Kaja Mohideen v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 28.04.2006Coram:-The Hon’ble Mr. Justice P.SATHASIVAMandThe Hon’ble Mr. Justice J.A.K.SAMPATHKUMARHabeas Corpus Petition Nos.5 of 2006Kaja Mohideen... Petitionervs.1. State of Tamilnadu,rep. by Secretary to Govt.,Public (SC) Department,Fort St. George, Chennai-9.2. Union of India, rep. by Secretary to Govt.,Ministry of Finance,Department of Revenue,COFEPOSA Unit, Janapath Bhawan,'B' Wing, 6th Floor,Janapath, New Delhi 110 001.... RespondentsPetition under Article 226 of the Constitution of India for theissuance of a Writ of Habeas Corpus to call for the records of the1st respondent made in S.R.1/1061-3/2005, dated 8.12.2005, andquash the same, direct the respondents to produce detenu KuthusRowthar Manzoor Ali, son of Kaja Mohideen, now detained in CentralPrison, Chennai, under the provisions of COFEPOSA Act and set himat liberty.For Petitioner: Mr.B.Kumar, Senior Counselfor Mr.R.LoganathanFor Respondent-1: Mr.Abudukumar Rajarathinam,Government Advocate (Crl. Side)For Respondent-2: Mr.P.Kumaresan, AdditionalCentral Govt. Standing Counsel https://hcservices.ecourts.gov.in/hcservices/ O R D E RP. SATHASIVAM, J. The petitioner herein, who is the father of the detenu byname Kuthus Rawther Mansor Ali, challenges the impugned order ofdetention, dated 08.12.2005, detaining his son under theConservation of Foreign Exchange and Prevention of SmugglingActivities Act, 1974 (Central Act 52 of 1974).2. Heard Mr.B.Kumar, learned Senior Counsel for thepetitioner; Mr.Abudukumar Rajarathinam, learned Government Advocatefor R-1; and Mr.P.Kumaresan, learned Additional Central GovernmentStanding Counsel for R-2.3. After taking us through the grounds of detention andall other connected materials, Mr.B.Kumar, learned Senior Counsel,at the foremost, submitted that, while passing the impugned orderof detention, reliance has been made on the documents enclosed atpage Nos.60 to 62 of the paper book, which have no relevance to thedetention order passed against the detenu, therefore, it isapparent that extraneous factors have been taken intoconsideration, thereby, the subjective satisfaction arrived at bythe Detaining Authority is vitiated. He also contended that even though this aspect waspointed out in the representation, the same has not been properlyconsidered by the Detaining Authority, thus, the consideration ofthe representation stands vitiated. He further contended that though the detenu sent adetailed representation addressed to the superior officer in theCustoms Department at New Delhi on 28.11.2005, and the saidCommunication, sent on behalf of the detenu, had been received bythe said authority; the same had not been forwarded to theDetaining Authority, who passed the detention order on 08.12.2005.According to him, a vital document has not been placed before theDetaining Authority, hence, the subjective satisfaction isvitiated. 4. Learned counsel appearing for both the respondents, byplacing Files and other materials, met all the contentions raisedby the learned Senior Counsel.5. Coming to the first contention, it is the grievance ofthe petitioner that the document at page No.60 of the Booklet hasno relevance to the detention order, hence, the detenu got confusedand unable to make an effective representation. In the light of thesaid contention, we verified page No.60 of the paper book, which is'General Declaration'. https://hcservices.ecourts.gov.in/hcservices/

6. Mr.Abudukumar Rajarathinam, learned GovernmentAdvocate appearing for the first respondent, has submitted that thedocuments at page Nos.60 to 62, supplied along with grounds ofdetention, are relevant documents as they form part of the FlightManifest, containing the names of the passengers including thedetenu, who travelled in the subject flight from Singapore toChennai on that day. As rightly pointed out, the document at pageNo.60 has to be read along with the list of passengers travelled inthe flight (available at page No.64 of the paper book). Itcontains the names of Captain V.K.Bhalla, Captain K.S.Gujral, whopiloted the flight and other crew members, viz., air hostesses andflight pursers. The said names are of responsible officials ofIndian Airlines, who performed their work for the internationalflight IC 558 on 12.11.2005. Page No.64 of the paper book containsthe list of passengers, who travelled in I.C.558 on 12.11.2005 fromSingapore to Chennai. Name of the detenu (Mansoor Ali) finds placein the said list. In such circumstances, we are satisfied that thedocuments available at page Nos.60 to 62 are not irrelevant asclaimed by the learned Senior Counsel for the petitioner, on theother hand, the same are relevant and rightly enclosed along withthe grounds of detention. Accordingly, we reject the saidcontention. 7. The next contention is that the pre-detentionrepresentation, dated 28.11.2005, being a vital document, ought tohave been placed before the Advisory Board and the Government.According to the learned Senior Counsel, absolutely there is noreference to the said document in the detention order. 8. In the counter affidavit filed by the AdditionalSecretary to Government, Public (Law and Order) Department,Secretariat, Chennai-9, on behalf of the first respondent, it isstated that the detention order was passed on 08.12.2005 by theState Government, whereas, the representation, dated 28.11.2005,sent by the detenu's father, was received in the SponsoringAuthority's Office on 09.12.2005, ie., after passing of thedetention order. It is further stated that subsequently, the saidrepresentation, dated 28.11.2005, was considered by the FinanceMinistry and rejected vide F.No.686/61/2005-Cus.VIII, dated13.12.2005. The said order shows that no case was foisted on thedetenu and the recovery of the contraband in the presence ofindependent witnesses and the voluntary statement given by thedetenu all bear testimony to the smuggling activity and the offencecommitted by the detenu. 9. In the counter affidavit filed on behalf of Union ofIndia, ie., second respondent, it is stated that the letter, dated28.11.2005, in Tamil Language, made by the petitioner, addressed tothe Revenue Secretary, Central Secretariat, Finance Ministry,Central Economic Intelligence Bureau, B Division, 6th Floor, Janpath https://hcservices.ecourts.gov.in/hcservices/ Bhawan, New Delhi, was received in the COFEPOSA Unit of theMinistry of Finance, Department of Revenue, New Delhi, on01.12.2005. In the said letter, the petitioner herein claimed thata false case has been foisted on his son who was arrested withoutany proper reason. In the counter, it has been explained that,after knowing the contents of the said letter, which were in Tamillanguage and subsequent enquires about the Sponsoring Authority,the letter was sent to the Joint Commissioner of Customs, COFEPOSAAir, Chennai Airport, Chennai, on 07.12.2005 for furnishingparawise comments and English translation of the letter and he wasalso requested that a copy of the letter may be sent to theDetaining Authority in case any proposal for detention under theCOFEPOSA Act is envisaged. The counter further shows that the saidletter was received by the joint Commissioner of Customs, ChennaiAirport, on 09.12.2005, and after receiving the parawise commentson the letter and English translation thereof on 10.12.2005, thecase file was submitted to the Special Secretary and DirectorGeneral, Central Economic Intelligence Bureau, Ministry of Finance,Department of Revenue, New Delhi, on 12.12.2005. The said letterwas considered by the Special Secretary and Director General,Central Economic Intelligence Bureau, Ministry of Finance,Department of Revenue, New Delhi, on behalf of the CentralGovernment and the same was rejected by him on 13.12.2005 as devoidof merits. The detenu as well as the petitioner herein wasintimated about the rejection of the letter dated 28.11.2005 vidememorandum dated 13.12.2005. The detenu acknowledged the receiptof the Memorandum dated 13.12.2005 on 16.12.2005. It is alsoexplained that the said letter was received by the SponsoringAuthority on 09.12.2005, in the meantime, the Detention Order wasissued by the Government of Tamil Nadu on 08.12.2005 and theCentral Government came to know about the issue of Detention Orderagainst the son of the petitioner herein on 12.12.2005. Hence, theletter dated 28.11.2005 could not be placed before the DetainingAuthority by the Sponsoring Authority. 10. The above information from the counter affidavitsfiled by respondents-1 and 2 amply shows that the saidrepresentation was duly considered and rejected by the competentauthority and the same was intimated to the detenu as well as thepetitioner herein, hence, the subjective satisfaction in passingthe detention order would not have been vitiated, if the letterdated 28.11.2005 was not placed before it. 11. The decision relied on by the learned GovernmentAdvocate, viz., 2004 SCC (Cri) 579 (UOI vs. Sneha Khemka), makes itclear that the Apex Court has nowhere stated that copy of therepresentation made by the detenu to one authority must be placedbefore all the authorities and all such authorities also shouldconsider and pass orders on those representations, though reallynot made to any one of them. In A.C.Razia vs. Govt. of Kerala (2004 https://hcservices.ecourts.gov.in/hcservices/ SCC (Cri) 618), three Judges Bench of the Hon'ble Supreme Court hasconsidered disposal of the representation in terms of Article 22(5)of the Constitution. The following conclusion of Their Lordshipsis as follows:-" 19. The emerging result of the abovediscussion is that the additional remedy orsafeguard provided by Section 11 has beenprojected into the fabric of Article 22(5) soas to be absorbed into the ambit of safeguardprovided by the latter part of Article 22(5).A provision like Section 11 may or may not benecessary to give effect to that safeguard,but, once a provision like Section 11 finds itsplace in the detention law, the detenu'sconstitutional right to make representationgets amplified. His right extends to makingrepresentations to all those authorities whocan grant him relief and the opportunityafforded to the detenu to submit suchrepresentations thus becomes a part of theguaranteed right under Article 22(5). That ishow the ratio of the above decisions has to beunderstood. In fact, that is how it has beenunderstood by the detaining authority in theinstant case. We find at the end of the ordera note to the effect that the detenu has theright to make representations to the detainingauthority, the Central Government and COFEPOSAAdvisory Board against the detention. Theaddresses of the said authorities were alsomentioned.20. What then is the width andamplitude of the power exercisable underSection 11 by the Central/State Government torevoke the order of detention? Are thereinherent limitations in such power? Thisquestion assumes some relevance in resolvingthe controversy arising in the present case.The decisions of this Court starting fromPankaj Kumar Chakrabarty case ((1969) 3 SCC400) make it clear that there is qualitativedifference between the manner of disposal ofrepresentation by the Government on the receiptof the report from the Advisory Board orotherwise and the manner of consideration bythe Advisory Board. It was observed in theabove case thus:(SCC p.405, para 10) https://hcservices.ecourts.gov.in/hcservices/ " [W]heras the Government considersthe representation to ascertain whether theorder is in conformity with its power under therelevant law, the Board considers suchrepresentation from the point of view ofarriving at its opinion whether there issufficient cause for detention...................21. Thus, the principle is well settledthat the Government in exercise of the powerunder Section 11 does not consider the questionof sufficiency or adequacy of the grounds butit would only see whether the detention orderis within the parameters of the power conferredunder the statute. In other words, it will notreview the case as if it is an original orappellate authority. That is why the powerunder Section 11 has been described assupervisory in nature as pointed out byG.P.Mathur, J. taking support from theobservations in Sabir Ahmed v. Union of India((1980) 3 SCC 295) and Sat Pal v. State ofPunjab ((1982) 1 SCC 12). Obviously, thissupervisory power cannot be equated to thesubjective satisfaction of the detainingauthority or the power of the Advisory Board toexamine whether there is sufficient materialfor detention. The range of consideration bythe Advisory Board is thus wider. " 12. It is clear from the above decision that reasonable delayin procuring the translation is not fatal and where there isreasonable explanation for the delay, the detention does not getinvalidated. The decision makes it clear that the Government, inexercise of the power under Section 11 of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, doesnot consider the question of sufficiency or adequacy of the groundsbut it would only see whether the detention order is within theparameters of the power conferred under the statute. In otherwords, it will not review the case as if it is an original orappellate authority. In the light of the above mentioned legalposition, we are unable to accept the contention raised by thelearned Senior Counsel for the petitioner.13. Coming to the contention relating to non-placing ofbail petition and the order passed thereon, as rightly pointed outby the learned Government Advocate, the details relating toawareness on the part of the authority regarding the said aspectare available in the grounds of detention. Even otherwise, in the https://hcservices.ecourts.gov.in/hcservices/ light of the decision of the Supreme Court reported in 1992 SCC(Cri) 1 (Abdul Sathar Ibrahim Manik v. Union of India), non-supplyof copy of bail application or order, refusing bail, cannot affectthe right of the detenu. The fourth principle laid down in thesaid decision is relevant and the same is extracted below:" Accordingly the non-supply of the copiesof bail application or the order refusing bailto the detenu cannot affect the detenu's rightof being afforded a reasonable opportunityguaranteed under Article 22(5) when it is clearthat the authority has not relied or referred tothe same."In the light of the law laid down by the Hon'ble Supreme Court, thecontrary argument made by the learned Senior Counsel is liable tobe rejected. 14. It is also contended that the grounds of detention,particularly paragraph No.(iii) of the Tamil and English version,are materially different. In the counter affidavit filed by thefirst respondent, in para No.14, it is stated thus:- " .... it had been mentioned in thegrounds of detention in Tamil that 'mg;bghUl;fspd;kjpg;ig Fiwthf mwptpj;J' for the word mis-declaration, which was a translation error.However, it will not affect the gravity of theoffence committed by him. ....." .Further, as rightly pointed out, the grounds of detention suppliedto the detenu in English were explained to the detenu in thelanguage known to him and he had also acknowledged receipt of thesame. Even otherwise, our verification shows that the error istrivial in nature and it would not affect the detention orderpassed by the authority.15. In the light of what is stated above, we do not findany error or infirmity in the impugned order of detention.Consequently, the Habeas Corpus Petition fails and the same isdismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.JI. https://hcservices.ecourts.gov.in/hcservices/ To1. Secretary to Government, Prohibition and Excise Department,Fort St. George, Chennai 600 009.2. Secretary to Govt., Ministry of Finance,Department of Revenue, COFEPOSA Unit, Janpath Bhawan,'B' Wing, 6th Floor, Janpath, New Delhi 110 001.3. The Superintendent, Central Prison, Chennai.(In duplicate for communication to detenu)4. The Joint Secretary to Government, Public (Law and Order)Fort St. George, Chennai-9.5. The Public Prosecutor, High Court, Madras.6. The Joint Secretary to Government, Public (Law and order) Fort Saint George,Chennai-9.1 cc to Mr.R. Loganathan, Advocate, Sr. 22357 HCP Nos.5 of 2006.MF (CO)kk 10/5