Elizabeth Rani v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:17.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.No.2088 of 2008Elizabeth Rani ...PetitionerVs.1. The State of Tamil Nadu, rep. by the Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009.2. The Union of India, rep. by the Secretary to Government, Ministry of Finance, Department of Revenue (COFEPOSA Unit), Central Economic Intelligence Bureau, Janpath Bhavan, VI Floor, 'B' Wing, Janpath, New Delhi – 110 001.3. The Superintendent of Central Prision, Central Prison, Puzhal, Chennai...RespondentsPetition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Habeas Corpus to call for therecords relating to the detention order in G.O.SR.1/683-3/08 Public(SC) Dept. dated 18.11.2008 passed by the first respondent and quashthe same and direct the respondents to produce the body of the personof the detenu, V.John Karunakaran son of Viagulraj now detained inthe Central Prison, Chennai as COFEPOSA detenu before this HonourableCourt and set him at liberty.For petitioner :Mr.Habibullah Basha, Senior counsel for Mr.M.M.K.AlifudeenFor Respondents: Mr.N.R.Elango, A.P.P. for R1 & R3 Mr.T.Chandrasekaran,SCGSC for R2. https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by M.CHOCKALINGAM,J)Challenge is made to an order of the first respondent dated18.11.2008 whereby the detenu one John Karunakaran was ordered to bedetained under the provisions of Section 3(1)(i) of the COFEPOSA Act,1974.2. The affidavit filed in support of the petition along with thegrounds of attack and also all the materials placed in particularthe order under challenge are perused. The Court heard the learnedSenior counsel appearing for the petitioner and also the learnedcounsel appearing for the respondents.3. The short facts which led the first respondent to make theorder under challenge can be stated as follows:On 16.7.2008, the said detenu, holders of Indian Passport issuedat Chennai and having the residential address at Madras arrived toChennai Airport by Singapore Airlines Flight from Hongkong. TheCustoms officials, entertaining suspicion, seized and detained oneSwiss made Jaeger Le-Coultre-Coultre Wrist Watch and one OmegaConstellations Wrist watch since he has declared the value ofthe goods brought by him as Rs.1,800/- in the CustomsDeclaration Card under Detention Receipt (DR) No.58739 dated16.7.2008 for the purpose of valuation. On 28.7.2008, thewatches which were retrieved from the Airport Warehouse on23.7.2008 for the purpose of valuation in the market and re-lodgedin the Airport Warehouse on the same day with Seal No.31 was openedin the presence of witnesses for valuation by Thiru. Gurinder Singhof M/s. JLC Boutique, Oberoi Hotel at New Delhi, who is theauthorised importer in India for M/s. Jaeger Le Caultre and he hasinformed that the above said JLC appears to be genuine one, however,has to be verified and confirmed with the principals of M/s. JaegerLe Coultre. Thereupon, the two watches were resealed and handed tothe Airport Warehouse. In the letter dated 14.8.2008, he has informedthe Joint Commissioner of Customs, Chennai that the import priceof Jaeger Le-Coultre – Coultre wrist watch was USD 91,746.72.Accordingly, the value of the said watch was taken asRs.39,64,458/- (CIF). The value of Omega Constellation watch wasfixed at Rs.220/- (CIF). On 25.9.2008, the sealed khaki cloth pouchcontaining one Swiss made Jaeger Le-Coultre-Coultre Wrist watch andone Omega Constellation Wrist watch was opened by the IntelligenceOfficer of Air Customs in the presence of independent witnesses andit was found that there was not only non-declaration of the watchesbut also mis-declaration of the total value of goods brought by himin the Customs Declaration card for the purpose of evading customsduty. Both the watches were seized under a cover of mahazar and https://hcservices.ecourts.gov.in/hcservices/ they were found to be liable for confiscation under the Customs Act.Accordingly, statement of the detenu was recorded and both thewatches were seized under a cover of mahazar and he was also arrestas per the provisions of the Customs Act and was also produced beforethe Court. He moved bail application on 26.9.2008 and conditionalbail was ordered and thereafter, he made a representation on1.10.2008 and the same was replied with negative contentions by thedepartment and thereafter, recommendation was made by the CustomsAuthorities and the same was placed before the State Government. TheState Government, after being satisfied that it is a fit case wherean order of detention has got to be made in order to prevent him fromindulging in such activities in future, passed the order ofdetention. All the materials were placed before the Advisory Boardand on scrutiny it was affirmed by the Board. Under suchcircumstances, this petition has arisen before this Court challengingthe same. 4. Advancing the arguments on behalf of the petitioner, learnedsenior counsel raised the following points. (a) When the watches were actually seized on 23.7.2008immediately on the same day, they were valued by M/s. P ORR & Sons(P) Ltd., a reputed watch company in Chennai and the first watch wasvalued at Rs.1,40,000/- and the second watch was found to be aduplicate one and the same was valued at Rs.500/-. While the factremains so, thereafter the valuation shown as Rs.39,63,458/- wereactually got from Thiru. Gurinder Singh of M/s. JLC Boutique, OberoiHotel, New Delhi, through communication. At this juncture, it ispertinent to point out that according to the learned senior counsel,the valuation of both the watches made by M/s.P.ORR & Sons(P)Ltd. as could be seen from the mahazar as Rs.1,40,000/- and Rs.500/-respectively, should have been brought to the notice of thedetaining authority. The grounds of detention does not reflect thisvalue of Rs.1,40,000/- given by M/s. P.ORR & Sons (P) Ltd. but itwould reflect only the value of Rs.39,53,458/- , i.e., the valuationmade at Delhi. There is vide difference between the two valuationswhich should have been brought to the notice of the detainingauthority and the discrepancies in the valuation of the watches oughtto have been clarified by the detaining authority as to how ithappened by the sponsoring authority but failed to do so. Eitherthe sponsoring authority should have clarified or on scrutiny, thedetaining authority should have called for clarification but theyhave not done so. Under such circumstances, it would make the orderdefective. (b) The learned counsel would further add, it is not incontroversy that the show cause notice dated 19.12.2008 was given tohim after passing of the order and a detailed reply by the detenu wasgiven on 6.1.2009 through the counsel denying the allegation thereinbut the same was not placed before the Advisory Board. When we look https://hcservices.ecourts.gov.in/hcservices/ into the counter filed by the State, it could be seen that since theshow cause and the reply followed on 6.1.2009 were all madesubsequent to the passing of the detention order and it could nothave any relevance. They are not the necessary documents which couldbe placed before the Advisory Board. This contention putforth by theState has got to be discountenanced. In support of the contention,the learned senior counsel for the petitioner relied on the decisionof the Division Bench of this Court reported in 2000 (III) CTC 97(Rajeswari v. Joint Secretary to Government) and pointing toparagraph 23 of the said decision would submit that in a case likethis when show cause notice is given and when it is followed by areply, though those documents come into existence subsequent to thepassing of the detention order, they are vital and relevant documentsand failure on the part of the detaining authority to place the samebefore the Advisory Board, would make the order of detention illegal.(c) Thirdly, the learned counsel would further add, it is truethat the department relied on the statement alleged to have beengiven by the detenu but there was a letter of retraction given on11.11.2008 to the Sponsoring authority. The detaining authoritypassed the order on 18.11.2008. When there was a letter ofretraction containing vital materials, the sponsoring authority isduty bound to place the same before the detaining authority. Thedetaining authority has to scrutinise the same before passing theorder. In the counter affidavit it is averred that the letter ofretraction was received subsequent to the passing of order. But thisstatement is not correct since the acknowledgement received by theauthorities shows that it was received on 12.11.2008 itself. If theletter of retraction was received on 12.11.2008, it would clearlymean that it was before passing of the order of detention dated18.11.2008. Under such circumstances, it should have been placedbefore the authority but not done so. For this propose, the learnedcounsel relied on the decision of the Apex Court reported in 1999 SCC(Crl.) 1469 (Ahamed Nassar v. State of Tamilnadu). On these grounds,the order of detention has to be declared as illegal and it has gotto be set aside.5. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.6. It is not in controversy that the order of detention dated18.11.2008 came to be passed under the facts and circumstancesnarrated above. The gist of the case of the department which wasplaced before the sponsoring authority was that the detenu was foundin possession of two watches described as Swiss made Jaeger Le-Coultre-Coultre Wrist Watch and one Omega Constellations Wrist watch.Both these watches, on suspicion, were kept in custody of theCustoms Warehouse under sealed cover and thereafter, they were takenfor valuation. They were actually valued by Thiru.Gurinder Sing of https://hcservices.ecourts.gov.in/hcservices/ M/s. JLC Boutique, Oberoi Hotel, New Delhi and it was valued atRs.39,63,458/- for the first watch and for the second watch, it wasvalued at Rs.220/-. The detenu has given mis-declaration of the totalvalue of the goods in the customs declaration card and has committedsmuggling activities. He was arrested under the provisions of CustomsAct and was produced before the Court and he was also grantedconditional bail. Under such circumstances, the sponsoring authorityplaced before the detaining authority that he has indulged insmuggling activities and in order to prevent him from indulging insuch activities in future the order of detention have got to be madeand after recording its satisfaction that it was a fit case where theprovisions of the enactment of COFEPOSA Act was to be invoked inorder to prevent him from indulging in smuggling activities, theState Government has made the order of detention under the provisionsof COFEPOSA Act. Thus, this petition has arisen before this Court.7. The entire materials are scrutinised. The first and foremostpoint which was brought to the notice of the Court by the learnedSenior counsel is that there is discrepancy in the value of thewatches which was actually found and it is also available under thematerials and duty was cast upon the detaining authority to call forclarification in this regard. It has to be pointed out that both thewatches were actually seized and kept under a sealed cover with thedepartment on 23.7.2008. From the mahazar at page 1 of the booklet,it could be seen that the watches were valued at M/s. PORR & Sons,Madras, a reputed watch company and the value of the first watch wasgiven at Rs.1,40,000/- and the second one which was found to beduplicate, was valued at Rs.500/- but subsequently, for thesecond time both the watches were sent to Thiru.Gurinder Sing, theManaging Director of M/s. JLC Boutique, Obero Hotel , New Delhi andhe has given a letter as found in page 85 of the booklet. The 3rdparagraph of said letter dated 25.9.2008 in page 85 of the bookletreads as follows, "The manufacturer confirms the time piecevisualized by myself at your office (# 32/200 Minute RepeaterPlatinum) to have been sold now for over a period of two years andare unable to trace its whereabouts, thus estimate that perhaps thesame piece was sold and resold during this period."8. From the reading of this part of the letter, it would indicatethat the valuation of the watch is found as Rs.39,63,458/- and it wasactually confirmed by the manufacturer but the name of themanufacturer was not found therein and how the value was arrived atwas not mentioned. But what was the value given is Rs.39,63,458/- andthe same was also relied on.Paragraph 5 of the said letter reads asfollows, "The retail for this time piece in India INR 90,31,308/- andalso if their boutique operators do import the same, it would beinvoiced at a price of USD 91,746.72." So far as this value ofRs.39,63,458/- is concerned, how it was arrived at was not mentionedtherein, while the mahazar would indicate that "..the above saidWatch was retrieved from the Airport Warehouse, in the presence of https://hcservices.ecourts.gov.in/hcservices/ the passenger on 23.07.2008, for the purpose of valuation in themarket, that the second mentioned Watch was identified to beduplicate and approximately valued at Rs.500/- and the firstmentioned watch was identified as Original and approximately valuedat Rs.1,40,000/- by M/s. P.ORR & Sons (P) Ltd., Chennai."9. From the very reading of the mahazar and the letter at page 1and page 85, the discrepancies in the price was found to be high.When such discrepancies were found, either the sponsoring authorityshould have explained how this discrepancy occurred or on scrutiny,the detaining authority should have called for explanation. It isneedless to say that it would certainly affect the detention order. 10. So far as the second contention that there was a show causenotice which was followed by a reply were not actually placed beforethe Advisory Board is concerned, it is not disputed by the State thatactually the show cause was issued and following the same, a detailedreply was given by the detenu on 6.1.2009 but they were not actuallyplaced before the Advisory Board. Paragraph 3 of the counter filed bythe State reads as follows:" The show cause notice was issued on 19.12.2008 i.e,after the issue of the detaining order and hence not reliedupon for passing detention order. The Show Cause Notice ispart and parcel of the adjudication proceedings which isquasi-judicial in nature and it issued without prejudice tothe action under the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 (Central Act52 of 1974). the proposals in the show Cause Notice nowhere deviates from the sponsoring authority's stand beforethe detaining authority that the watches are liable forconfiscation and do not interfere with the detention order.During the State Advisory Board proceedings, it was open tothe detenu to place on record any material in his supportincluding Show Cause Notice dated 19.12.2008 and his replydated 06.01.2009. The fact that the Honourable StateAdvisory Board also did not call for any furtherinformation from the Government as provided under clause ©of Section 8 of the Conservation of Foreign Exchange andprevention of Smuggling Activities Act, 19074 shows thatthe Honourable State Advisory Board was convinced of theactions against the detenu. Therefore, it may be seen thatthe contentions of the petitioner are frivolous in nature.Hence, the allegations are denied."11. A reading of the above paragraph of the counter would clearlyindicate that according to the State, a show cause notice was sentand a reply was received and they need not be placed before theAdvisory Board in fact they were actually not placed also. As far as https://hcservices.ecourts.gov.in/hcservices/ the contention that whether it is necessary to place the show causenotice and the reply sent by the detenu or not, this Court hadoccasion to consider this fact in the judgement reported in 2000(III) CTC 97 (Rajeswari v. Joint Secretary to Government) in HCP.No. 1444 of 1999 wherein Their Lordships have held as follows:"In all these cases, the principle isaccepted that even inspite of the documentscoming into being after the passing of the orderof detention, if such documents are relevant andmaterial to the subject of detention, thedetaining Authority is under a duty to put thosedocuments before the advisory Board. In coming tothis conclusion initially the Division Bench inJesudasan's case, 1989 Crl.L.J. 637, had reliedupon the celebrated judgment of this Court inVellanai Pandian v. Collector & District,Magistrate, Tiruhklvkli, 1984 Crl.L.J. 68. Thetwo judgments of the Division Bench of this courtare binding on us and therefore, it would have tobe held that in not placing these relevant andmaterial documents before the Advisory Boardthere is a breach of duty on the part of thedetaining authority and the subsequent detentionhas thus become illegal."This court is unable to see any reason to deviate from this decisiontaken by this Court following the earlier judgment. It is a casewhere those documents have been considered to be relevant andmaterial. Though the documents came into existence subsequent to thepassing of the order of detention, so long as it is considered asrelevant and material, the authorities are duty bound to placethose documents before the Advisory Board but they have not done so.Under such circumstances, the detention order has got to be declaredillegal.12. Lastly, it is not in controversy that there was a retractionletter made on 11.11.2008 and this has not been placed before theDetaining Authority and a reply to that, as could be seen from thecounter is that, the order of detention was passed on 18.11.2008 butthe retraction letter has been received subsequently and hence, itcould not be placed before the Detaining authority, cannot beaccepted in view of the acknowledgement card now placed before theCourt by the petitioner side. A perusal of the acknowledgment cardwould reveal that it was actually received by the Authority on12.11.2008 itself whereas the order of detention came to be passedon 18.11.2008. Further, there was delay of four months in passing thedetention order. When the sponsoring authority placed its material,wherever delay is caused, the Court can go into the question as to https://hcservices.ecourts.gov.in/hcservices/ whether the delay was due to administrative reason and the delaycaused was reasonable or unreasonable. . There is no nexus orproximity between the alleged seizure and the date of passing of thedetention order. The Court has to comment that unreasonable delay,among other reasons would also suffice to set aside the order. Forall the reasons stated above, the Court has to necessarily set asidethe order of detention as illegal. 13. 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. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvsiTo1. The Secretary to the Government, Public (SC) Department, Fort St.George, Chennai – 600 009.2. The Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), Central Economic Intelligence Bureau, Janpath Bhavan, Vi Floor, 'B'Wing, Janpath, New Delhi – 110 001.3.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.5.The Public Prosecutor, High Court, Madras.1 cc To Mr.M.M.K.Alifudeen, Advocate, SR.32065HCP.No.2088 of 2008VSV(CO)SRA(29/7/2009)