IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/10/2004
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE K.P. SIVASUBRAMANIAM
H.C.P.NO.521 OF 2004
R. Rajkumar
S/o. Ramasamy .. Petitioner
-Vs-
1. The State of Tamil Nadu
Rep. by the Secretary to the Govt.,
Public (SC) Department,
Fort St. George,
Madras 600 009.
2. The Union of India,
Rep. by the Secretary to Govt.,
Ministry of Finance,
Department of Revenue,
(COFEPOSA Unit),
Central Economic Intelligence Bureau,
Janpath Bhavan, Janpath,
New Delhi 110 001.
3. The Superintendent of Central Prison,
Central Prison, Trichy 3. .. Respondents
Petition filed under Article 226 of the Constitution of India for
the issuance of Writ of Habeas Corpus as stated therein.
For Petitioner : Mr.M.M.K. Alifudeen
for Mr.C.T. Subbiah
For Respondents 1-3 : Mr. Abudukumar Rajarathinam
Govt. Advocate (Crl.Side)
For Respondent-2 : Mrs. Vanathi Srinivasan
ACGSC
:J U D G M E N T
P.K. MISRA, J
This Habeas Corpus Petition has been filed by the detenu himself
challenging the order of preventive detention dated 23.12.2003 passed under
Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (Central Act 52 of 1974), hereinafter referred
to as COFEPOSA.
2. Petitioner is a Srilankan national. The order of detention was
served on 24.12.2003 along with the grounds of detention. In the grounds, it
is indicated that the detenu was intercepted by the custom officials belonging
to the Department of Revenue Intelligence. When questioned about possession
of any foreign currency and declaration thereof, the detenu answered in
negative. On a search of the detenu person, it was found that he was carrying
5250 Srilankan Rupees and 23 US Dollars in his pocket. Thereafter, the
officers of Department of Revenue Intelligence checked the baggage of the
detenu and it was found that foreign currencies (46,350 US Dollars) had been
kept concealed in a cavity between two layers of the carton, wherein Godrej
hair dye had been packed. The detenu gave a statement that the carton
containing Godrej hair dye had been handed over by one Vijayakumar of Mannadi
at Chennai with an instruction to handover to one Udayan of Srilanka and the
detenu would be paid at the rate of Rs.250/- (in Srilankan currency) per kg.
by the aforesaid Udayan at the time of delivery of the goods. It was further
stated by the petitioner that he did not know about the concealment of Dollars
in such carton and had he known, he would not have committed the offence. The
detenu after being arrested on 13.12.2003, on the basis of the aforesaid
incident, was produced before the Judicial Magistrate-1, Trichy and was
remanded. Subsequently, the preventive order of detention dated 23.12.2003
was passed.
3. On the basis of the aforesaid factual background, the learned
counsel for the petitioner has contended that in view of the specific stand of
the petitioner in his statement before the custom officials at the time when
he was apprehended, there was no basis for passing an order of preventive
detention, as there is nothing on record to indicate that the petitioner had
knowledge about the concealment of the foreign currency in the carton
containing Godrej hair dye and, since the petitioner was innocent, no order of
preventive detention should have been passed, and there was no basis for
passing such an order. The petitioner has further submitted in this
connection that the custom officials should have verified about the
explanation given by the petitioner, by questioning Vijayakumar, who had
handed over the carton containing Godrej hair dye.
4. The aforesaid contention raised on behalf of the petitioner is
resisted by the learned Government Advocate appearing for the respondents 1
and 3. It is submitted by the learned counsel for the State that as apparent
from the grounds of detention, the petitioner had visited India very
frequently in the past and on the basis of the passport dated 28.8.2003, he
had visited at least nine times within a short span of hardly three months,
and on the basis of such previous conduct and on the basis of the statement
made by the petitioner before the custom officials, the detaining authority
came to the subjective satisfaction that the petitioner was required to be
kept under preventive detention and there is no reason to interfere with the
discretionary order passed by the detaining authority on the basis of
subjective satisfaction by taking into account the relevant factors. It is
also pointed out by the learned counsel that as a matter of fact, the
petitioner had merely given the name of Vijayakumar of Mannadi without giving
any details about the actual address and even without giving any contact phone
number, which itself is a suspicious circumstance to discount the plea of
innocence of the petitioner.
5. It is of course true that the detaining authority has relied upon
the confessional statement made by the petitioner himself and in such
statement, the petitioner had given explanation that the carton had been
handed over by one Vijayakumar of Mannadi at Chennai and the petitioner was
not aware of the concealment of the foreign currency. There is no dispute
that the carton containing concealed foreign currency was being carried by the
petitioner as a registered baggage. The detaining authority had considered
the statement of the petitioner and in the background of the facts, as
revealed, had come to a subjective satisfaction. At that stage, the detaining
authority was not required to come to a definite conclusion of the culpability
of the person concerned on the basis of any detailed enquiry in the matter nor
was required to weigh the pros and cons in an objective manner. Even though
there may be possibility of some truth in the explanation furnished by the
detenu, which may be accepted in a Court of law in a regular trial of the
criminal case, the subjective conclusion of the detaining authority cannot be
characterised as unfounded or fully without basis so as to warrant
interference in a proceedings under Article 226 of the Constitution of India.
If the subjective satisfaction of the detaining authority is one which could
have been arrived at on the basis of the materials on record, the High Court
is not empowered to interfere with such order merely on the footing that
possibly a different view can be taken in the matter in a regular trial.
Since the High Court does not sit as an appellate authority in such matters,
keeping in view the limited scope of interference in such matters, we do not
think that the conclusion of the detaining authority can be said to be without
any basis, requiring any interference by the High Court.
6. Learned counsel for the petitioner has relied upon the decision of
the Supreme Court in 2002(2) CTC 178 (CHOWDARAPU RAGHUNANDAN v. STATE OF
TAMIL NADU AND OTHERS) and has contended that in view of the clear statement
made by the detenu himself, the detaining authority should have applied his
mind carefully to the various facts and circumstances, particularly, regarding
the explanation to the effect that the carton had been handed over by one
Vijayakumar of Mannady.
7. We have carefully perused the aforesaid decision of the Supreme
Court, particularly the observations made by Raju, J in the concurring
opinion, on which strong reliance has been placed by the learned counsel for
the petitioner. While considering the relevant circumstances, it was observed
:-
6. … So far as the facts on record in this case are concerned, it
is seen that a stand has been taken for the petitioner, at any rate, from the
time of filing the bail application on 18.4.2001, that the baggage in question
did not belong to him, that the earlier statement obtained was under threat,
coercion and undue influence and that those baggage did not contain any tag
also to connect the same with him. That apart the specific stand taken for
the petitioner is also that the baggage containing the goods in question were
in name of one Babu with his ticket number and address and no action could be
taken against him before recording a finding properly and deciding on the
basis of any concrete material the ownership of the disputed baggage. All the
more so when the Department itself has been after the said person also and the
matter has not reached to any final conclusion. As for the grievance that
these relevant materials have not been adverted to or considered by the
Detaining Authority before ordering the detention of the petitioner, in the
counter affidavit filed on behalf of the 1st respondent Detaining Authority,
it is admitted that investigation is still pending to ascertain the
involvement and role of the other person but that may not have any
significance or relevance in the teeth of the admission contained in the
confessional statement of the petitioner and that at any rate the Detaining
Authority was very much aware of those facts when the order of detention came
to be passed.
8. We do not think that the facts and circumstances of the
present case are of any perceptible resemblance to the facts and circumstances
of the case decided by the Supreme Court. In the said case, there was a basic
dispute regarding the fact as to whether the baggage was under the possession
of the detenu. In the present case, it is not at all disputed that the
baggage in question was being transported by the detenu, but he has come out
with a specific plea that he had no knowledge regarding the concealment of the
foreign currency in such baggage. If the specific address and/or the contact
telephone number of Vijayakumar would have been indicated by the petitioner in
his statement made before the custom officials, may be one could have found
fault with the custom officials for not directing their investigation further
on the said aspect. In the present case, in the grounds of detention, the
detaining authority has indicated the fact that the petitioner even if claims
that he had earlier been engaged in the same manner by the very same
Vijayakumar, yet he has not furnished any concrete address of Vijayakumar.
Even in a Court of law, in a regular trial, the petitioner would be required
to discharge the onus in view of the specific provision contained in Section
135A of the Customs Act regarding the fact as to whether he had knowledge or
otherwise regarding the foreign currency.
9. In the aforesaid decision of the Supreme Court, the person
in question had visited the foreign country merely on two occasions, whereas,
in the present case, the petitioner had visited India on nine occasions within
a very short span of a few months. The possibility of the petitioner
accepting goods for transportation on payment of some commission is indeed
very remote, unless there is sufficient contact between the two. The least
one could have e xpected is furnishing of address of such person, from whom
the petitioner claims to have received the goods.
10. In view of the peculiar facts and circumstances of the
present case, we do not think that the ratio of the decision of the Supreme
Court in 2002(2) CTC 178 (cited above) can be made applicable.
11. Learned counsel for the petitioner has then contended
that admittedly the passport of the petitioner has been impounded and in the
absence of a passport, there is no possibility at all of the petitioner, even
if released on bail, committing any similar offence in future. For the
aforesaid purpose, he has placed reliance upon the decision of the Supreme
Court reported in 2002 (83) ECC 281 (SC) (RAJESH GULATI v. GOVT. OF NCT OF
DELHI & ANOTHER). In the aforesaid case, the Supreme Court had observed :-
15. In other words according to the detaining authority the prime
mover for the smuggling activity was the proprietor of M/s.B.D. Denim. The
appellant at the worst was a pawn in the hands of another. The likelihood of
the appellant indulging in smuggling activities by the appellant was in any
case effectively foreclosed by the retention of his passport by the customs
department. The detaining authority noted that the appellants passport was
with the customs department and yet he said but you are likely to travel
clandestinely for the purpose of smuggling. Now none of the instances of
smuggling by the appellant as stated in the impugned detention order describe
the appellant as having travelled without a passport for the purpose of
smuggling. The conclusion that despite the absence of his passport the
appellant could or would be able to continue his activities is based on no
material but was a piece of pure speculation on the part of the detaining
authority. These findings are sufficient to invalidate the impugned detention
order…
12. As apparent from a perusal of the aforesaid paragraph in
the said case, the detaining authority had concluded that the detenu was
likely to travel clandestinely for the purpose of smuggling and in that
context, the Supreme Court observed that in none of the instances of smuggling
of the detenu it had been stated in the impugned order that the detenu had
travelled without a passport for the purpose of smuggling, and therefore, the
Supreme Court observed The conclusion that despite the absence of his passport
the appellant could or would be able to continue his activities is based on no
material but was a piece of pure speculation on the part of the detaining
authority. Moreover, there is nothing to indicate that the detenu in the
present case is merely a pawn in the hands of another. We do not think that
in the facts and circumstances of the present case, the aforesaid decision
would be applicable.
13. On the other hand, as rightly contended by the learned
counsel for the State, the subsequent decision of the Supreme Court in 2003
SCC (Cri) 1463 (SITTHI ZURAINA BEGUM v. UNION OF INDIA AND OTHERS) is
squarely applicable. In the aforesaid case, the earlier decision of the
Supreme Court was distinguished and it would be apt to quote from the judgment
itself :
8. Lastly, it is urged on behalf of the detenu that a solitary
instance without any propensity to evade duty should not be made a ground for
detention and particularly when his passport had been seized on the same day
of his arrest, there is no chance of his committing further acts of smuggling
for which he has now been detained. In this context, the learned counsel
placed reliance on the decision in Rajesh Gulati V. Govt. of NCT of Delhi to
contend that retention or cancellation of passport will cripple the smuggling
activity inasmuch as there is no material to show that even in the absence of
a passport he would be able to continue the activities in respect of which he
is detained; that such an attempt would be merely speculative based on no
material.
9. The stand of the Department is that whether there can be detention
on a solitary instance would depend on the facts and circumstances of each
case, on the magnitude of the case and other attendant circumstances. In the
present case, it is stated that the detenus passport disclosed that he had
made several trips abroad and he was not a man of such affluence as to make so
many trips out of the country unless they be in the context of his business
activities. Therefore, considering the number of trips he had made out of the
country, the volume of goods seized now and the prima facie misdeclaration of
value, an inference can be drawn that the detenu was part of a bigger network
in bringing the goods for commercial distribution inside the country by
avoiding the payment of duty. In this background, absence of passport will
not be a handicap to the detenu for his activities in the present case in
which the fact situation is different from the one available in Rajesh Gulati
case. Nor can we confine the meaning of the word smuggling only to going
out of the country and coming back with goods which are contraband or to evade
duty but may encourage such activities as well by dealing in such goods.
14. In our opinion, the latter decision of the Supreme Court
is more applicable to the facts and circumstances of the present case.
15. The last and somewhat inevitable contention raised by the
learned counsel for the petitioner is the alleged delay in consideration of
the representation of the petitioner. It is contended that a written
representation dated 31.3.2004 had been prepared by the counsel for the detenu
and the same had been sent to the Superintendent of Central Prison, Tiruchy,
along with the counsels covering letter dated 3 1.3.2004, requesting the jail
authorities to send the representation to the appropriate authorities, but
those representations were not under active and continuous consideration of
the authorities and there had been delay in consideration.
16. In the counter affidavit filed on behalf of the second
respondent, it has been indicated that the representation was forwarded by the
Superintendent, Central Prison, Tiruchy by letter dated 6.4.2004, which was
received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue,
New Delhi on 12.4.2004 and parawise comments were called for from the
sponsoring authority, namely the Additional Director General, DRI, Chennai on
12.4.2004. In the meantime, comments of the sponsoring authority on the
representation was received in the COFEPOSA Unit of Ministry of Finance on the
evening of 13.4.2004. 14th April, 2004 was a holiday and the documents were
placed before the Under Secretary on 15.4.2004, who processed the case and put
up the file to the Joint Secretary on the very same day, who in turn submitted
the file to the Special Secretary and Director General. Ultimately, the
representation was considered carefully and rejected on 15.4.2004 itself and
the detenu was communicated vide Memorandum dated 15.4.200 4.
17. The stand taken by the second respondent is also clearly
indicated in paragraph 11 of the counter affidavit filed by the first
respondent. In view of the above, it cannot be said that there has been any
undue delay in consideration of the representation of the petitioner.
18. For the aforesaid reasons, we do not find any merit in
this habeas corpus petition, which is according rejected.
Index : Yes
Internet: Yes
dpk
To
1. The State of Tamil Nadu
Rep. by the Secretary to the Govt.,
Public (SC) Department,
Fort St. George,
Madras 600 009.
2. The Union of India,
Rep. by the Secretary to Govt.,
Ministry of Finance,
Department of Revenue,
(COFEPOSA Unit),
Central Economic Intelligence Bureau,
Janpath Bhavan, Janpath,
New Delhi 110 001.
3. The Superintendent of Central Prison,
Central Prison, Trichy 3.
4. The Public Prosecutor,
High Court, Madras.