IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/04/2005
CORAM
THE HON'BLE MR JUSTICE P. SATHASIVAM
AND
THE HON'BLE MR JUSTICE S.K. KRISHNAN
H.C.P. NO.1305 OF 2004
Mrs. Sharmila ... Petitioner
-Vs-
1. State of Tamil Nadu
rep. by Secretary to the
Government, Public (SC)
Department, Fort St. George
Chennai - 600 009.
2. Union of India
rep. by Secretary to the
Government, Ministry of
Finance, Department of Revenue
COFEPOSA Unit
New Delhi. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Habeas Corpus calling for the records of
the first respondent made in G.O.No.SR./1230-3/2004 dated 13 .10.2004 and
quash the same and set at liberty the detenu Jakkariah son of Abdul Jabbar
presently undergoing detention in Central Prison, Chennai.
!For Petitioner : Mr. B. Kumar
Senior Counsel
for Mr. B. Sathish Sundar
^For R1 : Mr. A.Kandasamy, Addl. Public Prosecutor
For R2 : Mrs. Vanathi Srinivasan, ACGSC
:O R D E R
(Order of the Court was made by P. SATHASIVAM, J.)
The wife of the detenu by name Jakkariah challenges the detention
order dated 13.10.2004 issued under Section 3(1)(i) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act
52 of 1974).
2. Heard the learned Senior Counsel for the petitioner as well as the
respondents.
3. Though several contentions have been raised questioning the
impugned order of detention, the learned Senior Counsel for the petitioner at
the first and foremost by drawing our attention to the details, namely, the
value of the goods seized from the baggage of the detenu, would contend that
in the light of conflicting statement in para-(vi) and (vii) of the Grounds of
Detention, the impugned order of detention is liable to be quashed on the
ground of total non-application of mind. While elaborating the said
contention, the learned Senior Counsel for the petitioner has brought to our
notice that in Ground No.( i), it is specifically stated that the detenu had
declared (only a hand baggage and the value of the goods as Rs.15,000/-). In
Ground No.(vi) after referring various provisions of the Foreign Trade (
Development & Regulation) Act, 1992, Customs Act, 1962 and Foreign Trade
Policy for 2004-2009, it is stated that the goods of foreign origin in trade
quantities valued at Rs.6,68,715/- (CIF) that were seized from baggage. In
the next paragraph, namely, Ground No.(vii), it is stated that the CIF value
of the goods of foreign origin in trade quantities seized from the baggage
brought by the detenu is Rs.15,80,365/- and the market value of the same is
Rs.24.50 lakhs approximately. Insofar as the amount of Rs.15,80,365/referred
to in Ground No.(vii), paragraphs 6 and 7 of the paper book supplied to the
detenu show the details and the total value mentioned therein is
Rs.15,80,365/-. The same has been correctly stated in Ground No.(vii) of the
Grounds of Detention. Insofar as the value of Rs.6,68,715/-(CIF) mentioned in
paragraph-(vi) of the Grounds of Detention, there is no explanation or detail
how the said amount has been arrived by the Detaining Authority. In the
absence of any explanation or information or detail, as rightly contended by
the learned Senior Counsel for the petitioner, on seeing the Grounds of
Detention, undoubtedly, the detenu would get confused. Even during the course
of argument, when this was brought to the notice, the learned Additional
Public Prosecutor fairly stated that the value mentioned in Ground No.(vi) is
not correct and is not in a position to explain the same. In such
circumstance, as rightly contended by the learned Senior Counsel for the
petitioner, in the absence of proper explanation for giving two figures in
Ground Nos.(vi) and (vii) in the Grounds of Detention, we are of the view that
the above factual details exhibit the total nonapplication of mind on the part
of the Detaining Authority. On this ground, the impugned order of detention
is liable to be quashed.
4. It is also relevant to note that we have already referred to the
statement of fact made by the Detaining Authority in Ground No.(i), namely, in
the customs declaration, the detenu had declared only a hand baggage. On the
other hand, a perusal of declaration made by the detenu, which finds place at
page No.12 of the typed set supplied to the detenu shows that the detenu has
not filled up the columns 3 and 4 , namely, number of checked in baggage and
number of hand baggage. In such circumstance, it is presumed that the
statement of fact made in the grounds of detention does not reflect the true
statement made by the detenu. This has also not been explained before us.
5. In the light of the above discussion, the impugned order of
detention dated 13.10.2004 is liable to be quashed. Accordingly, the same is
quashed and the detenu, namely, Jakkaraiah is directed to be set at liberty
forthwith from the custody, unless he is required in connection with any other
case.
Index : Yes
Internet : Yes
kb
To
1. The Secretary to the Government
The State of Tamil Nadu
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 of Central Prison
Central Prison, Chennai.
(in duplicate for communication to detenu).
4. The Public Prosecutor
High Court, Madras.