In the High Court of Judicature at Madras
Dated: 04/04/2005
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S.K. KRISHNAN
Habeas Corpus Petition No.1231 of 2004
Bepari Saleem .. Petitioner
-Vs-
1. The State of Tamil Nadu rep. By its
Secretary to Government
Public (SC) Department
Fort St. George
Chennai 9.
2. The Union of India rep. By its
Secretary, 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, Chennai 3. .. Respondents
Writ Petition is filed under Article 226 of the Constitution
of India praying of the issuance of a writ of Habeas Corpus as stated therein.
For petitioner : Mr. K.A. Jabbar
For respondents: Mr. A. Kandasamy
Addl. Public Prosecutor for R.1&3
Mrs. Vanathi Srinivasan
Addl. Central Govt., standing
counsel for R2.
:ORDER
(Order of the Court was made by P. SATHASIVAM,J.,)
The detenu, by name, Bepari Saleem, challenges the impugned detention
order dated 03.09.2004, detaining him under Section 3 (1) (i) of the
Conservation of Foreign Exchange and Smuggling Activities Act, 1974, ( in
short “COFEPOSA Act“).
2. Heard the learned counsel for the petitioner as well as
respondents.
3. Though several points have been raised questioning the impugned
detention order, the learned counsel appearing for the petitioner has pressed
the following points at the foremost.
“(i) The detenu was not supplied with the copy of the remand order dated
02.09.2004, in the language known to him within the prescribed time. The
belated supply of the relevant and relied on document vitiates the detention
order; and
(ii) The retraction letter dated 27.08.2004 was neither considered by the
detaining authority, nor the same was placed before the Advisory Board. On
this ground also the detention order is liable to be quashed. ”
4. Coming to the first contention, it is not in dispute that the
detenu was arrested on 16.08.2004 and remanded till 30.08.2004. On 30.0
8.2004, since the detenu was not produced, the learned Magistrate passed an
order for production of the detenu on 13.09.2004. It is further seen that on
02.09.2004, the detenu was produced and the remand was extended till
13.09.2004. It is the grievance of the detenu that though he was supplied
with the copy of the order dated 30.08.2004 both in English and Telugu
language, the order dated 02.09.2004, by which the learned Magistrate extended
the remand till 13.09.2004 has been supplied only on 20.10.2004. In this
regard, the learned counsel appearing for the petitioner by relying on the
judgment of the Supreme Court in the case of Ibrahim Ahmad Batti @ Mohd.
Akhtar Hussain @ Kadar Ahmed Wagher @ Iqbal @ Gulam vs. State of Gujarat and
others reported in 1983 S.C.C. (Cri) 66, would contend that it is mandatory
on the part of the detaining authority to serve copies of all documents,
statements and other materials incorporated in the grounds on which the
detaining authority has relied under Article 22 (5) of the Constitution of
India read with Section 3(3) of COFEPOSA Act to the detenu within the
prescribed time.
5. The learned Additional Public Prosecutor would submit that since
the detenu was supplied with the copy of the order dated 30.08.2004, directing
the production of the detenu by 13.09.2004 and the copy of the order dated
02.09.2004, extending the r d till 13.09.2004 has also been supplied to the
detenu on 20.10.2004, he has not been prejudiced in any way. It is relevant
to note that in Para 1 (xi) of the grounds of detention it is stated that the
detaining authority was aware of the fact that remand period expired on
30.08.2004 and as no escort was provided on that day, the detenu was not
produced before the Court. Therefore, the Additional Chief M etropolitan
Magistrate, E.O. II, Chennai posted the matter on 13.09.2004 for production
of the detenu. Later on, the detenu was produced before him on 02.09.2004 and
his remand period was extended till 13.09.2004. As rightly argued, the above
referred statement makes it clear that the detaining authority was conscious
of the fact that the detenu was produced before the Magistrate on 02.09.2004
and an order has been passed by the learned Magistrate extending the remand
period till 13.09.2004. In this regard, the following conclusion in para 8 of
the judgment in Ibrahim Ahmad Batti case (cited supra) is relevant.
“8. ….. It would thus follow that if the grounds together with copies of
all documents, statements and other materials incorporated in the grounds by
reference on which the detaining authority has relied are require to be
communicated to the detenu under Article 22(5) read with Section 3(3) of
COFEPOSA within the prescribed time then not merely the grounds of detention
but also the copies of all incorporated documents, statements and other
materials must be supplied to the detenu in a script or language which he
understands and failure to do so would amount to a breach of the mandate
contained in Article 22 (5) read with Section 3(3) of COFEPOSA. ”
Again in para 10 it is stated,
“10. Two propositions having a bearing on the points at issue in the case
before us, clearly emerge from the aforesaid resume of decided cases: (a) all
documents, statements and other materials incorporated in the grounds by
reference and which have influenced the mind of the detaining authority in
arriving at the requisite subjective satisfaction must be furnished to the
detenu along with the grounds or in any event not later than five days
ordinarily and in the exceptional circumstances and for reasons to be recorded
in writing not later than 1 5 days from the date of his detention, and (b) all
such material must be furnished to him in a script or language which he
understands and failure to do either of the two things would amount to breach
of the two duties cast on the detaining authority under Article 22 (5) of the
Constitution. …. ”
6. It is clear from the dictum laid down by their Lordships, the
remand extension order dated 02.09.2004, having been relied on and considered
by the detaining authority while passing the order of detention, copy of the
same must have been furnished to the detenu along with the grounds or in any
event not later than 5 days and in the exceptional circumstances for reasons
to be recorded in writing not later than 15 days from the date of his
detention. It is also clear that all such materials must be furnished to him
in the language which he understands and the failure to do either of the two
things would amount to breach of the two duties cast on the detaining
authority under Article 22 (5) of the Constitution. In the case before us,
the paper book supplied to the detenu does not contain copy of the remand
extension order dated 02.09.2004 either in English or in the language (
Telugu) known to the detenu, however the same was supplied both in English and
in Telugu version only on 20.10.2004.
7. Though the learned Additional Public Prosecutor contended that
copy of the order dated 02.09.2004 was subsequently supplied to the detenu,
the said order having been made a day prior to the detention order dated
03.09.2004 and the same having been relied on by the detaining authority, and
the relied upon document having been supplied after 38 days, which is beyond
the prescribed period, in the light of the principles laid down in Ibrahim
Ahmad Batti case, the detention order has to be quashed on the ground of
violation of safeguards contained in Article 22 (5) of the Constitution.
Since we accept the first contention, it is unnecessary for us to go into the
second contention.
In the light of what is stated above, the impugned detention
order dated 03.09.2004, is liable to be set aside; accordingly, the same is
set aside and the detenu is directed to be set at liberty forthwith from
custody unless he is required in connection with any other case or cause.
Index:Yes
Internet:Yes
kh
To
1. The Secretary to Government
State of Tamil Nadu
Public (SC) Department
Fort St. George
Chennai 9.
2. The Secretary,
Union of India
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, Chennai 3.
4. The District Collector, Chennai.
5. The Public Prosecutor, Madras.
6. The Joint Secretary to Govt.,
Public (Law and Order), Dept.,Chennai-9.