IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 18/02/2004
Coram
The Honourable Mr. Justice V.S. SIRPURKAR
and
The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA
H.C.P. No.908 OF 2003
A.T. Maideen
S/o A.L. Ahmed Thambi
(now detained in the
Central Prison, Chennai
as COFEPOSA detenu) ... Petitioner
-Vs-
1. The State of Tamil Nadu
rep. by the Secretary to Government
Public (Law & Order) Department
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
Janapath Bhavan, IV Floor
New Delhi 110 001
3. The Superintendent of
Central Prison
Central Prison
Chennai 600 003 ... Respondents
Petition under Art.226 of the Constitution, praying for a Writ of
Habeas Corpus as stated in the petition
For Petitioner :: Mr. K.A. Jabbar
For Respondents :: Mr. A. Navaneethakrishnan
Addl. Public Prosecutor
Mrs. Vanathi Srinivasan
A.C.G.S.C.
:ORDER
V.S. SIRPURKAR, J.
An order passed by the first respondent, dated 22-05-2003,
under the provisions of Sec.3(1)(i) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA ),
directing the preventive detention of one A.T. Maideen, son of A. L. Ahmed
Thambi,, with a view to prevent him from smuggling the goods in future is in
challenge in this habeas corpus petition.
2. Upon the intelligence information, the officers of the
Directorate of Revenue Intelligence (DRI) came to know that red sanders (
prohibited wood) were being exported as popcorn maize under Shipping Bill
NO.1585090 dated 25-4-2003 filed in the name of M/s. Vatchala Enterprises and
that the detenu and one Abdul Lasa were concerned in the said illicit export.
The DRI officials located the said container covered by the aforesaid shipping
bill, which was loaded on the trailer inside the Container Terminal at the
Chennai Harbour on 26-4-2003 and detained the same.
2.1. The said container was examined at Bharathi Dock Yard of Chennai
Harbour in presence of the independent witnesses and also in the presence of
R. Adhikesavan, Proprietor of M/s. Vatchala Enterprises, Chennai and Custom
House Agent (CHA), M/s. Fame Shipping Agency, Chennai, S. Chengalvarayan,
owner-cum-driver of the concerned trailer, B. Lenin of Container Agent M/s.
Goodrich Maritime, Chennai as also one Balaji, Manager of Numbal A.S.
Shipping Agencies (P) Limited, B. Prabhakar, Forestor, Forest Protection
Squad , Chennai and the officers of the Customs Department.
2.3. As per the shipping bill, the name of the consignee was
mentioned to be M/s. Golden Global Impex Pte. Ltd. at Singapore and the
declared consignment was 400 bags of popcorn maize, weighing 25 Kgs. each.
It was also found that the container was cleared by the Customs at Numbal CFS
on 26-4-2003 and despatched and the consignment arrived Chennai Harbour by an
identified trailer.
2.4. It was found on the examination, though the Customs seal and the
seal of M/s. Goodrich Maritime were found intact, one of the latches of the
container was found to be tampered and on further examination of the container
by cutting open the seals, it was found to contain 205 gunny bags containing
reddish wodden logs of different sizes and some popcorn maize spilled on the
floor of the container. The reddish wodden logs were confirmed as being red
sanders.
2.5. An investigation began on this. Thiru Adhikesavan, Proprietor
of M/s.Vatchala Enterprises, Chennai and the Customs House Agent stated that
he was not the actual owner of the goods and he had lent his companys name
and the IMPEX Code for the export of popcorn maize for monetary consideration
and that one Thiru Kaleel had approached him and mediated for the said export.
The owner of the trailer had stated during the investigation that Abdul Lasa
had met him at Numbal CFS and paid Rs.1,000/- towards diesel expenses for the
transport of export-cargo from Numbal CFS to Chennai Port and the balance
amount would be paid by the detenu, who was the owner of the consignment.
2.6. These red sanders, weighing about 10.475 MTs., were seized by
the officers of DRI under a mahazar as the same were prohibited items for
export. They were re-packed and kept in the same container. The logs were
thereafter handed over the authority for safe custody. The broken lock and
the Goodrich Seal were also seized.
2.7. The residential premises of the detenu were searched on 27-4-2
003 and during the search, it was found that a sum of Rs.8,00,000/- in Indian
Currency was kept inside the cupboard in the bedroom. It was stated in the
presence of some independent witnesses by the detenu that this amount was part
of the sale proceeds of the red sanders consignment exported under the guise
of export of Popcorn Maize in March 2003. That amount was seized. The office
premises were also searched by the DRI officials in presence of the
independent witnesses as also in presence of Abdul Lasa, Manager of
M/s.Genexpo Trading (P) Ltd., Chennai and during the search two keys were
found. Abdul Lasa stated that the keys were of the godowns at Puzhal where
the declared export cargo, viz. Popcorn Maize was destuffed and the red
sanders were stuffed in the above said container. The keys were also seized.
2.8. The godown at Ambattur was identified by Abdul Lasa and that was
also searched wherein 400 gunny bags were found containing popcorn maize. On
enquiry, Abdul Lasa informed that the said gunny bags were the declared cargo
of the above said shipping bill, which were removed on the previous day from
the container and substituted by the red sanders, which were earlier available
in the godown.
2.9. The owner of the trailer gave a statement that at the instance
of one Khan Bhai one empty container was transported from Sanco CFS to Numbal
CFS in his trailer and on 26-4-2003 popcorn maize was loaded whereupon Abdul
Lasa came there and gave Rs.1,000/- to Khan Bhai for diesel expenses and that
when the container was being moved to Chennai Harbour, a lean, black and
medium height person also came in the trailer, which was driven by Khan Bhai,
and at the instance of the said person, the trailer was stopped near Kolathur
Double Lake on the Puzhal road and thereafter they went for food and when they
returned back, the trailer was not there and after half-an-hour another driver
brought the trailer and then they reached the Chennai Harbour. When he asked
Abdul Lasa for the balance amount, he was informed that the goods belonged to
the detenu and that the dete nu would pay the balance.
2.10. The authorities got the clue from the statement of Adhikesavan
that he had lent his companys name and the IMPEX Code for a monetary
consideration of Rs.5,000/- to one Khaleel at the instance of one Arokiasamy,
a broker and as per the arrangement, it was decided to send an empty container
to Numbal CFS with a clerk; that Khaleels company would bring the procorn
maize for stuffing at Numbal CFS; M/s. Fame would handle the CHA work and
their clerk would take up the processing of papers and stuffing of container
at the CFS and would be there till the container was stuffed and sealed and
all paper work completed and thereafter the stuffed container would be handed
over to the transporter arranged by Khaleel, who would take care of the
transportation of the container to the Port and all other export work relating
to the said container. As per this arrangement, on 19-3-2003, they filed a
shipping bill, bearing No.1570116 in the name of M/s. Vatchala Enterprises
for the export of a consignment of popcorn maize to Singapore. Adhikesavan
further stated that though the name of his company, M/s. Vatchala Enterprises
was to be found in the bill, he was not in any way concerned with the seized
consignment and that he had only lent his companys name and the IMPEX Code
for the monetary consideration to Khaleel.
2.11. The detenu himself had made a statement that he was doing the
export-import business from the year 1993, exporting goods to Singapore,
Malaysia and other countries and that for the past two years he had been
exporting Agarbathis, onion, steel goods in the name of M/s.Genexpo Trading
Company. He further owned up that the goods in the said container were red
sanders, which were stuffed in the said container and that he got a message
from Khaleel that on the morning of 26-4-2003, popcorn maize was loaded into
the container at Numbal CFS and was cleared. It was owned up by the detenu
that he asked Abdul Lasa to wait near Kolathur Double Lake and on arrival of
the trailer with the stuffed container, he was to exchange the goods therein
as told by Khaleel and after exchanging the goods, the detenu was also
informed by Lasa. The DRI officials further came to know from the statement
of the detenu that Khaleel was a trader in foreign goods at the Burma Bazaar
and Chennai Airport and that he owns a shop in Burma Bazaar, Chennai and that
about a month back, Khaleel had approached him to introduce the party having
red sanders as he would arrange for the export of the same, which the detenu
had accepted and arranged a party called Mathi, who had the red sanders. He
also accepted to have taken Rs.50,000/- from Ganesan and it was at the
instance of Khaleel that the further deals were arranged. It was also owned
up in the statement that Rs.8,00,000/-, representing the sale proceeds of the
red sanders sent by him in March, 2003 and that popcorn maize loaded into the
container was procured by Khaleel; that Abdul Lasa was working in his company
and that he attended his office work as per his instructions.
2.12. In short, it was owned up by the detenu that he was deeply
involved in smuggling out the prohibited goods like red sanders and that he
had done it systematically by tampering with the Customs seals and that he was
benefited in that. From the other materials, the authorities came to the
conclusion that the detenu was knowingly involved in the whole racket and that
he had committed the offences under the Customs Act.
2.13. The detenu as well as Abdul Lasa were arrested on 27-4-2003 and
were remanded to the judicial custody. They were also being proceeded against
on the criminal charges. It was on this basis that the above mentioned
detention order came to be clamped against the detenu.
3. Shri Jabbar, learned counsel appearing for the detenu/
petitioner, painstakingly took us through the grounds of detention as also the
other allied records.
3.1. The first contention of Shri Jabbar is that there is
nonapplication of mind on the part of the detaining authority and for this, it
was pointed out by him that in paragraphs (xxiii) to (xxv) of the grounds of
detention, bail applications and some other documents were relied upon to
suggest that in these bail applications, the detenu had claimed to be an
innocent and that his statement was obtained by coercion. Learned counsel
then drew our attention to paragraph (xxv) and pointed out that a statement
was made therein that on 12-5-2003 a petition for extension of remand was
filed before the Magistrate. However, the detenu was not produced as it was
stated in the letter by the jail authorities that the detenu was admitted in
the hospital and, therefore, the Magistrate directed to produce the detenu on
14-5-20 03. The complaint of the learned counsel against this is that the
detaining authority, though had noted that the detenu was admitted in the
hospital, did not note the fact that between 12-5-2003 and 14-5-20 03, the
detenu was not in the custody of the jail authorities. Learned counsel
further points out that the remand was then extended on 14 -5-2003 till
28-5-2003 and it was during this period that the detention order came to be
passed on 22-5-2003. According to the learned counsel, it was incumbent upon
the detaining authority to note that between 12-5-2003 and 14-5-2003, the
detenu was not in the jail custody and he was not produced and, therefore, the
order passed shows nonconsideration of a vital fact that at the time when the
detention order was passed, the detenu was in the hospital.
3.2. In our opinion, this contention is completely incorrect. In the
first place, the contention that the detenu was not in the jail but was in the
hospital as he was admitted as an indoor patient and, therefore, he could not
be deemed to be an inmate of the jail is itself incorrect. We are satisfied
from the documents on record that since the detenu was not well, he was sent
to the hospital and admitted as an indoor patient in the hospital, a ward of
which is itself treated as a jail. That is the argument of the learned Public
Prosecutor, which has really not been controverted seriously by the learned
counsel for the petitioner. This is apart from the fact that even this was
not so yet, if the detenu was admitted as an indoor patient in the hospital at
the instance of the jail authorities, he would always be deemed to be in the
jail custody even if physically he was not inside the jail premises. In our
opinion, the non-mentioning of the fact in the grounds that the detenu was
admitted in the hospital as an indoor patient would not make any difference.
All that the detaining authority has to know is whether the detenu was in the
jail custody. There is no dispute that the detenu herein was in the custody
of the jail authorities by a valid remand. We, therefore, do not think that
there was any error or non-application of mind on any count. The first
contention is, therefore, rejected.
4. Learned counsel secondly urged that the detenu did not
have any working knowledge in English and the translations of the English
documents 12 to 14 at pages 138 to 141 of the paper-book were not supplied to
him and that when they were supplied, it was beyond resentation on the basis
of those documents. This is apart from the fact that those documents are
neither relied upon documents nor referred to documents. Therefore, when
it is admitted by the learned counsel that ultimately the translations of
those documents were supplied, though a little later, we do not see any
prejudice to the detenu or for that matter, any infraction of any rule or
right of the detenu. The second contention is, therefore, rejected.
5. The further contention is that the detention was for the
purpose of preventing the detenu from smuggling the goods in future whereas,
from the grounds all that it could be said was that he had abetted in
smuggling the goods. Learned counsel invited our attention to the language of
Sec.3(1)(i) of COFEPOSA wherefrom, according to the learned counsel, it
appears that smuggling goods was different from abetting of the smuggling
of goods. He, therefore, suggests that there has been non-application of mind
on the part of the detaining authority.
5.1. The argument is wholly incorrect because in paragraph 2, the
authority has stated that the State Government are satisfied that the detenu
had indulged in smuggling goods. We have deliberately given the facts in
details to show that it was clear to the detaining authority from the material
that the detenu had not merely abetted smuggling but, he was himself a party
to the smuggling racket and had thus smuggled the goods.
5.2. Under Sec.2(39) of the Customs Act, smuggling is defined as
under:
smuggling, in relation to any goods, means any act or omission which will
render such goods liable to confiscation under section 111 or section 113
Sec.2(e) COFEPOSA defines smuggling as follows:
smuggling has the same meaning as in clause (39) of section 2 of the Customs
Act, 1962 and all its grammatical variations and cognate expressions shall be
construed accordingly
Therefore, it is obvious that the detenu was engaged in an act, in relation to
the goods which rendered such goods liable for confiscation. The authorities
have in the grounds specifically stated that the goods, which the detenu was
trying to smuggle out of India, were liable for confiscation. This is apart
from the fact that abetment of smuggling is not by itself made an offence
under the Customs Act. It is clear from the grounds and more particularly
ground (xxvi) that goods which were dealt with by the detenu were liable for
confiscation. The authorities have clearly mentioned that the accused had
committed an offence under Sec.114 read with Sec.135 of the Customs Act. We,
therefore, do not think that there was anything wrong in the detaining
authority saying that the accused had commited the act of smuggling and that
it was necessary to clamp the preventive detention for preventing him from
smuggling the goods. The contention is, therefore, rejected.
6. Learned counsel further took us to the detenus
representation dated 2-6-2003 and pointed out that he had sought certain
documents, including the shipping documents and the subsequent documents. Our
attention was invited to paragraph 7(iv) wherein, the detenu had sought copies
of all the export documents relating to the export referred to in that
paragraph. It is the argument of the learned counsel that in his
representation, the detenu had stated that in the grounds of detention, it was
noted that he had involved in illicit export of prohibited items on earlier
occasions in a similar manner and, therefore, he had sought the export
documents relating to the said previous shipments. It is also pointed out
that even the subsequent documents, which include the shipping documents, were
sought for in this representation. Learned counsel says that these documents
not having been supplied to him there was a breach of the right on the part of
the detenu.
6.1. In the first place, these documents were never relied upon or
even referred to in the grounds. Secondly, the petitioner in his
representation had never specifically asked any specific documents. A round
about request by generally referring to some documents would be of no
consequence and would not entail any liability on the part of the detaining
authority or the State Government to supply the documents. We are completely
convinced that the contention has no merits. It is, therefore, rejected. The
so-called shipping bills, etc., in our opinion, were completely irrelevant.
6.2. Learned counsel tried to buttress his contention further by
saying that two statements of Arokiasamy were supplied to him and from those
statements, it was clear that the petitioner had no direct hand in the
smuggling. Arokiasamys statement is undoubtedly a referred to document. Mr.
Jabbar wanted us to note from the statements of Arokiasamy that it was
essential that the documents sought for by the detenu in his representation
were bound to be supplied to him. In spite of going through both the
statements, we do not find any relevance. Nor do we see any necessity to
supply to the detenu the documents which were not even properly or
specifically mentioned in the representation.
7. The next contention raised by the learned counsel is that
these two statements of Arokiasamy dated 12-6-2003 and 10-7-2003 were not put
before the Advisory Board. It was pointed out by the learned counsel that the
Advisory Board had met on 15-7-2003 and, therefore, the statements of
Arokiasamy, which were recorded by the Customs authorities were bound to be
placed before the Advisory Board. We do not see how Arokiasamys statements,
which were recorded during the further investigation, would in any manner
become relevant documents to the detention of the detenu. The argument is
undoubtedly based on the decision of this Court in K.V. JESUDASAN v. STATE
OF TAMIL NADU (1989 Crl.L.J.637) in which the Division Bench of this Court
held that even if a document comes into existence after the detention order,
if it has some relevance to the detention, it should necessarily be placed
before the Advisory Board. Even applying this test, we do not see as to how
the statements of Arokiasamy are in any way relevant to the subject of
detention. We have gone through the statements ourselves. There is nothing
in those statements to suggest that the earlier allegations made against the
petitioner were falsified in any manner. We, therefore, do not think that
this contention can be accepted. The contention is, therefore, rejected.
8. Learned counsel further contended that the State
Government failed to send the relied upon documents to the Central Government
along with its report under Sec.3 of the COFEPOSA and, therefore, the Central
Government was handicapped while deciding the same.
8.1. Learned Central Government Standing Counsel invites our
attention to the counters of the State Government and the Central Government.
In paragraph 17 of the counter filed by the State Government, it is
specifically pointed out that the copies of the detention order and the
grounds of detention were sent to the Central Government as per the provisions
of COFEPOSA by speed post. The grounds of detention would mean also the
materials in support of the grounds. That is precisely the import. Even from
the counter of the Central Government, it can be said that the Central
Government had considered the whole records sent by the State Government. If
this is so, there can be no question of accepting the argument that the
necessary material documents supporting the grounds were not sent by the State
Government. We would not, therefore, attach any importance to this argument
and would choose to reject the same.
9. Lastly, learned counsel suggested that in this case, the
last document is dated 22-5-2003 while the detention order is also dated 22
-5-2003 and, therefore, it was clear that the document dated 22-5-200 3 was
added only subsequently after the detention order was passed. Learned counsel
relied on the decision in SADIQ BATCHA v. the DEPUTY SECREATARY TO GOVERNMENT
OF TAMIL NADU (1989 L.W. Crl. 379). In that case, there was a clear finding
that the corresponding documents were added in the grounds of detention after
the detention order was passed by the competent authority. There can be no
question that such exercise is not possible. However, we do not see anything
there in the pleadings or in the records to suggest that such a thing has
happened. Merely because the last document is dated 22-5-2003, it does not
mean that the same came to be added only after the detention order was passed
and not before it.
10. We do not see any merit in the matter. The writ petition
is, therefore, dismissed.
Index:Yes
Website:Yes
Jai
To:
1. Secretary to Government
State of Tamil Nadu
Public (Law & Order) Department
Fort St. George
Chennai 600 009
2. Seceretary to Government
Union of India
Ministry of Finance
Department of Revenue (COFEPOSA Unit)
Central Economic Intelligence Bureau
Janapath Bhavan, IV Floor
New Delhi 110 001
3. The Superintendent of
Central Prison
Central Prison
Chennai 600 003
4. The Public Prosecutor
O/o Public Prosecutor
High Court
Madras