IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14/07/2006
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice V.DHANAPALAN
Habeas Corpus Petition No.1329 of 2005
and
H.C.M.P. No.60 of 2006
K.Gunasekar ... Petitioner
-Vs-
1.The Secretary to Government
Govt. of Tamil Nadu,
Public (Law & Order) Dept.,
Secretariat,
Chennai-9.
2. Union of India rep.
by Secretary to Govt.,
Ministry of Finance, Dept.
of Revenue, COFEPOSA Unit,
Janpath Bhavan,
'B' Wing, 6th Floor,
Janpath, New Delhi 110 001. ... Respondents
Petition under Article 226 of the Constitution of India for the
issuance of a writ of habeas corpus to call for the records of the 1st
respondent made in G.O.No.SR.1/987-2/2005 dated 22.11.2005, quash the same,
direct the respondent to produce detenu K.Gunasekhar, S/o. Krihnakutty Nair,
now detained in Central Prison, Chennai, under the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
and set him at liberty.
!For Petitioner : Mr.R.Shanmugasundaram
Senior Counsel for
Mr. N.Chandrasekaran.
For Respondent 1 : Mr.M.Babu Muthu Meeran
Addl. Government Pleader.
For R 2 : Mr.P.Kumaresan
Addl. Central Govt. Standing Counsel.
:ORDER
P.SATHASIVAM, J.
The petitioner herein challenges the impugned order of
detention, dated 22.11.2005, detaining him under the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
19 74 (COFEPOSA Act).
2. Heard Mr.R.Shanmugasundaram, learned Senior Counsel for
the petitioner; Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor
for R-1; and Mr.P.Kumaresan, learned Additional Central Government Standing
Counsel for R-2.
3. Before proceeding to consider the contentions and counter
arguments advanced on either side, we deem it necessary to refer to the
factual details of the case in a compact manner so as to understand the
controversy involved,
On 08.09.2005, Officers attached to the Air Cargo Intelligence
Unit, Air Cargo Complex, Meenambakkam, Chennai-27, on conducting examination
of brown coloured cardboard cartons on the same day at 19.30 hrs and 20.15
hrs., seized 127 cartons containing soiled/torn/used shoe uppers, attempted to
be exported by M/s.Poppy Leather and Apparels, Coimbatore, and M/s.R.G.Impex,
Mumbai, to the Companies at United Kingdom, by mis-declaring the description
as ‘leather shoe uppers for adults’ and inflating the value so as to claim
Duty Drawback vide Airway Bill Nos.217-6535 5010 (64 cartons) & 217-6343 9390
(63 cartons) and 10 shipping bills, all dated 03.09.2005. The total number of
shoe uppers declared in all the above 10 shipping bills is 31750 pairs whereas
on examination, it was found to contain only 19438 pairs out of which only
3980 were genuine and new show uppers. Likewise, the total value declared in
respect of the consignments under the 10 shipping bills seized by way of two
separate seizures was Rs.1,81,44,064/- with a drawback claim of
Rs.14,15,235/-. The investigation revealed that the detenu herein, viz.,
Gunasekar, has played a vital role in floating several proprietary concerns
and firms in his name and in the names of his associates and employees for the
purpose of claiming Duty Drawback benefits fraudulently by exporting
sub-standard, junk, old and unusable goods having no definite commercial value
by mis-declaring the actual contents/descriptions, quantity and value. Taking
note of the alleged activities of the detenu, the Detaining Authority clamped
upon him the impugned order of detention.
4. At the foremost, learned Senior Counsel appearing for the
petitioner submitted that certain material documents, viz., (a) Customs
Records with regard to Rs.15 Crores of drawback, which has been cleared and
drawn by the detenus group of companies; (b) Bank Statements pertaining
to detenus companies; and (c) Records available with the Department with
regard to the ownership of Poppy Leather and R.G. Impex; were not placed
before the Detaining Authority and withheld by the Sponsoring Authority.
According to the learned Senior Counsel, if those material documents had been
placed before the Detaining Authority, he would not have passed the detention
order. Further, supposing those documents were placed before the authority,
non-supply of the same to the detenu would vitiate the detention order as it
is violative of Article 22(5) of the Constitution.
5. As against the above contention, learned Additional Public
Prosecutor submitted that all the relevant, required and relied upon documents
were furnished to the detenu and there is no truth in the contention.
6. In para No.8 sub clauses (b) (c) and (e) of the affidavit
filed in support of the petition, the petitioner has specifically stated that
he claimed for customs records regarding the amount of Rs.15 Crores of
drawback, which has been claimed and drawn by the detenus group of companies;
Bank statement pertaining to detenus companies; and records available with
the Department with regard to the ownership of Poppy Leathers and R.G. Impex.
In the counter affidavit, with regard to the above claim, the
Additional Secretary to Government, Public (Law and Order) Department, has
stated that the detenus statements and all the relevant documents were placed
before the Detaining Authority to arrive at a subjective satisfaction for
detaining the detenu. It is further stated that the question regarding Duty
Drawback to the tune of Rs.15 Crores was only for the purpose of investigation
and to elicit certain answers and that the questions posed to the detenu are
irrelevant for the purpose of detention. Apart from the above information, in
the grounds of detention, the Detaining Authority has narrated and referred to
the relevant details in pages 1 to 5. The total number of shoe uppers
declared in all the above 10 shipping bills is 31750 pairs whereas on
examination, it was found to contain only 19438 pairs out of which only 3 980
were genuine and new show uppers. It further shows that the total value
declared in respect of the consignments under 10 shipping bills referred to in
the two separate seizures was Rs.1,81,44,064/- with a drawback claim of
Rs.14,15,235/-. The grounds further show that in view of the fraudulent
attempt to claim ineligible drawback amount on the basis of mis-declaration of
contents of the goods sought to be exported and also the quantity and value
thereon noticed consequent to the seizures, further investigation was
conducted and, during the course of such investigation, statements have been
given by certain connected persons. The Detaining Authority, after referring
to the statements of S.Balachandran, Customs Clearing Agent; G.Arumugam, his
Assistant; V.Devendrudu, Clearing and Forwarding Agent; various documents;
voluntary statements of the detenu and one Ravi Laxman, who is in charge of
exports of the companies of the detenu; and after finding that the detenu
played a major role in floating several proprietary concerns and firms in his
name and in the names of his Associates and employees for the purpose of
claiming duty drawback benefits fraudulently by exporting sub-standard, junk,
old and unusable goods, having no definite commercial value, by misdeclaring
the actual contents/description, quantity and value; with a view to prevent
him from indulging in smuggling activities in future, passed the detention
order under the provisions of the COFEPOSA Act. In such circumstances, we are
satisfied that all the relevant records/materials were placed before the
Detaining Authority and that those materials were also supplied to the detenu,
thus, there is no substance in the contention. It is settled law that merely
because some statements have been made and details of certain records were
referred to for the purpose of narrating the sequence of events, the same need
not be supplied to the detenu. In other words, only the relevant and relied
upon documents ought to be supplied to the detenu and, as said earlier, all
the required documents were supplied to the detenu.
7. Learned Counsel for the petitioner next contended that, in
the representation dated 06.12.2005, certain documents were asked for from the
State Government, however, the same were not supplied to the detenu, due to
which, he was prevented from making effective representation. This aspect has
been answered in para No.11 of the counter affidavit, wherein, it is stated
that copy of the fax, as required, has been supplied and the same is available
in page Nos.253 and 254 of the paper book supplied to the detenu. As said
earlier, the question regarding Duty Drawback to the tune of Rs.15 crores was
only for the purpose of investigation and to elicit certain answers; and the
questions posed to the detenu are irrelevant for the purpose of detention.
8. According to the learned Senior Counsel, the detenu, when
questioned with reference to the Bank Accounts relating to his Companies and
transactions, answered that those details were known to his Accountant by name
P.R.Jayaprakash. By pointing out the same, he submits, that being the case,
the said Jayaprakash should have been examined and a statement would have been
obtained from him, however, no such statement was furnished to the detenu.
9. Insofar as the statement of P.R.Jayaprakash is concerned,
it is stated that he has not been located so far by the Department, therefore,
no statement has been recorded from him. In para No.12 of the counter
affidavit, it is stated that the detenus statements were placed before the
Detaining Authority and that there is no need to place whatever records
referred to in the statement before the Detaining Authority. It is not in
dispute that the representation dated 06.12.20 05 of the detenu has been
replied to. In para No.13 of the counter affidavit, the Additional Secretary
to the Government has specifically stated that there is no relevant document
which remains to be supplied to the detenu and that there is no violation of
any provision of the Constitution. In the light of the details furnished in
the counter affidavit and also of the fact that all the relevant materials
have been supplied to the detenu, which are available in the paper book, we do
not find any substance in the above contention.
10. Learned Senior Counsel for the petitioner next submitted
that the confessional statement of Ravi Laxman, though relied upon by the
Detaining Authority, in the bail application, he retracted his statement,
however, the said document containing retraction was not placed before the
Detaining Authority, which vitiates the ultimate order of detention. He
pointed out that in para No.xvi, the Detaining Authority has referred to the
voluntary statement dated 20.09.2005 given before the Customs Officers by
M.P.Ravi Laxman. He also pointed out that, among other materials, the
confessional statement of Ravi Laxman, who was in charge of exports of the
detenus concern, was placed when the Detaining Authority decided to detain
the detenu under the COFEPOSA Act, however, the bail application, wherein, the
said Ravi Laxman retracted, was not placed before the Detaining Authority.
11. A perusal of the grounds of detention shows that the
Detaining Authority, after considering the statement of M.P.Ravi Laxman and
that of the detenu and other employees, arrived at a conclusion that, for the
purpose of claiming Duty Drawback benefits, the detenu fraudulently exported
substandard, junk, old and unusable goods having no commercial value, by
mis-declaring the actual contents, quantity and value. In other words, it is
clear that the Detaining Authority has based his conclusion to detain the
detenu under the COFEPOSA Act not only on the statement of Ravi Laxman but
also the statements of other employees viz., Vasumathi, Sankar, Jayaprakash,
G.Arumugam, Balachandran and Shanmugam, who are working in the company of the
detenu, as well as various other documents. In such circumstances, even if it
is accepted that Ravi Laxman retracted his earlier confession statement in his
Bail Application, we are satisfied that it would not affect the detention
order passed by the authority. In this regard, learned Additional Public
Prosecutor heavily relied upon a decision of the Apex Court reported in 1990 I
SCC page 81 (Madan Lal Anand vs. Union of India). Before the Supreme Court,
it was contended on behalf of the detenu that while the Detaining Authority
had relied upon and referred to the confessional statement of the detenu as
recorded by the Collector under Section 108 of the Customs Act, in the grounds
of detention, the retraction made by the detenu was not placed before the
Detaining Authority for his consideration; and urged that if the retraction
had been considered by the Detaining Authority, his subjective satisfaction
could have been in favour of the detenu and against making an order of
detention. While answering the said contention, Their Lordships have held
thus:-
” 28. It is desirable that any retraction made should also be placed
before the detaining authority. But, that does not mean that if any such
retraction is not placed before the detaining authority, the order of
detention would become invalid. Indeed, this question came up for
consideration before a three Judge bench of this Court in Prakash Chandra
Mehta v. Commissioner and Secretary, Government of Kerala (1985 Supp SCC
144). In that case, a similar contention was made. This Court in overruling
the contention has referred to Section 5-A of the COFEPOSA Act and has
observed as follows: (SCC p.166, para 71)
” Section 5-A stipulates that when the detention order has
been made on two or more grounds, such order of detention shall be deemed to
have been made separately on each of such grounds and accordingly that if one
irrelevant or one inadmissible ground had been taken into consideration that
would not make the detention order bad. ”
29. In the instant case, even assuming that the ground relating to
the confessional statement made by the detenu under Section 108 of the Customs
Act was an inadmissible ground as the subsequent retraction of the
confessional statement was not considered by the detaining authority, still
then that would not make the detention order bad, for in the view of this
Court, such order of detention shall be deemed to have been made separately on
each of such grounds. Therefore, even excluding the inadmissible ground, the
order of detention can be justified. ….. ”
12. Thus, it is clear that, in view of the abundant
materials, merely because the retracted statement of Ravi Laxman/co-accused
was not placed before the Detaining Authority, the subjective satisfaction
cannot be said to be affected and we are satisfied that, on that ground, the
detention order cannot be interfered with. It is settled law that the object
of prosecution of a person in criminal court is punitive and the purpose of
passing orders of detention is intended to be preventive. In the criminal
court, the burden is placed on the prosecution to establish the guilt of an
accused beyond reasonable doubt, whereas, the Detaining Authority can act on
the subjective satisfaction of the materials, and pass orders in order to
prevent the activities prejudicial to the community in general, of the persons
to be detained.
In the light of the above discussion, we are unable to accept the
argument of the learned Senior Counsel for the petitioner.
13. Mr.Shanmugasundaram, learned Senior Counsel, further
submitted that the grounds of detention have to be formulated and the order
has to be passed only after consideration of all the materials together.
Since both the last document as also the order of detention are dated
22.11.2005 and the total pages in the Paper Book running into 414 pages, it
would not have been possible for the Detaining Authority to pass an order on
the same day, that is, on 22.11.2005. With regard to the same, it is
explained in para No.15 of the counter affidavit that the voluminous paper
book running into 414 pages show that all the relevant materials pertaining to
his case were placed by the Sponsoring Authority before the Detaining
Authority. It is further stated that it also belies the claim of the detenu
that some of the documents are not supplied to him. It is also explained that
except the last document, which is dated 22.11.2005, the preceding document at
page No.405 is dated 19.10.2005 and the documents previous to it are all of
various prior dates, hence, the detention order is in no way vitiated on this
aspect of non consideration of all the documents at the same time. As rightly
pointed out in para No.4 of the grounds of detention, the State Government had
taken into consideration all the facts and materials referred to and relied
upon in the grounds, the statements and mahazars. We are satisfied that the
apprehension and allegations of the detenu in this regard are without any
basis or merit.
14. Learned Senior Counsel for the petitioner pointed out
that the Detaining Authority has misread the statement of Balachandran and did
not take into consideration Arumughams statement.
15. These doubts have been specifically clarified in
paragraph No.9 of the counter affidavit. It is stated, ‘Thiru Balachandran in
his voluntary statement given on 10.09.2005 specifically states that as reply
to question No.4, that he had met the detenu once.’ As rightly pointed out, it
is evident that he knows the detenu and there is no contradiction on this
issue since the statement was given by him voluntarily in his handwriting and
when questions were posed to him, he answered them in his own way and this
also shows that it is his voluntary statement. Hence, this cannot be stated
as a contradiction or omission on any account. Likewise, G.Arumugam, in his
voluntary statement given on 09.09.2005 inter alia stated that he had received
the export documents of M/s.Poppy Leather and Apparel and M/s.R.G. Impex from
Gunasekar, the detenu. In this regard, it is pointed out that the detenu was
absconding from the date of seizure, that is, on 08.09.20 05, and he had to be
located by the Customs Officers on their own, which they did on 27.09.2005.
Even the wife of the detenu Tmt. Geetha did not know his whereabouts as given
in her voluntary statement on 20.09.2005. It is stated that due to the said
reason, it was not feasible to produce the detenu before Arumugam on
09.09.2005 since the detenu was absconding. In the light of the explanation
offered in the counter affidavit, we are unable to accept the said contention
also.
16. Learned Senior Counsel for the petitioner further
contended that the pre detention representation sent to the the Secretary,
Government of Tamil Nadu, Home Ministry (SC) Public, Chennai-9, dated
14.11.2005 and 18.11.2005, by registered post by the wife of the detenu was
neither considered nor reflected in the grounds of detention. In paragraph
No.18 of the counter affidavit, the deponent viz., Additional Secretary to
Government, Public (Law and Order), has specifically denied the receipt of
such representation. According to him, no such representation dated
14.11.2005 and 18.11.2005 came to be received before passing of the detention
order. There is no reason to disbelieve the assertion made in the counter
affidavit. Learned Additional Public Prosecutor also produced the original
records and, on perusal of the same, we accept the stand taken by the
Department. Accordingly, we reject the said contention also.
17. Finally, learned Senior Counsel for the petitioner
submitted that, even if the representation reached the authority after passing
of the order of detention, the same ought to have been placed before the
Advisory Board. Reply, dated 15.02.2006, of the State Government shows that
the representation of the detenus wife dated 14.11.2005 sent to the
Government; the representation of the detenu dated 06.12.2 005 sent to the
Government through the Superintendent, Central Prison, Chennai; and all other
documents received by the Government; were placed before the Advisory Board
(COFEPOSA) under Section 8(b) of the COFEPOSA Act. It further shows that the
State Advisory Board, after considering the grounds of detention served on the
COFEPOSA detenu, the enclosures attached to the grounds of detention,
representation of the detenus wife dated 14.11.2005, representation of the
detenu dated 06.12.2005 and all other documents sent by the Government and the
oral representation of the detenu as well as his wife Geetha at the time of
personal hearing before the State Advisory Board on 27.01.200 6 has
unanimously expressed its opinion that there is sufficient cause for the
detention of K.Gunasekar. Thereafter, the Government has also considered the
opinion of the State Advisory Board and agreed with it. In such
circumstances, we are unable to accept even the last argument of the learned
Senior Counsel for the petitioner.
18. We are satisfied that the Detaining Authority, only after
considering all the relevant materials and finding that the detenu has played
a major role in floating several proprietary concerns and firms in his name
and in the name of his Associates and employees for the purpose of claiming
Duty Drawback benefits fraudulently by exporting sub-standard, junk, old and
unusable goods having no definite commercial value by mis-declaring the actual
contents, quantity and value; with a view to prevent him from indulging in
smuggling activities in future, detained him under the provisions of the
COFEPOSA Act. We find that the Detaining Authority has not only considered
all the relevant materials but the detenu was also provided with all the
required and relied upon materials and there is no procedural error or
violation. It is apparent that the detenu was afforded sufficient
opportunities to put forth his defence and that his representation and that of
his family members were also considered and disposed of timely and carefully.
19. In these circumstances, we do not find any error or
infirmity or valid ground for interference. Consequently, Habeas Corpus
Petition fails and the same is dismissed. Connected Miscellaneous Petition is
closed.
JI.
To
1. Secretary to Govt.,
Public (SC) Department,
Fort St. George, Chennai-9.
2. Secretary to Govt.,
Ministry of Finance, Department
of Revenue, COFEPOSA Unit,
Central Economic Intelligence Bureau,
Janpath Bhavan,
‘B’ Wing, VI Floor, Janpath,
New Delhi 110 001.
3. The Superintendent,
Central Prison, Chennai.
4. The Public Prosecutor,
High Court, Madras.