated that he visited 'UAE'. The counsel furtheradded that the detenu traveled through boarding card for seatnumber 45H, but in the translated version, it is shown as 45B.The authority while making an order should have applied his mindand asked for clarification before passing the order underchallenge, but the authority has failed to do so. All wouldindicate that there is non-application of mind on the part of theauthority.5. Learned counsel would further add that after passingthe detention order, the same was placed before the AdvisoryBoard. On his appearance, the detenu has made a representation on7.1.2009 that he should be allowed to engage a counsel to assisthim. But, the same was not considered at all. It is true that heis not vested with a right to have the assistance of a counsel.The Apex Court had ruled that when such a request is made, theAdvisory Board should adduce reasons to grant or not to grant.But, in the instant case, the request was not at all consideredand that has also very much caused prejudice to the detenu. Undersuch circumstances, the order has got to be set aside. 6. Heard the learned Additional Public Prosecutor onthe above contentions and the Court has paid its anxiousconsideration.7. It is not in controversy that under the statedcircumstances, the order of detention came to be passed on6.11.2008. On scrutiny of the materials, non-application of mind https://hcservices.ecourts.gov.in/hcservices/ on the part of the first respondent is evident. The order ofdetention should have been passed by the detaining authority onscrutiny of the materials placed before the same. As could beenseen from page 18 of the booklet, the declaration card, the valueof the goods is found as Rs.1 lakh, but it is found as Rs.50,000/-in the counter affidavit filed before the Economic offence-I andin the bail application filed. 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 ofother countries. But, the detenu is used to visit Singapore,Colombo and Hong Kong. If the materials had been scrutinizedproperly, the detaining authority should have asked forclarification. This would indicate either the materials were notproperly scrutinized or if done, clarification was not obtained.So, in either way, the order is defective. 8. Added circumstances, it is brought to the notice ofthe Court that after passing the detention order dated 6.11.2008and after constitution of the Advisory Board, the detenu wasdirected to appear before the Advisory Board on 7.1.2009.Accordingly, he appeared and sought for permission to engage acounsel to represent him. It is not in dispute that such arepresentation was actually made before the Advisory Board. Onperusal of the order made by the Advisory Board, nowhere it isindicated that such a representation was considered. The questionwhether the detenu has got a right to have the assistance of alawyer before the Advisory Board came up for consideration beforethe Apex Court on number of occasions. On one occasion, theSupreme Court in KAVITHA Vs. STATE OF MAHARASHTRA AND OTHERSreported in 1981 SC 1641 has held as follows:"Though a detenu has no right underSection 8(e) of the Conservation of ForeignExchange and Prevention of Smuggling ActivitiesAct, 1974 to appear through a legalpractitioner in the proceedings before theAdvisory Board, he is entitled to make arepresentation for the services of a lawyer toappear before the said Board which is underobligation to consider the same dispassionatelyin the facts of a particular case. Therepresentation 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."It would be quite clear that from the very reading of the decisionthat the detenu is not vested with any right under the provisionsof COFEPOSA Act to appear through his counsel in proceeding before https://hcservices.ecourts.gov.in/hcservices/ the Advisory Board. But, he is entitled to make a representationfor the service of a lawyer to appear before the Board and theBoard is also under obligation to consider the same. In theinstant case, though the representation was made before the Boardto take assistance of a legal practitioner, nothing is foundindicating whether such a representation was considered by theBoard at all. Under such circumstances, the decision of the ApexCourt, if applied, would also make the order under challengedefective. For all the above reasons, the order under challengehas got to be set aside and it is accordingly set aside. 9. Accordingly, the Habeas Corpus Petition is allowed,setting aside the detention order passed by the first respondentin G.O.No.S.R.1/675-6/2008 dated 6.11.2008 , The detenu, namely,Ajmal Khan, who is now confined at Central Prison, Chennai isdirected to be set at liberty forthwith unless his presence isrequired in connection with any other case.VJYSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government, Public (SC) Department, Fort St.George, Chennai 600 009.2. The Secretary to Government, Ministry of Finance, Dept., of Revenue, (COFEPOSA-Unit),New Delhi.3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai 600 066.4.The Joint Secretary to Government Public (Law and order), Fort St George, Chennai 9. 5.The Public Prosecutor,High Court, Madras.+ 1 cc to Mr. S. Palanikumar, Advocate SR No.31288VSV(CO)SR/29.7.2009HCP.NO.1885 OF 2008