Mohamed Sathali Premnasir v. The State of Tamilnadu

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.1400 of 2004Mohamed Sathali Premnasir... Petitionervs.1. The State of Tamilnadu Rep. by the Secretary to the Government,Public (SC) Dept.,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, “B”-Wing,6th Floor, Janpath,New Delhi-110 001.3. The Superintendent ofCentral Prison,Central Prison, Madurai.... RespondentsPetition under Article 226 of the Constitution of India for theissuance of a writ of habeas corpus to call for the recordsrelating to the detention order in G.O.No.SR.1/1142-4/2004, Public(SC) department dated 20.09.2004 passed by the first respondentherein and quash the same and direct the respondents to producethe body of the person of the detenu, Mohamed Sathali Premnasir,son of (Late) Mohamed Sathali, detained in the Central Prison,Madurai as COFEPOSA detenu and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.K.A.JabbarFor R-1 & R-3: Mr.A.Kandasamy Additional Public Prosecutor.For R-2: Mrs.Vanathi Srinivasan, Addl. Central Govt. Standing Counsel. . . . .O R D E R (Order of the Court was made by P.SATHASIVAM, J.)The detenu by name Mohamed Sathali Premnasir, who wasdetained by the impugned detention order, dated 20.9.2004, passedunder Section 3(1)(i) of the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 (Central Act 52 of1974), challenges the said order in this Habeas Corpus Petition.2. Heard learned Counsel for petitioner, learnedAdditional Public Prosecutor for R-1 and R-3 and learnedAdditional Central Government Standing Counsel for R-2.3. Though several contentions have been raisedquestioning the impugned order of detention, learned counselappearing for the Petitioner at the foremost projected that thedetention order is liable to be quashed on the ground of non-application of mind on the part of the Detaining Authority, sincethere is no valid order extending the remand of the detenu beyond07.09.2004.4. To substantiate the above contention, learned counselfor the petitioner has taken us through copy of the remandextention order, both English and Tamil versions, which findsplace at page Nos.102 and 103 of the booklet supplied to thedetenu. By drawing our attention to the said order, it iscontended that after recording the fact of production of theaccused, namely, the detenu, through video conference, the learnedAdditional Chief Metropolitan Magistrate, E.O.1, Egmore, Chennai-8, simply adjourned the petition to 21.09.2004 and that no orderhas been passed extending the remand of the detenu till21.09.2004. According to the counsel, this is clear from theTamil version of the order, which finds place at page No.103 ofthe booklet. We have gone through both English and Tamil versionof the order which finds place at page Nos.102 and 103 of thebooklet. On verification of the same, we see that a petition wasfiled for extension of remand beyond 07.09.2004 and though https://hcservices.ecourts.gov.in/hcservices/ production of the accused was satisfied through video conference,we do not find any specific order by the Additional ChiefMetropolitan Magistrate, extending the remand beyond 07.09.2004,both in the English and Tamil versions of the order. However,learned Additional Public Prosecutor, by drawing our attention tothe Heading made to that order, namely, “REMAND EXTENSION ORDERDATED 07.09.2004”, would submit that the said caption makes itclear that the learned Magistrate extended the remand till21.09.2004 and according to him, there is no flaw in the saidorder. It is also brought to our notice the statement made in thecounter affidavit filed on behalf of the first respondent. Inparagraph No.6, it is stated as follows:- “ ... I submit that in the order, dated7/9/2004 of the Additional Chief MetropolitanMagistrate, Economic Offence-I, it was stated interalia, as ‘adj....to 21.9.2004”. But, the detenu hasfailed to note the superscription of the order whichread as Remand Extension Order, dated 7/9/2004 andtherefore it implies that the remand of the accusedhas been extended upto 21.9.2004 and this documentalong with its Tamil translation are available atpages 102 and 103 of the booklet. “5. We have already referred to the order of the learnedMagistrate dated 07.09.2004 (both English and Tamil versions). Ongoing through the same, we are satisfied that there is no specificorder extending the remand beyond 07.09.2004. In suchcircumstances, the explanation offered in the counter affidavit,particularly in paragraph No.6, cannot be accepted. Thoughlearned Additional Public Prosecutor heavily relied on the"caption" of the order, we are of the view that caption is not theorder of the learned Magistrate and we are concerned only with theactual order passed by the Presiding Officer concerned. As saidearlier, looking at any angle, we cannot presume that the learnedMagistrate has extended the period of remand beyond 07.09.2004 asclaimed by the learned Additional Public Prosecutor and asexplained in the counter affidavit filed before us. We aresatisfied that there is no specific order extending the remandbeyond 07.09.2004. 6. In this regard, learned counsel appearing for thepetitioner has also brought to our notice an earlier decisionrendered by a Division Bench of this Court reported in 2002-2-L.W.(Cri) 543 (Karthik v. The Commissioner of Police, etc. & another).It is seen that for a wrong description of the date (according tothe prosecution, it is a typographical error), the Division Bench,relying on an earlier Division Bench decision in S.ChelladuraiNadar v. State of Tamil Nadu (1992(1) Crimes 271), quashed the https://hcservices.ecourts.gov.in/hcservices/ detention order therein on the ground of non-application of mind.The Division Bench decision relied on by the learned counsel forthe petitioner is applicable to the case on hand.7. In the light of our discussion, the Habeas CorpusPetition is allowed, quashing the impugned order of detentiondated 20.09.2004. The detenu is directed to be set at libertyforthwith from the custody unless he is required in some othercase or cause. JI.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to the Government, Public (S.C.) Dept.,Fort St. George, Chennai 600 009.2. Secretary to the Government, 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 of Central Prison,Central Prison, Madurai.4. The Joint Secretary to Govt Public (Law and order) Fort Saint George, Chennai 9.5. The Public Prosecutor,High Court, Madras 104.6. The Sub Asst.Registrar COFEPOSA Section, Administrative Dept.,High Court, Madras.+ 1 cc to M/S.K.A.Jabbar, Advocate SR 18842+ 1 cc to Mr.Vanathi Srinivasan, SR 18455AK(CO)SR/26.4.2005 HCP. No.1400 of 2004.