Salukhalbeevi v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:06.08.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.NO.1939 OF 2008Salukhalbeevi..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.1/747-4/2008 dated18.11.2008 passed by the first respondent herein and quash the sameand direct the respondent to produce the body of the person of thedetenu namely Sadhik Basha, Son of Kareem, aged about 39 years beforethis Court, now detained under Section 3(1)(i) of the COFEPOSA Act inthe 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.S.ThirumavalavanSPECG --- 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.1/747-4/2008dated 18.11.2008 whereby one Sadhik Basha S/o Kareem was ordered tobe 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 with thegrounds of attack and the entire materials placed are scrutinized.Heard the learned counsel on either side.3. The said order of the detention came to be made under thefollowing circumstances:(i) On 7.10.2008, the detenu Sadhik Basha, holder of IndianPassport arrived from Singapore along with two checked-in-baggageand one blue colour shoulder bag as hand baggage. He was interceptedby the Intelligence Officer attached to the Air Intelligence Unit ofAir customs when he was proceeding towards 'exit' by crossing GreenChannel, that he might be attempting to smuggle electronic goods ofhigh value in his baggage. On enquiry, the detenu stated that he wascarrying goods worth Rs.50,000/-. Not satisfied with the statement,the officer in the presence of two independent witnesses, make adetailed examination on his hand and checked- in baggage one by oneand when opened in the presence of witnesses, they found to contain 8Nos. Sony Digital Camera DSC-W150, 3 Nos. Sony DCR-VX-2100 E VideoCamera Recorder, 20 Nos. Nikon Cool Pix S210 and 4 Nos. Pioner DEH3050 UB car stereo panels. On personal search, no incriminatingdocument was recovered. When he was questioned as to whether he wasin possession of any valid document for the legal import or the abovesaid electronic goods, he replied in negative. He further added thathe was not aware of the value and he will agree for the value to beadopted by the Department. The value of the goods was fixed atRs.9,07,050/-. Since he was attempted to smuggle the electronic goodsinto India by way of gross mis-declaration thereby contravening theprovisions of Customs Act, 1962 read with Foreign Trade (Developmentand Regulation) Act, 1992, the goods were seized under a mahazar. Thestatement which was given voluntarily was recorded in the presence ofwitnesses. All the goods were confiscated under Section 111 of theCustoms Act. He was arrested on 8.10.2008 and produced before theAdditional Chief Metropolitan Magistrate, E.O.I, Chennai, andremanded to judicial custody and the period of remand was alsoextended then and there. A telegram dated 8.10.2008 was sent to as tothe confirmation of arrest and reasons therefor. A search was made inhis residence on 8.10.2008. A bail application was filed on hisbehalf on 8.10.2008 before the Additional Chief MetropolitanMagistrate, E.O.I, Chennai and the same was dismissed on 22.10.2008.Thereafter, another bail application was filed before the Principal https://hcservices.ecourts.gov.in/hcservices/ Sessions Judge, City Civil Court, Chennai and the same was dismissedon 10.11.2008 and thereafter one another bail petition dated13.11.2008 was filed before this Court and the same is pending fordisposal. (ii) Pending disposal, a representation was sent by his mother on24.10.2008 to the State Government. On consideration, the same wasrejected. Under such circumstances, the State Government satisfiedthat he indulged in smuggling of goods and also felt that there arosenecessity that an order of detention is to be passed under theprovisions of the Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974 and in order to prevent him fromindulging in such prejudicial activities in future, an order ofdetention became necessary and accordingly made the order on18.11.2008, which is challenged in this Habeas Corpus Petition.5. Assailing the order, the learned counsel for the petitionerwould submit that the order of detention came to be passed on18.11.2008. It is not in controversy that the detenu made a bailapplication before the Additional Chief Metropolitan MagistrateE.O.I, Court, Chennai on 8.10.2008 and the same was dismissed,subsequently another bail application was filed on 13.11.2008 and thesame was pending. When the copies of materials and the relied upondocuments were furnished to him, the fact as to the first applicationand its dismissal and the second application and its pendency werenot actually incorporated and hence the order is defective. This factwas brought to the notice of the authority by way of representation.It is averred in the affidavit filed in support of the petition, butthis has not been answered by the State Government. Further thelearned counsel would further add that though a bail application wasfiled on 13.11.2008 and the same was pending before this Court, theauthority has made the following observation: "The State Government are aware of thefact that he was in the Central Prison, Chennai asremand prisoner that his remand is for the periodspecified in law and he would be released onstatutory bail thereafter. The Government are alsoaware that he would likely to file another bailpetition in the same Court or before the HigherCourt and there was likelihood of he being releasedon bail”. When the bail application was actually pending before the High Court,such an observation that he might have filed another bail applicationwould clearly indicate the non-application of mind on the part of thedetaining authority. https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel for the petitioner would further add that arepresentation was made on behalf of the detenu and the same wasrejected after a period of 93 days. It is quite clear that therelied upon documents should have been served upon the detenu withina period of five days, but the delay has been occurred which causedprejudice to the detenu. 7. Added further the learned counsel, as to the date ofrepresentation stated in Page 5 of paragraph 10 of the detentionorder, it does not speak about the date when it was rejected, but itwould contain only the Month as November and year as 2008, Thus, whenit was actually rejected, the date was not made known to the detenu. 8. 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 20.1.2009that he should be allowed to engage a counsel to assist him. But, thesame was not considered at all. It is true that the detenu is notvested with a right to have the assistance of a counsel. The ApexCourt had ruled that when such a request is made, the Advisory Boardshould adduce reasons to grant or not to grant. But, in the instantcase, the request was not at all considered and that has also verymuch caused prejudice to the detenu. Under such circumstances, on allthe above grounds, the order of detention has got to be set aside. 9. Heard the learned Additional Public Prosecutor on the abovecontentions and the Court has paid its anxious consideration. 10. It is not in controversy that the order of detention came tobe passed by the first respondent on 18.11.2008 under the facts andcircumstances referred above. A perusal of the grounds of detentionin Page 5 of Paragraph 9 reads as follows: "The Court in its order dated 10.11.2008 hasdismissed the above bail application. You havefiled another bail application dated 13.11.2008before the High Court, Chennai which is pendingfor disposal."But, as rightly pointed out by the learned counsel for thepetitioner, the above lines have not been found in the translatedversion, thus as rightly pointed by the learned counsel that when therepresentation was made, this mistake was also brought to the noticeof the authority. It is also averred in the affidavit filed insupport of the petition, but no reply was forthcoming from the State.The translation copy has to be served on the detenu in the languageknown to him, so that he could understand , but in the instant case https://hcservices.ecourts.gov.in/hcservices/ though the copy of the order was actually served on him in thelanguage known to him, the omission of this part would be clearlyindicative of the fact that he was not able to understand the orderin full and though a representation was made in this regard, no replywas given. All would go to show that the order of detention isdefective. Apart from that, it is also an admitted position that thebail application was filed on 13.11.2009 before this Court, while thematter stood thus, the authority has averred in its order that hewould likely to file another bail application before the same orother court and hence there is likelihood of he being released onbail. This observation can only be stated as an expression ofimpression in the minds of the authority, who made the order. While abail application was actually pending in this Court, no question offiling another bail application would arise and thus it can be statedthat the said observation is premature and the order would suffer onthis ground. 11. Further, when the law would mandate that the relied upondocuments must be served upon the detenu within the statutory periodof five days, but in the instant case, the documents have been servedafter 93 days. Added further even the date of rejection ofrepresentation is not found in the order, but it was stated as --/11/2008 and even though it was brought to the notice of theauthority by way of representation, the date of order of rejectionremains unknown, 12. Above all, when the detenu appeared before the AdvisoryBoard on 20.1.2009, he has also made a written representation to havethe legal assistance for the reasons stated before the same. Theorder of approval made by the Board is also perused by the Court.There was an occasion to consider the questions whether the order ofdetention must be placed before the Advisory Board and whether legalAssistance has got to be granted, it came up for consideration beforethe Apex Court in KAVITHA Vs. STATE OF MAHARASHTRA AND OTHERSreported in 1981 SC 1641 has held as follows:"Though a detenu has no right under Section8(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 theservices of a lawyer to appear before the saidBoard which is under obligation to consider thesame dispassionately in the facts of a particularcase. The representation made by a detenu forlegal assistance before the Advisory Board, hasto be considered not perfunctorily but with dueapplication of mind, since in each case of https://hcservices.ecourts.gov.in/hcservices/ detention, the liberty of an individual isinvolved". It would be quite clear that from the very reading of thedecision that the detenu is not vested with any right under theprovisions of COFEPOSA Act to appear through his counsel inproceeding before the Advisory Board. But, he is entitled to make arepresentation for the service of a lawyer to appear before the Boardand the Board is also under obligation to consider the same. In theinstant case, though the representation was made before the Board totake assistance of a legal practitioner, nothing is found indicatingwhether such a representation was considered by the Board at all.Under such circumstances, the decision of the Apex Court, if applied,would also make the order under challenge defective. For all theabove reasons, the order under challenge has got to be set aside andit is accordingly set aside. 13. For all the above reasons adduced which in the consideredopinion of the court would be sufficient to set aside the order ofdetention. 14. Accordingly, the Habeas Corpus Petition is allowed, settingaside the detention order passed by the first respondent inG.O.No.S.R.1/747-4/2008 dated 18.11.2008 , The detenu, namely, SadhikBasha, 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.RegistrarVJYTo1.THE SECRETARY TO GOVERNMENT,PUBLIC (SC) DEPARTMENT, FORT ST.GEORGE,CHENNAI 600 009.2. THE SECRETARY TO GOVERNMENT,THE UNION OF INDIAMINISTRY OF FINANCE, DEPT., OF REVENUE,(COFEPOSA-UNIT),NEW DELHI. https://hcservices.ecourts.gov.in/hcservices/

3. THE SUPERINTENDENT OF CENTRAL PRISON,CENTRAL PRISON, PUZHAL,CHENNAI 600 066.3. THE SUPERINTENDENT OF CENTRALPRISON, PUZHAL, CHENNAI 664. THE JOINT SECRETARY TO GOVTPUBLIC (LAW AND ORDER)FORT ST.GEORGE, CHENNAI -95.THE PUBLIC PROSECUTOR,HIGH COURT, MADRAS.1 cc To Mr.S.Thirumavalavan, Advocate, SR.371761 cc To Mr.S.Palanikumar, Advocate, SR.36244 HCP.NO.1939 OF 2008LA(CO)SRA(27/08/2009)