Ayisha Beevi v. The State of Tamil Nadu

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.1917 OF 2008Ayisha Beevi ...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.1/677-5/2008 dated11.11.2008 passed by the first respondent herein and quash the sameand direct the respondent to produce the body of the person of thedetenu namely Shahul Hameed, Son of Sharfudeen, aged about 37 yearsbefore this Court, now detained under Section 3(1)(i) of the COFEPOSAAct in the Central Prison, Puzhal, Chennai and set him at liberty.For petitioner : Mr.S.PalanikumarFor Respondents : Mr.N.R.Elango1 & 3 Additional Public ProsecutorFor Respondent No.2: Mr.M.Devandren,SPCG 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.1/677-5/2008dated 6.11.2008 whereby one Shahul Hameed, S/o Sharfudeen was orderedto be detained under the provisions of the Conservation of ForeignExchange 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 Shahul Hameed, 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.H-0349420, andalso flight ticket bearing No.SQ/ETKT 618 2537160249 boarding cardfor seat number 46C, counterfoil for baggage tags bearing number SQ-456415 and SQ 456416 and one limited release tag bearing number SQ218833 and customs declaration form. When he was questioned about thebaggage tags, he informed that they were lost, but he was foundcarrying a hand baggage, and the same was also checked. Thereafter,entertaining suspicion , he was asked to identify the checked inbaggage which he identified that they were three in number andaccordingly they were searched in the presence of two witnesses andfound to contain electronic goods, watches and computer parts asdetailed in the mahazar and they were valued at Rs.10,76,300/-. Thesaid goods were seized under the mahazar. The statement given by himwas recorded. It was found that the smuggling activities werepunishable under the provisions of Customs Act and also the goodswere to be confiscated. After arrest, he was produced before theAdditional Chief Metropolitan Magistrate, Economic Wing-I for thepurpose of judicial remand and accordingly, he was remanded.Originally, he made an application for bail on 10.10.2008 before theAdditional Chief Metropolitan Magistrate, Economic Offences-I,Egmore,Chennai and the same was dismissed on 22.10.2008. Anotherapplication for bail was filed on 24.10.2008 before the PrincipalSessions Division, Chennai and the same was pending. Recommendationswere made by the Sponsoring Authority that it was a fit case wherethe provisions of COFEPOSA Act were to be invoked for making theorder of detention. On scrutiny of the materials, the State was alsosatisfied that the detenu was indulged in smuggling activities and inorder to prevent him from such activities in future, an order ofdetention became necessary and accordingly made the order on11.11.2008, which is challenged in this Habeas Corpus Petition. https://hcservices.ecourts.gov.in/hcservices/

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 Nina Mohamed, but the name of thedetenu is Shahul Hameed. According to the detenu, he used to visitSingapore, Colombo and Hong Kong, but in the translated version ofthe remand application furnished to the detenu, it was stated that hevisited 'UAE'. The authority while making an order should haveapplied his mind and asked for clarification before passing theorder under challenge, but the authority has failed to do so. Allwould indicate that there is non-application of mind on the part ofthe 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 on11.11.2008. On scrutiny of the materials, non-application of mind onthe part of the first respondent is evident. The order of detentionshould have been passed by the detaining authority on scrutiny of thematerials placed before the same. As could been seen from the bookletin the declaration card, the value of the goods is found as Rs.1lakh, but it is found as Rs.50,000/- in the counter affidavit filed https://hcservices.ecourts.gov.in/hcservices/ before the Economic offence-I and in the bail application filed. Itis also found in the counter that the name of the person interceptedwas found as Nina Mohamed, while the actual name of the detenu isShahul Hameed. The Tamil version of the counter affidavit was servedupon the party,wherein as pointed out by the learned counsel, 'UAE'is also included along with the name of other countries. But, thedetenu is used to visit Singapore, Colombo and Hong Kong. If thematerials had been scrutinized properly, the detaining authorityshould have asked for clarification. This would indicate either thematerials were not properly scrutinized or if done, clarification wasnot obtained. So, in either way, the order is defective. 8. Added circumstances, it is brought to the notice of theCourt that after passing the detention order dated 11.11.2008 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 theConservation of Foreign Exchange and Prevention of SmugglingActivities Act, 1974 to appear through a legal practitioner in theproceedings before the Advisory Board, he is entitled to make arepresentation for the services of a lawyer to appear before the saidBoard which is under obligation to consider the same dispassionatelyin the facts of a particular case. The representation made by adetenu for legal assistance before the Advisory Board, has to beconsidered not perfunctorily but with due application of mind, sincein each case of detention, the liberty of an individual is involved."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. https://hcservices.ecourts.gov.in/hcservices/

9. Accordingly, the Habeas Corpus Petition is allowed,setting aside the detention order passed by the first respondent inG.O.No.S.R.1/677-5/2008 dated 11.11.2008 , The detenu, namely, ShahulHameed, who is now confined at Central Prison, Chennai is directed tobe set at liberty forthwith unless his presence is required inconnection with any other case. Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrar VJYTo1.The Secretary to Government, Public (SC) Department, Fort St.George, Chennai 600 009.2. The Secretary to Government, Union of India, Ministry of Finance, Dept., of Revenue, (COFEPOSA-Unit),New Delhi.3. The Superintendent, Central Prison, Puzhal, Chennai 600 066.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government, Public (Law & order) Department, Chennai-9.+ 1 cc to Mr.S.Palanikumar,Advocate,SR.31287HCP.NO.1917 OF 2008BKY(CO)EM/29.7.09