CORAMTHE HONOURABLE MR v. The Secretary to Government Public (SC) Department Government of Tamil Nadu Secretariat

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 6-8-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANHCP No.296 of 2009V.Chinnavanni.. Petitionervs1.The Secretary to Government Public (SC) Department Government of Tamil Nadu Secretariat, Chennai 600 009.2.The Secretary to Government of India Ministry of Finance Department of Revenue (COFEPOSA UNIT) Central Economic IntelligenceBureau Janpath Bhavan, 'B' Wing 6th Floor, Janpath, New Delhi 110 001... Respondents Habeas corpus petition filed under Article 226 of theConstitution of India praying for a writ of habeas corpus calling forthe records relating to the detention order G.O.No.SR.1/099-4/2009dated 24.2.2009 issued under Sec.3(1)(i) of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, 1974(Central Act 52 of 1974) by the Secretary to Government, Public (SC)Department, Secretariat, Chennai 600 009, the first respondentherein, and set aside the same and direct the respondents to producethe body of the detenu V.Chinnavanni, S/o. Vannimuthu, aged about 51years, the detenu, now confined in Central Prison, Puzhal, Chennai,before this Court and set him at liberty forthwith.For Petitioner: Mr.M.Singaravelan for Mr.R.M.ChandrababuFor Respondents: Mr.N.R.Elango Additional PublicProsecutor for R1 Mr.S.Udayakumar Senior Standing Counselfor R2 https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by M.CHOCKALINGAM, J.)This habeas corpus petition challenges an order of detentionmade by the first respondent on 24.2.2009, whereby the petitionerChinnavanni was ordered to be detained under Sec.3(1)(i) of COFEPOSAAct, 1974.2.The facts and circumstances which led the first respondent tomake such an order of detention can be stated thus:On 17.1.2009, the detenu, holder of Indian Passport issued on11.12.2008, and two cancelled Indian Passports issued on 4.9.2007 and28.11.2003 respectively, all issued at Tiruchirapalli, and bound forSingapore by Air India flight along with two checked-in baggagesalong with a hand baggage, was intercepted while proceeding towardsthe security check after immigration clearance on entertainingsuspicion that he may be carrying foreign currencies or Indiancurrencies either on the person or in the baggage. When questioned bythe authorities, the detenu replied in negative. The authority notsatisfied with the same, opened and examined the baggage in thepresence of two witnesses. While doing so, nine bowls contained inone of the checked-in baggages were found to contain 3900 IndianCurrency notes of 500 rupees denomination in 52 bundles amounting toRs.19,50,000/- in total. They were recovered under a cover ofmahazar. In the other checked-in baggage and the hand baggage, noincriminating materials are found. On personal search, Rs.25,000/-Indian currency of Rs.500 denomination and Singapore Dollars 650 wasrecovered under a cover of mahazar. When questioned, it was answeredby the detenu that no declaration was made. Since it was inviolation of the provisions of Foreign Exchange Management Act, acase was actually registered, and a statement was recorded. He wasarrested on 18.1.2009 and produced before the Additional ChiefMetropolitan Magistrate, E.O.II, Egmore. He was remanded to judicialcustody till 30.1.2009. The period of remand was also extended upto12.2.2009 and on 17.2.2009, he was ordered to be produced on25.2.2009. 3.Pending the same, the sponsoring authority made therecommendation that he attempted to smuggle the said currencies outof India for monetary benefits, and hence an order of detention hasgot to be made against him. On scrutiny of the materials, the firstrespondent was of the opinion and also recorded subjectivesatisfaction that it was a fit case where the provisions of theCOFEPOSA Act have got to be invoked, and an order of detention bepassed, and accordingly made the impugned order. Hence this petitionbefore this Court.4.Assailing the order under challenge, the learned Counsel forthe petitioner took the Court to paragraph (iv) in page 4 of theimpugned order which reads that the period of remand has beenextended upto 12.2.2009, and on 17.2.2009, the A.C.M.M., E.O.IICourt, Chennai, has ordered as "the accused was not produced throughV.C.S. due to mechanical defect in the T.V. Room. Hence he isordered to be produced on 25.2.2009." https://hcservices.ecourts.gov.in/hcservices/

5.The learned Counsel would further submit that as could be seenfrom the order, he was actually not under judicial remand between12.2.2009 and 17.2.2009; that further on the adjourned date namely17.2.2009, also, he was neither produced before the Court nor throughVCS due to mechanical defect in the TV room, and hence he was orderedto be produced on 25.2.2009; that under the circumstances, there wasno valid remand; but the authority has stated in paragraph 5 of theorder that he was a remand prisoner and his remand was for the periodspecified in law, and thus it would be quite clear that whileactually there was no remand extension, it has to be taken that hewas not under judicial custody; that under the circumstances, theobservation by the authority that he was a remand prisoner during theperiod was without any application of mind, and it would affect theorder.6.Added further the learned Counsel that he moved an applicationor bail; that actually the bail application was pending during therelevant time; that the observation of the authority that he would bereleased on statutory bail thereafter, and further the Government wasalso aware that he had filed a bail application before the PrincipalSessions Court, and it was pending disposal, and there was likelihoodof the detenu being released on bail, and thus it would be quiteclear that while the bail application filed by him was actuallypending on the day before the Principal Sessions Court, theobservation that there was likelihood of his being released on bailwas without any material whatsoever, and the detaining authoritycould not apprehend that an order would be passed by the Court ofSession when the detention order came to be passed. 7.The learned Counsel would further add that in the instantcase, though he was found to have travelled on 19 occasions, even asper the department, on no one occasion he has attempted to smuggle;but it was only stray occasion. The learned Counsel relying on thedecision of the Supreme Court reported in 2009 (2) CRIMES 49 (SC)(POOJA BATRA V. UNION OF INDIA AND OTHERS), would submit that onlyone occasion is found; that it cannot form basis for passing an orderof detention; and that no material was available to indicate that hewould be further indulging in such activities in future.8.As the last ground, the learned Counsel would submit that ascould be seen from the materials, his passports were actually placedin the hands of the Metropolitan Magistrate's Court; but thepassports was not actually seized from the detenu by way of amahazar; that even the mahazar prepared on the day would clearlyindicate that nothing else was recovered from his baggage or from theperson; that in the absence of any mahazar, how the department cameinto possession of one passport and two cancelled passports and howthey were produced before the Court remained unknown; that under thecircumstances the detaining authority should have called for aclarification how the department came into possession of thosepassports and produced before the Court; that in the case on handsuch a clarification has not actually been obtained at all, and forall the above reasons, the order under challenge has become infirmand has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/

9.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 10.Under the above stated circumstances, the order underchallenge came to be made on 24.2.2009. So far as the first groundthat the order would clearly read that on 12.2.2009 he was actuallyremanded, and on 17.2.2009, he was not produced sine there was amechanical defect in the TV room, and hence he was directed to beproduced on 25.2.2009, is concerned, paragraph iv) of the order readsas follows:"iv) You, Thiru V.Chinnavanni, were arrested on 18.01.2009and produced before the Additional Chief MetropolitanMagistrate, E.O.II Court, Egmore, Chennai, who has remandedyou to judicial custody till 30.01.2009. The period ofRemand has been extended upto 12.02.2009 and on 17.2.2009,the A.C.M.M., E.O.II Court, Chennai has ordered as "theAccused was not produced through V.C.S. due to mechanicaldefect in the T.V. Room. Hence, he is ordered to beproduced on 25.2.2009".Thus it would be quite clear that between the above interval, therewas no valid remand order passed by the Court. 11.As rightly contended by the learned Counsel for thepetitioner, in paragraph 5 of the impugned order, the detenu wasshown as a remand prisoner during the relevant time. In reply, thelearned Additional Public Prosecutor brought to the notice of theCourt a Full Bench decision of this Court reported in 2007 (5) CTC657 (G.KALAISELVI V. STATE OF TAMIL NADU AND ANOTHER), wherein it hasbeen held thus:"15.The question as to whether such a person has beenvalidly remanded to custody or otherwise is not the concernof the Detaining Authority. If a person is actually incustody and the Detaining Authority is under the impressionthat such person is not in custody but is at large and anorder of detention is passed, obviously such detentionorder is vitiated because the Detaining Authority ignores avital aspect, namely the question as to whether the personis at large or whether the person is in custody. When aperson is in custody, the Detaining Authority may not thinkof passing any order of detention, unless the DetainingAuthority comes to the conclusion that there is imminentpossibility of being released on bail or even otherwise."12.This Court is of the considered opinion that the abovedecision rendered by the Full Bench of this Court would be applicableto the present facts of the case. It is true that in the instantcase, during the relevant period, there was no remand extension madeby the Metropolitan Magistrate. But the factum of custody could notbe disputed. As far as the detaining authority is concerned, he neednot go into the validity or otherwise of the remand extension duringthe relevant time. What was to be taken up for consideration by the https://hcservices.ecourts.gov.in/hcservices/ detaining authority was whether he was under actual custody or notduring the relevant period. Thus the dicta by the Full Bench of thisCourt has got to be squarely applied to the present facts of thecase. Under the circumstances, the first contention put forth by thelearned Counsel for the petitioner has got to be rejected, andaccordingly it is rejected.13.Insofar as the second ground that the bail application filedby the petitioner before the Sessions Court dated 16.2.2009, wasactually pending on the day when the order came to be passed on24.2.2009, from the order it would be quite evident that theauthority had got the knowledge that the bail application was pendingbefore the Principal Sessions Court when the order came to be passed.However, the authority has stated that there was likelihood of thedetenu being released on bail. It can be well stated that it wasonly an expression of the impression which passed in the mind of theauthority. Once the application for bail was pending in the hands ofthe Court, the authority cannot say that there was likelihood of thedetenu being released on bail. It can even be stated that thisobservation was not only without any material, but also inanticipation of an order that was to be passed by the Court ofSession. Under the circumstances, this observation was without anymaterial whatsoever. Therefore, on that ground, the order wouldbecome infirm.14.Insofar as the third ground that he made 19 visits and at nopoint of time, he attempted to smuggle, and this was the only oneoccasion, and under the circumstances it cannot be stated to beforming any basis for passing an order of detention, this Court isunable to agree with the contention put forth by the learned Counselfor the petitioner. Even if it is only one incident, if there arecircumstances indicating that he would indulge in such activities, anorder of detention cannot be passed. At this juncture, it would bemore apt and appropriate to reproduce the decision of the Apex Courtreported in 2009 (2) CRIMES 49 (SC) (POOJA BATRA V. UNION OF INDIAAND OTHERS) as follows:"12.As already discussed, even based on one incident theDetaining Authority is free to take appropriate actionincluding detaining him under COFEPOSA Act. The DetainingAuthority has referred to the violation in respect ofimportable goods covered under Bill of Entry No.589144 dated25.04.2007. In an appropriate case, an inference couldlegitimately be drawn even from a single incident ofsmuggling that the person may indulge in smugglingactivities, however, for that purpose antecedents and natureof the activities already carried out by a person arerequired to be taken into consideration for reachingjustifiable satisfaction that the person was engaged insmuggling and that with a view to prevent, it was necessaryto detain him. If there is no adequate material forarriving at such a conclusion based on solitary incident theCourt is required and is bound to protect him in view of thepersonal liberty which is guaranteed under the Constitutionof India." https://hcservices.ecourts.gov.in/hcservices/

15.It is further to be pointed out that in the instant case, itwas claimed by the department that he was an agriculturist, and hehas made 19 visits to Singapore and Malaysia as could be seen fromthe materials. All would clearly indicate that though it was onlyone incident, he was found to have attempted to smuggle. Once he hasbeen often visiting abroad, following the decision of the Apex Courtstated supra, the Court has to reject the contention put forth by thelearned Counsel. Accordingly, it is rejected.16.As far as the last ground is concerned, this Court is able tosee force in the same. At the time when he was intercepted, he wasfound in possession of one passport and two other cancelled passportswhich were issued at Tiruchirapalli. Now it is not in dispute thatthe passports have actually been placed before the Court and are inthe custody of the Court. The learned Counsel took the Court to themahazar, which was prepared at the time of intervention. The samewould clearly reveal that except the currencies nothing was actuallyrecovered either from the baggage or from the person. Under thecircumstances, in the absence of any material or mahazar to indicatethe possession of the passports was originally with the authority andthereafter they were produced before the Court, naturally one wouldexpect the detaining authority to call for a clarification how theycame into possession of the passports. Now the contention put forthby the learned Additional Public Prosecutor that it was a relied ondocument, and it has been clearly stated that those passports wereproduced by the detenu, and thus the department came into possessioncannot be countenanced. It is true that in the booklet, it isspecifically stated that those passports were actually produced bythe detenu. But this Court is of the considered opinion that mereaverment therein cannot be taken as a satisfactory answer whileadmittedly those passports were originally in the custody of thedetenu. In the absence of any mahazar or material, it could not havecome into possession of the department; but the mahazar prepared bythe department would clearly indicate that none else was recoveredfrom him, and he does not also speak about the mahazar. Under thecircumstances, it is for the department to explain how thesepassports originally with the detenu came into custody of thedepartment and produced before the Court. It is not the case of thedepartment that they were produced by the detenu directly before theCourt. It has actually been recovered by the department and producedbefore the Court. Under the circumstances, a duty is cast upon thedepartment to say how it got the custody of the three passports forwhich no satisfactory reply is available. In such circumstances aclarification should have been called for before passing the impugnedorder, but not done so. Out of the four grounds, though two groundswere negatived, in respect of the other two grounds this Court issatisfied that the order of detention suffers. 17.Accordingly, this habeas corpus petition is allowed settingaside the order of the first respondent. The petitioner detenu isdirected to be released forthwith unless his presence is required inconnection with any other case.Sd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsvTo:1.The Secretary to Government Public (SC) Department Government of Tamil Nadu Secretariat, Chennai 600 009.2.The Secretary to Government of India Ministry of Finance Department of Revenue (COFEPOSA UNIT) Central Economic Intelligence Bureau Janpath Bhavan, 'B' Wing 6th Floor, Janpath, New Delhi 110 001.3.The Superintendent, Central Prison, Puzhal, Chennai.4.The Joint Secretary to Government Public (Law & Order) Fort.St.George, Chennai.5.The Public Prosecutor, High Court, Madras.+ 1 cc to Mr.S.Udayakumar,Advocate,SR.36400+ 1 cc to R.M.Chandrababu,Advocate,SR.36251HCP No.296 of 2009MBS(CO)EM/20.8.09