Judgment · High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 18.04.2005Coram:-The Hon'ble Mr. Justice P.SATHASIVAMandThe Hon'ble Mr. Justice S.K.KRISHNANH.C.P.No.1289 of 2004 Mohammed Haneefa .. Petitioner -vs-1. State of Tamilnadu rep. By Secretary to Government, Public (SC) Department, Fort St.George, Chennai – 9.

Union of India, rep. By Secretary to Government, Ministry of Finance, Department of Revenue, COFEPOSA Unit, New Delhi 110 001. .. Respondents Petition filed under Article 226 of the Constitution of India to issuea Writ of Habeas Corpus calling for the records of the first respondentmade in G.O.No.SR.1/1170-4/2004 dated 23.09.2004, quash the same anddirect the respondents to produce the body of the detenu Mohammed HaneefaRahmathali son of Mohammed Haneefa presently detained in Central Prison, Chennai, before this Court and set him at liberty forthwith. For Petitioner : Mr. B.Kumar, Senior Counsel for Mr.R.Loganathan For Respondents : Mr. A.Kandasamy, Addl.P.P. for R1 Mrs. Vanathi Srinivasan, A.C.G.S.C. For R2. https://hcservices.ecourts.gov.in/hcservices/

O R D E R(Order of the Court was delivered by P.SATHASIVAM, J.)The father of the detenu by name Mohamed Hanifa Rahumathali, challenges the order dated 23.09.2004 passed by the first respondentdetaining his son Mohamed Hanifa Rahumathali, under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling ActivitiesAct, 1974 (COFEPOSA in short).2. Heard Mr.B.Kumar, learned Senior Counsel appearing for thepetitioner and Mr. A.Kandasamy, learned Additional Public Prosecutor forthe first respondent and Mrs. Vanathi Srinivasan, Additional CentralGovernment Standing Counsel for the second respondent.

Though several contentions have been raised questioning theimpugned order of detention, learned Senior Counsel for the petitioner atthe foremost submitted that the detaining authority has erred in relyingupon Section 123 of the Customs Act and for having cast the burden ofproof on the detenu. According to him, it is impermissible and in theproceedings of preventive detention, Section 123 of the Customs Act canhave no application. In support of his above contention, he reliedon the earlier Division Bench decision of this Court in the case of Gunasundari vs. State of Tamil Nadu, etc., and another reported in 2003-2-L.W.(Crl.)884.

On the other hand, learned Additional Public Prosecutor appearingfor the first respondent, after taking us through the grounds of detentionwould submit that the detaining authority is fully justified in relying on Section 123 of the Customs Act and the decision relied on by the learnedSenior Counsel for the petitioner is not applicable to the case on handand the same is distinguishable on facts.

We have carefully considered the materials and perused the groundsof detention as well as the rival contentions.

In the affidavit filed in support of the above petition, inparagraph No.10, a specific point has been raised stating that thedetaining authority has erred in relying upon Section 123 of the CustomsAct and for having cast the burden of proof on the detenu. It is alsostated that it is impermissible and in the proceedings of preventivedetention, Section 123 of the Customs Act can have no application and thedetaining authority has not formulated the grounds after due applicationof mind. It is further stated that non application on the part of thedetaining authority is patent.

With reference to the said claim, the first respondent in hiscounter affidavit, in paragraph No.10, after referring to Section 123 ofthe Customs Act and other connected provisions has observed that, https://hcservices.ecourts.gov.in/hcservices/ "...Thus, the above said onus lies on the detenuto prove the licit nature of the gold jewellery seizedfrom him which he had not discharged as he confessedthat he had brought them in the manner above said forand on behalf of a third party as a paid carrierthereby, clearly admitted that the said gold jewellerydid not belong to him. Further, the goods beingbrought by the detenu as a passenger from abroad, he isrequired to be cleared by Customs and all theprovisions of the Customs Act, 1962 are applicable tohim. However, the detention order passed against himis under the provisions of the Conservation of ForeignExchange and Prevention of Smuggling Activities Act,1974 for the act of smuggling consciously indulged inby him under the Customs Act, 1962. In thecircumstances, the contention that the detainingauthority has also erred in relying upon section 123 of Customs Act and for having cast the burden of proof onthe detenu and that it is also impermissible and in theproceedings of preventive detention section 123 canhave no application is untenable". The above reference in the counter affidavit makes it clear that theinference under Section 123 of the Customs Act was very much relied on bythe Detaining Authority.

Now, let us consider the relevant statement made in the grounds ofdetention. In paragraph No.1(vi), the following averments have been made. "... Further, an Indian passport holder who hasstayed abroad for not less than six months is onlypermitted to import gold in any form from abroad andclear the same on payment of appropriate duty at theapplicable rate in convertible foreign exchange. Goldbrought by a non-eligible passenger is deemed to beprohibited goods as per Section 2(33) of the CustomsAct, 1962. Besides, gold is covered under Section 123of the Customs Act, 1962 whereby the onus of provingthat such gold is not smuggled one lies on the personfrom whose possession the same were seized. Therefore, such goods when brought by a passenger incontravention of the above legal provisions andwithout making a proper declaration are liable toconfiscation under Section 111(d), 111(1) and 111(m)of the Customs Act, 1962 read with Sections 2(33), 11and 123 of the Customs Act, 1962, Para 2.20 of the Export & Import Policy for 2002-2007, Section 3(3), 5and 11(1) of the Foreign Trade (Development &Regulation) Act, 1992 and the said passenger is liableto penal action under Section 112 of the Customs Act,1962 and punishment under Section 132 and 135 of the https://hcservices.ecourts.gov.in/hcservices/ Customs Act, 1962."Again in the same paragraph it is stated: "... Therefore, the gold jewellery of foreignorigin totally weighing 954gms valued at Rs.5,42,826/-and 31 Nos.

One of the contentions raised before the earlier Division Bench ofthis Court is that the Detaining Officer has no power to invoke thepresumption under Section 123 of the Customs Act, 1962 in violation of Articles 21 and 22(5) of the Constitution of India and thereby, thesubjective satisfaction of the detaining authority is vitiated. Whileconsidering the said submission, the Division Bench, before giving theiranswer, relied on the decision of the Constitution Bench of the SupremeCourt, in the case of Collector of Customs v. Sampathu Chetty, reported in(AIR 1962 S.C.316). In that decision, the Constitution Bench hasconsidered the vires of Section 178A of the Sea Customs Act, 1878, whichplaced the burden of proving on the person in possession of the goods. After referring the same, they concluded that this result follows only onan order of adjudicating officer who investigates into the complaintregarding the possession of smuggled goods and they further held that, "Nevertheless, it is manifest that at the stage ofadjudication (when only the rule of evidence laid downby this Section comes into operation), the very factswhich led the seizing officer to effect the seizure asdistinguished from their significance as affordingreasonable belief for the seizing officer to hold thatthe goods are smuggled are before the adjudicatingofficer.

The Division Bench has also relied on the subsequent judgments ofthe Supreme Court, in the case of Shalini Soni v. Union of India, reported in (1980 Crl.L.J.1487). The following conclusion is also relevant. "... It also means that the detenu is to beinformed not merely of the inferences of fact but allthe factual materials which have led to the inferencesof fact. If the detenu is not to be so informed, theopportunity so solemnly guaranteed by the Constitutiongets reduced to an exercise in futility. In this case, the inference drawn by the seizing officer cannot beimported to that of the detaining authority and theburden of proof will not be available and cannot beinvoked while passing the order of detention withoutany materials whatsoever. " https://hcservices.ecourts.gov.in/hcservices/

Though the learned Additional Public Prosecutor vehementlycontended that the said decision of the earlier Division Bench referred toabove is not applicable to the case on hand, on going through the brieffacts which were stated in paragraph No.2 of the order, we are unable toaccept the objections raised by him. On the other hand, as rightlypointed out, the very same contention had been raised before the earlierDivision Bench, namely, with reference to presumption under Section 123 ofthe Customs Act in preventive detention case and after considering the lawlaid down by the Constitution Bench of the Supreme Court, the DivisionBench of this Court has concluded that the presumption under Section 123of the Customs Act cannot be applied to preventive detention underCOFEPOSA, whereas, the same is applicable before the adjudication officer.

On going through the relevant paragraphs in the grounds ofdetention which we have already extracted, we are in respectful agreementwith the view expressed in the earlier Division Bench decision and holdthat the detaining authority while subjectively satisfying himself oninvoking the power of COFEPOSA cannot be permitted to do so when thedetenu failed to discharge the burden and that he cannot avail of thepresumption drawn by the customs officer in his favour. We also hold thatthe inference drawn by the seizing officer cannot be imported to that ofthe detaining authority and the burden of proof will not be available andcannot be invoked while passing the order of detention without anymaterials whatsoever. In such circumstances, we hold that the impugnedorder of detention in this Habeas Corpus petition is liable to be setaside and it is accordingly set aside. The HCP is allowed and therespondents are directed to release the detenu forthwith unless hisdetention is required in any other case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gmsTo1. The Secretary to Government, State of Tamilnadu , Public (SC) Department, Fort St.George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/

2. The Secretary to Government, Union of India, Ministry of Finance, Department of Revenue, COFEPOSA Unit, New Delhi 110 001.3. The Superintendent, Central Prison, Chennai – 3.4. The Joint Secretary to Government Public (Law and Order) Fort St.George, Chennai - 9.5. The Public Prosecutor, High Court, Madras 104.6. The Sub Assistant Registrar, COFEPOSA, High Court, Madras.+ 1 CC to Mr.R.Loganathan, Advocate SR NO 18189+ 1 CC to Mrs. Vanathi Srinivasan, Advocate SR NO 18452H.C.P.No.1289 of 200418.04.2005pv(co)gp/27.4.