IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03/12/2002
CORAM
THE HONOURABLE MR.JUSTICE V.S.SIRPURKAR
AND
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
H.C.P.No.735 of 2002
Izadeen .. Petitioner
-Vs-
1. The State of Tamil Nadu
rep. by the Secretary to Govt.,
Public (SC) Department
Fort St. George, Chennai.
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.
3. The Superintendent of Central Prison
Central Prison, Chennai-3. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India for
issue of Writ of Habeas Corpus for the relief as stated therein.
For Petitioner : Mr.K.A.Jabbar
For Respondents : Mr.I.Subramaniam
Public Prosecutor
for Respondents 1 and 3
Mr.C.Kulandaivelu
for Mrs.Vanathi Srinivas
A.C.G.S.C.,
for second respondent
:ORDER
(Order of this Court made by V.S.Sirpurkar,J.)
The petitioner has challenged the order passed under the provisions of
Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, dated 24.1.2002, ordering the detention of the
detenu.
2. The detenu was a passenger travelling from Colombo. After
reaching Chennai Airport on 28.12.2001, he collected a checked in baggage
bearing tag No.UL 281926. He had come by Srilankan Airlines Flight No.UL 121.
This tag was in the name of one Noor Mohammed. The detenu started walking
through the green channel. He was intercepted by an Intelligence Officer on
suspicion that he was carrying some contraband. In the search, 10 Umbrellas
were found and in the rods of those umbrellas as many as 238 small metallic
yellow rods made of gold were found. They amounted to 1630 Grams of gold
worth about Rs.7,40,834/-.
3. His statement was recorded, where he admitted that the bag, though was in
the name of Noor Mohammed, belonged to him. His voluntary statement was
recorded on the same day where he stated that he had visited India four or
five times earlier; that he knows Sinhalese and Tamil to read and write; that
he used to bring other materials like cloves and soaps, and used to carry
clothes from here; that he had met a person named Noor Mohammed in Colombo
Airport and he requested him to check in his baggage in the name of Noor
Mohammed along with his two baggages and for this he was paid Rs.500/-.
Accordingly, he had, as per the request of Noor Mohammed, registered his
baggage along with Noor Mohammed’s two baggages in the name of Noor Mohammed
and gave the luggage tag. He then admitted that he took the flight to Chennai
and in Chennai Airport he collected his one checked in baggage. Further
statement was also recorded on the same day wherein he admitted his connection
with Noor Mohammed. On these grounds, the order seems to have been passed
rendering him to be a smuggler and with a view to prevent him from taking part
in the smuggling activities.
4. It is significant that in paragraph (v) of the detention order it is
stated: “No complaint of ill treatment was made by you. Your Srilankan
passport was ordered to be retained to judicial custody.”
5. After the order was passed, the petitioner who was in the judicial
custody and who was trying to obtain bail all through by making applications
after applications was detained under the preventive detention. There were
efforts on his part to retract the statement which he had given and he also
sent a representation to the authorities. It is this order of detention which
is challenged in the present writ petition.
6. Mr.K.A.Jabbar, learned counsel for the petitioner urged that this
was a case of the failure on the part of the detaining authority to apply mind
to the fact that the passport of the petitioner was retained and therefore,
the order is a result of non-application of mind and non-consideration of the
material facts.
7. In support of his argument, the learned counsel points out that
the fact that the passport was ordered to be retained to judicial custody was
undoubtedly noted by the detaining authority. The learned counsel,
painstakingly, took us through all the grounds and pointed out that after this
fact of the detention of the passport was noted, the concerned authority has
further noted in paragraph (xii): “The Customs in their reply dated 23.1.2002
addressed to your brother Naushad have stated that you had given in your
voluntary statement immediately after the seizure, which is in your own hand
admitted that the baggage belonged to you, though it was booked in the name of
Thiru Noor Mohammed; that you had travelled together with Noor Mohammed number
of times to Colombo; that a copy of the mahazar was given to you by the
Customs department; and that the dropping of case proceeding against you
cannot be accepted”.
8. The learned counsel also invited our attention to paragraphs 5 and
6 of the grounds, which are as under:
” 5. The State Government are also aware of the fact that you are in
the Central Prison, Chennai as remand prisoner and there is likelihood of you
being released on bail. The State Government are satisfied that there is
likelihood of your indulging in the above said prejudicial activities again
while on bail and there is a compelling necessity to prevent you from
indulging in such activities. The State Government, therefore, consider that
it is necessary to detain you under Section 3(1)(i) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
6. The State Government are also satisfied that on the facts and materials
mentioned above, if you are released on bail, you will indulge in such
activities and that further recourse to normal criminal law would not have the
desired effect of effectively preventing you from indulging in such
activities. The State Government, therefore, consider that it is necessary to
detain you under Section 3(1)(i) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 with a view to preventing you
from smuggling of goods in future.”
9. The learned counsel, however, points out that there is absolutely
nothing in the whole grounds to suggest that the detaining authority was alive
to the fact that the petitioner’s passport was already retained to judicial
custody and therefore, it was impossible for him to have engaged himself in
smuggling activities. According to the learned counsel, the detaining
authority has not considered the effect of the retention of the passport at
all.
10. The gravamen of the contention is that whereas the detaining
authority has specifically stated that the release on bail of the detenu would
give him a further opportunity to do and continue his nefarious smuggling
activities. There is nothing in paragraphs 5 and 6 or for that matter
anywhere to suggest that the effect of the retention of the passport was
considered by the detaining authority. The learned counsel says that this
amounts to non-application of mind, particularly because the whole detention
order is on the ground that the concerned detenu has been travelling in and
out of India only for the purpose of smuggling.
11. The learned counsel very heavily relies upon the decision of the
Supreme Court in RAJESH GULATI Vs. GOVERNMENT OF NCT OF DELHI reported in
2002 (83) ECC 281 (SC). As per this decision, according to the learned
counsel, the Supreme Court found that the withdrawal or retaining of the
passport was a relevant circumstance. The learned counsel pointed out that in
paragraph 15 of the judgment, the Supreme Court has clearly expressed that the
withdrawal of the passport was a relevant circumstance and that the conclusion
drawn by the detaining authority and some statements made while stating the
reasons for detention were in the nature of pure speculation on the part of
the detaining authority. It will be better to quote paragraph 15 of said
judgment:
“… 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 appellant’s passport was
with the customs department and yet he said “but you are likely to travel
clandestinely for the purpose of smuggling”. Now one 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 and it is not necessary to consider the other issues raised by the
appellant.”
12. The learned counsel further pointed out that similar to the
reported decision, the petitioner was also described to be making trips in and
outside India and had been in contact with one Noor Mohammed who was more or
less responsible for the activities of the petitioner. The learned counsel
pointed out the further similarity that the petitioner’s passport was also
withdrawn by the Customs Department and therefore, there was no question of
petitioner being able to conduct any activity much less of smuggling and
therefore, according to the learned counsel there was no basis for the
apprehension of the detaining authority that the petitioner was likely to
continue his smuggling activities or that he could, in fact, continue such an
activity of smuggling.
13. In short, the contention raised is that the detaining authority did not
take into consideration the fact that the whole pattern of the smuggling
activity depended upon the petitioner’s travel in and outside India along with
Noor Mohammed, which undoubtedly require the passport, and since the passport
was retained in the judicial custody by the order of the Court, there was no
possibility of the petitioner continuing with the smuggling activity and that
this suggestion should have been apparent in the grounds stated in support of
the detention order.
14. As against this, the learned senior counsel and Public
Prosecutor, Mr.I.Subramaniam, relied on the decision of the Supreme Court in
M.AHAMEDKUTTY Vs. UNION OF INDIA reported in 1990 SCC (Cri) 258, and more
particularly on paragraph 18 at page 269. The paragraph is in the following
terms:
“… 18. The next submission of counsel was that the detaining authority
should have realized that the seizure of the detenu’s passports was by itself
sufficient to restrain the detenu’s smuggling activities, if any, and
refrained from passing the order of detention. We see no force in this
contention. This was no doubt one of the factors that the detaining authority
should have taken (and did in fact take) into account but it was for him to
assess the weight to be attached to such a circumstance in arriving at his
final decision and it is not open to us to interfere with the merit of his
decision. We, therefore, reject his contention of Mr.Vaidyanathan.”
15. The learned senior counsel says that the detaining authority was
undoubtedly aware of the fact that the passport was impounded or retained in
the judicial custody, as the case may be, by the Department, and if, in spite
of that, the detaining authority chose to pass the order of detention, then it
must be presumed that the detaining authority had taken into consideration
this factum of the seizure of the passport in judicial custody and in spite of
that it was satisfied in favour of the need of the detention.
16. The learned Public Prosecutor also expressed that if the
contention of the learned counsel for the petitioner is accepted, it would be
a thumb-rule that in all the cases involving smuggling where passport is
impounded or where the detenu is deprived of his passport, there would be no
question of ordering any preventive detention.
17. Considering the rival submissions, we are of the clear opinion
that in this case there is a specific pattern of smuggling described in the
grounds. That pattern of smuggling is to be seen in the statement of the
detenu to the effect that he had travelled four or five times in and outside
India either with or without Noor Mohammed and that he used to carry the
contraband goods only at the instance of Noor Mohammed. This suggests that
the activity of smuggling, at least in the case of the petitioner, was
essentially connected with the travels in and outside India. There is no
other activity either suggested or attributed to the petitioner. If this was
so, then while making up the mind for passing the order, it was undoubtedly
essential for the detaining authority to say something about the passport
having been impounded and the result of the impounding of the passport by the
Court. Unfortunately, that is not to be seen in either paragraphs 5 or 6 or
for that matter anywhere in the grounds.
18. There is no doubt that in M.AHAMEDKUTTY case, the Supreme Court
held that it was for the concerned authority to weigh this fact one way or the
other. However, we cannot forget the observation of the Supreme Court in that
paragraph itself, which is to the following effect:
“This was no doubt one of the factors that the detaining authority should have
taken (and did in fact take) into account but it was for him to assess the
weight to be attached to such a circumstance in arriving at his final decision
and it is not open to us to interfere with the merit of his decision”.
19. Therefore, the fact of the impounding of the passport or the
detenu deprived of the passport was undoubtedly a very relevant fact. What we
have before us is, only the fact that the passport was retained in the
judicial custody. That, in our opinion, would not be taking into
consideration the result of the deprivation of the detenu of his passport. In
our opinion, the concerned authority should have been more elaborate and
should have shown that it had applied its mind to this particular
circumstance. When we see paragraphs 5 and 6 on page 7 of the detention
order, all that is stated is that though the petitioner was in custody, he was
likely to be released on bail and if he was released on bail, he was bound to
indulge in such activities and that further recourse to normal criminal law
would not have the desired effect to effectively prevent him from carrying on
with these activities. Therefore, the most relevant fact that weighed with
the detaining authority to take the decision to detain was the likelihood of
the petitioner to be released on bail. At the same time, when the backdrop of
the detention was a patternised smuggling activity and the deprivation of the
passport was bound to put a complete stop to that pattern, it was imperative,
in our opinion, for the detaining authority to take that fact also into
consideration and there is nothing in the grounds that that fact has been
taken into consideration. Therefore, in our opinion, in the facts of this
case, the retaining of the passport was of paramount importance and it was
liable to be taken into consideration and not having taken that into
consideration, the detaining authority has failed to take into consideration
the very material fact, which has affected his thinking process and ultimately
the decision. We hasten to add that we should not be taken to mean that in
all the cases where the passport is impounded, the mentioning about the same
is a must. We are particularly taking this view, in view of the patternised
smuggling activity in this case. Even a cursory look at the grounds would
suggest that the detaining authority has not applied its mind to this vital
fact of the deprivation of the detenu from his passport. In that, the
detention order suffers and is vitiated. In view of the fact that we are
allowing the petition on this ground alone, we do not deem it necessary to go
to any other point and the learned counsel also withdraws his arguments on the
other points. The petition is allowed. The detenu be released forthwith,
unless he is required in any other matter. Rule is made absolute. No costs.
Consequently, connected H.C.M.P.No.164 of 2002 is closed.
Index: Yes
Internet:Yes
sasi
To:
1. The State of Tamil Nadu
rep. by the Secretary to Govt.,
Public (SC) Department
Fort St. George, Chennai.
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.
3. The Superintendent of Central Prison
Central Prison, Chennai-3.
4. The Public Prosecutor
High Court, Madras.