1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21-12-2006
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE J.A.K. SAMPATH KUMAR
HABEAS CORPUS PETITION NO.750 OF 2006
Harpinder Singh
S/o. Gurudev Singh .. Petitioner
Vs.
1. The State of Tamil Nadu,
Rep. by the Secretary to the
Government, Public (SC)
Department, Fort St. George,
Chennai 600 009.
2. The Union of India, rep. by
the Secretary to the Government,
Ministry of Finance,
Department of Revenue (Cofeposa Unit),
New Delhi.
3. The Superintendent,
Central Prison,
Chennai 600 003. .. Respondents
Petition filed under Article 226 of the Constitution of
India for the issuance of writ of Habeas Corpus calling for
the records relating to the detention order in
G.O.No.S.R.1/532-2/2006 dated 28.7.2006 passed by the first
respondent and quash the same and direct the respondents to
produce the body of the person of the detenu, namely,
Harpinder Singh, son of Gurudev Singh before this Court, now
detained under Section 3(1) of the COFEPOSA Act in the
Central Prison, Chennai and set him at liberty.
For Petitioner : Mr.B. Kumar,
Senior Counsel for
Mr. Palani Kumar
For Respondents : Mr.M. Babu Muthu Meeran
Addl. Public Prosecutor
J U D G M E N T
P.K. MISRA, J
The detenu has filed this Habeas Corpus Petition
challenging the order of detention dated 28.7.2006 passed by
the Government of Tamil Nadu detaining the detenu 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 “the Act”.
2. The order of detention has been passed on the
following grounds:-
On 26.6.2006, the detenu arrived at Chennai from
Bangkok by flight. When he was questioned, the detenu
produced five Baggage Claim Tags, out of which 4 were in the
name of the detenu. The detenu declared that the checked in
baggage as well as hand baggage were containing clothes,
cosmetics and personal belongings and all the checked in
baggage were held up at Bangkok. Examination of hand
baggage resulted in recovery of 1040 nos of 512 MB
Multimedia Cards, value of which was Rs.6,24,000/- and the
said goods were seized. In the voluntary statement, the
detenu confessed about the aforesaid aspects. By attempting
to smuggle 512 MB Multimedia Cards by way of misdeclaration
with an intention to evade customs duty in violation of
Sections 72 and 79 of the Customs Act, the detenu was liable
to be prosecuted under Sections 132 and 135 of the Customs
Act as well as Section 112 of the Customs Act. On further
verification it was found that the checked in baggage had
been sent to Chennai along with passenger and no baggage was
pending in the custody of airways either in Chennai or in
Bangkok. From the above basic materials, the State
Government being satisfied that the detenu had involved in
smuggling goods, considered necessary to pass the order of
detention.
3. In the Habeas Corpus Petition as originally
filed and as per the additional grounds permitted to be
taken, the following contentions are raised :-
(1) The detenu was arrested on 27.6.2006 and when he
was produced before the Magistrate, he was remanded to
judicial custody till 11.7.2006, which was subsequently
extended upto 8.12.2006, and the detenu was in custody at
the time when the order of detention was passed and thus
there was no reason or compelling necessity to pass the
order of detention and such order has been passed on non-
application of mind.
(2) The incident took place on 26.6.2006 and the
detention order was passed on 28.7.2006, after a lapse of
about five weeks, which indicated that there was no
compelling necessity to pass the order of detention.
(3) While passing the order of detention, the detaining
authority has taken into consideration the market value of
the goods, but the detaining authority has failed to supply
the relied on documents for the purpose of ascertaining such
value.
(4) In the telegram sent on 27.6.2006, it was stated
that the detenu was produced before the learned Additional
Chief Metropolitan Magistrate, Economic Offences-I, Egmore
on 27.6.2006 and was remanded and detained in Central
Prison, but the initial order of remand indicates that the
detenu was produced before the Magistrate at his residence
and, therefore, there was contradiction between those two
documents, by which the detenu and his family members were
confused.
(5) The detenu’s mother tongue was Punjabi and he knows
only Punjabi and Hindi and he does not know to read and
understand English, but the order of detention, grounds of
detention and the booklet supplied to the detenu on
29.7.2006 and 1.8.2006 were in English and since the detenu
had no working knowledge in English, he was handicapped in
making an effective and meaningful representation.
(6) The detenu had sent a retraction letter on
5/6.7.2006. Subsequently, he made a representation
requesting the detaining authority to supply all the
documents in the language known to him, but such request was
not complied with. The sole incident cannot be taken as a
ground for passing the order of detention.
(7) The representation dated 4.8.2006 sent by the
brother-in-law of the detenu to the Central Government and
the State Government through speed post had not been
considered and there was unexplained and unreasonable delay.
(8) The detenu had sent a pre-detention
representation/retraction letter on 7.7.2006 addressed to
the Law Minister of the State, Chennai through the
Superintendent of Central Prison, but such pre-detention
representation had not been placed before the detaining
authority while passing the detention order. Subsequently,
many representations were sent to the Advisory Board and the
State Government, which were received, but were not
considered.
4. In the counter affidavit filed on behalf of the
Respondent No.1, sworn to by the Deputy Secretary to
Government, Public (Law and Order) Department, it has been
stated inter alia that the order of detention was passed on
the materials available on record and on application of
mind. It has been stated that the detenu had received the
copy of the seizure list by signing in English and the
voluntary statement had also been made by the detenu in
English and such statement had been made voluntarily and not
by force. It has been further stated that even though the
petitioner was a remand prisoner at the time of passing the
order of detention, there is possibility of the detenu being
released on bail and, therefore, there was necessity to pass
the order. There is no delay in passing the order and the
detaining authority had considered all the aspects before
passing the order.
Regarding the grounds taken in the additional
affidavit, it has been stated that pre-detention
representation of the detenu dated 8.7.2006 (7.7.2006 was
corrected as 8.7.2006 by the detenu) addressed to the
Minister of Law was in Hindi. This representation was
forwarded to the Minister for Revenue and Law by the
Superintendent, Central Prison and it was received by the
Office of the Minister on 10.7.2006 and the same was
forwarded to the Tamil Development and Culture Department
(Translation Wing) for translation of the Hindi
representation into English. Home Department got the
representation translated into English and came to know that
the subject relates to COFEPOSA and forwarded the
representation to Public (Law and Order) Department. The
Public Department received the representation with English
translation on 19.10.2006 and rejected the same on
3.11.2006, which was subsequently served on the detenu on
4.11.2006. The other representations made by the detenu had
been duly considered and rejected by the appropriate
authorities. Since the pre-detention representation with
translation was received only on 19.10.2006, there was no
possibility of placing the pre-detention representation
before the detaining authority. Further details have been
furnished regarding the disposal of other representations.
5. At the time of hearing, learned counsel
appearing for the petitioner has concentrated on the aspect
relating to non-consideration of the pre-detention
representation and thereafter careless delay in dealing with
such representation.
6. By a series of decisions of Madras High Court,
it has been held that any pre-detention representation made
by the detenu or on his behalf should be considered by the
detaining authority and if for some reason it is not
possible to consider such representation before the order of
detention is passed, such representation should be
thereafter considered as expeditiously as possible.
7. In (1992)2 CTC 490 (T.M. SYED ALI v . STATE OF
TAMIL NADU), a Division Bench of this Court held that
representation made denying the very occurrence before
passing of the order of detention is required to be
considered by the detaining authority. In the said case it
was also indicated that it is the duty of the functioning
authority to forward such representation to the Government
and failure to consider such representation would vitiate
the order of detention.
8. Similar view has been taken in several
decisions subsequently and it is not necessary to multiply
the authorities save and except referring to a very recent
Division Bench decision of this Court in (2006) 1
M.L.J.(Crl.)131 (P.M.S. MOHIADEEN SAHIB v. STATE OF TAMIL
NADU), wherein the ratio of the decision in (1992)2 CTC 490
(cited supra) has been followed.
9. In the present case, such pre-detention
representation was admittedly received in the Office of the
Law Minister on 10.7.2006. It is of course true that such
representation was in Hindi. According to the learned Addl.
Public Prosecutor, since such representation was in Hindi
and since at the time of receipt of the representation the
detenu was a remand prisoner, such representation was
forwarded to the Home Department and thereafter the English
translation of such representation was made available only
on 19.10.2006 and as such there was no occasion to consider
such representation before 28.7.2006. He has also contended
that the representation was addressed to the Law Minister,
which was not appropriate.
10. From the materials on record, it appears that
the detenu had emphasised about such earlier representation
in his further representations dated 4.8.2006 and 23.9.2006.
Such subsequent representations dated 4.8.2006 and 23.9.2006
were rejected on 18.9.2006 and 9.10.2006 respectively by
stating that no pre-detention representation had been
received. It appears that except stating that the
representation received in the office of the Law Minister
was forwarded to the Home Department and the Home Department
forwarded the same to the Tamil Development and Culture
Department for translation and the English translation was
made available on 19.10.2006 (after a gap of about 3 months
and 10 days), nothing has been indicated as to what
transpired between 10.7.2006 and 19.10.2006.
11. Learned counsel appearing for the respondents
has placed reliance upon the decision reported in (2006) 2
M.L.J.(Crl.) 745 (D. ANURADHA v. JOINT SECRETARY AND
ANOTHER). In the said case, the order of detention was
under Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act. Several representations had been
made by or on behalf of the detenu from time to time. Four
of the representations had been disposed of without any
unreasonable or unexplained delay. However, there was delay
of 119 days in disposing of fifth representation, which had
been made to the Central Government in Tamil. By taking
note of the explanation furnished, the Supreme Court
observed that delay was caused mainly due to non-
availability of the translated copy of the representation
which has been made in Tamil and it had been taken about 3
months for getting translated. As soon as the translated
copy was received, the authorities had taken urgent steps to
dispose of the same within a very short period.
12. It is no doubt true that since the
representation was written in Hindi, it was required to be
translated and the translation may take some time. However,
it was incumbent upon the respondents to explain those
aspects by giving more particulars and even by giving
affidavits of the persons concerned. It is difficult to
envisage that it took more than 3 months to translate a
representation of about 3 pages. It is of course true that
initially at the time when the representation was received
the detenu was a remand prisoner and there was no order of
detention and the authorities might have taken their own
time. However, it is apparent from the subsequent
representations dated 4.8.2006 and 23.9.2006 that it had
been emphasised about the pre-detention representation. At
that stage, at least the authorities should have tried to
find out as to what happened to the pre-detention
representation dated 7/8.7.2006. On the other hand, the
authorities rejected such subsequent representation by
simply stating that no such pre-detention representation had
been received. Instead of bothering to find about the
pre-detention representation, of which representation was
made repeatedly by the detenu, the authorities exhibited a
rather careless and indifferent attitude by simply stating
that pre-detention representation had not been received.
13. In several decisions of the Supreme Court as
well as the Division Bench of this Court it has been laid
down that a representation made by or on behalf of the
detenu must receive a real and proper consideration. Many
of such decisions have been noticed and followed by the
Division Bench in (2006) 1 M.L.J.(Crl.) 131 (already cited),
wherein after noticing such authorities it has been
observed:-
“13. In the light of the above principles, we
are of the view that though the detenu has made
pre-detention representation on 4.7.2005, which
was received by the Superintendent, Central
Prison, Chennai-9, and forwarded to the addressee,
Law Minister, Government of Tamil Nadu on 5.7.2005
itself, in view of the fact that the same had been
reiterated in the representation dated 21.7.2005,
the detaining authority ought to have verified the
earlier representation and passed the order after
due consideration. We are satisfied that the
detaining authority failed to consider these
relevant aspects and the detenu is entitled to
succeed.”
14. In view of the above, keeping in view the well
settled principle that a representation (whether pre-
detention or post-detention) is required to be considered by
application of mind, we are constrained to come to the
conclusion that the order of detention got vitiated.
15. Apart from the above, learned Senior Counsel
for the petitioner has raised the contention relating to non-
supply of documents in the language known to the detenu,
namely, Hindi. This aspect has been challenged by the State
Government by stating that the detenu himself has written
the voluntary statement in English. It is contended by the
Senior Counsel that the detenu was not very much conversant
with English and he had merely copied certain type of
questions in capital letters in English which would indicate
that the voluntary statement was extracted and also would
indicate that the detenu was not very much conversant with
English. However, since the order of detention has been
found to be vitiated on account of the fact that pre-
detention representation had not been placed before the
appropriate authority and thereafter it has been considered
belatedly, it is not necessary to go into this aspect.
16. In course of hearing, learned Addl. Public
Prosecutor has submitted that the detenu has deliberately
filed the representation in Hindi with a view to mislead the
authorities and take advantage which should not be
permitted. In this connection, he has referred to the
decision of the Supreme Court reported in (2006) M.L.J.
(Crl.) 745 (D. ANURADHA v. JOINT SECRETARY AND ANOTHER).
17. Admittedly, the detenu is a resident of Punjab
and even according to his confessional statement he had
studied only upto class X. It is obvious that his knowledge
in English may not be of high order. Naturally one would
expect that the detenu would make representation in the
language in which he is more familiar rather than in
English. Such representation had been made by the detenu
himself. It is no doubt true that some of the subsequent
representations were in English made through other
relations. But, merely because the detenu had made a
representation in Hindi it cannot be concluded that he was
adopting a tactic of misleading the State to take advantage
of any loophole in future. The decision of the Supreme
Court relied upon by the State was passed on completely
different set of facts and the ratio of such decision cannot
be made applicable to the present case.
18. For the aforesaid reasons, the Habeas Corpus
Petition is allowed and the order of detention is set aside
and the detenu is directed to be set at liberty forthwith
from the custody unless he is required in connection with
any other case.
dpk
To
1. The State of Tamil Nadu,
Rep. by the Secretary to the
Government, Public (SC)
Department, Fort St. George,
Chennai 600 009.
2. The Secretary to the Government,
The Union of India,
Ministry of Finance,
Department of Revenue (Cofeposa Unit),
New Delhi.
3. The Superintendent,
Central Prison,
Chennai 600 003.
4. The Public Prosecutor, High Court, Madras