JUDGMENT
K.P. Sivasubramaniam, J.
1. The petitioner who is the detenu himself, seeks release by quashing the order of detention dated 13.08.2002.
2. A perusal of the detention order discloses that on 3.7.2002, the detenu who is a holder of Indian Passport, arrived at Anna International Airport, Chennai, from Singapore. After completing immigration formalities, the detenu collected two check-in baggages and also brought one hand baggage. He approached Customs Table No. 16 along with the above three pieces of baggage and declared to the Superintendent of Customs that he was in possession of 20 Cellular phones and other electronic goods valued at Rs.60,000/-. Not being satisfied with the declaration and on suspicion that he was in possession of goods much in excess of declared quantity and value, he was checked by the Air Intelligence Unit for detailed examination. In the presence of two independent witnesses, the baggage was checked. This resulted in recovery of 100 numbers of Panasonic cell phones and four pieces of Panasonic digital handy cam with accessories, 20 numbers of cordless phones adaptor, three numbers of Pioneer car stereos and 20 numbers of Panasonic cordless phones. As the detenu did not have any valid document to support the possession of the said goods, and as the goods were found to be in commercial quantity, much in excess of the declared quantity, the goods were seized under the provisions of the Customs Act under Mahazar dated 3.7.2002.
3. Thereafter, the detenu gave a voluntary statement on 3.7.2002. According to the first respondent, he had admitted that it was an offence to smuggle the goods and he had committed this offence for monetary consideration. The first respondent would further state that by his conduct he has evaded customs duty and the detenu had rendered himself liable for proceedings under the Customs Act and the Foreign Trade (Developments and Regulations) Act, 1992 and also for confiscation. As true declaration had not been made as required under Section 77 of the Customs Act, 1962, it was concluded that the detenu had attempted to smuggle electronic goods. Thereafter the detenu was arrested and produced before the Additional Chief Metropolitan Magistrate, E.O.-II, Egmore, Chennai, who remanded him to judicial custody up to 17.7.2002. Further action was taken to search his residential premises at Salem and a telegram intimating the arrest of the detenu was sent to his mother on 4.7.2002 .
4. It is stated that on behalf of the detenu his counsel had sent a representation on 8.7.2002 addressed to the Commissioner of Customs, Chennai, disputing the value of the goods and requested revaluation of the goods. The Customs Department in its reply dated 15.7.2002 stated that the value adopted by the Department was as per the guideline value.
5. A bail petition was filed by the petitioner on 3.7.2002 stating that he was innocent and he had not committed any offence and that the earlier statement made by him was under threat and intimidation and thereby he was retracting the said statement. Counter was filed on 12.7.2002 and bail petition was dismissed on 15.7.2002. Another bail petition was filed in Crl. M.P. No. 195 of 2002 which was also dismissed on 6.8.2002. According to the first respondent, the total CIF value was Rs.7,16,000/- and the market value was Rs.10,74,000/-.
6. Having regard to the aforesaid circumstances, the Detaining Authority was subjectively satisfied about the need to detain the detenu under the COFEPOSA Act, 1974, and impugned order was passed thereon. Hence, the above Habeas Corpus Petition.
7. Learned counsel for the petitioner had mainly urged the following two grounds for our consideration:
(i) Even before the detention order was passed, the petitioner had sent a representation on 5.8.2002 and 12.8.2002 and had also filed bail application on 9.8.2002. The said bail petition came to be dismissed subsequently. However, in the order of detention which came to be passed subsequently, there is no reference either to the representations dated 5.8.2002 or 12.8.2002 or to the bail petition filed on behalf of the petitioner. Learned counsel submits that he has raised certain important points in the said representations and the bail petition and the same ought to have been brought to the notice of the Detaining Authority and the failure of the Detaining Authority to consider the same would vitiate the order of detention. The Sponsoring Authority ought to have placed them for consideration by the Detaining Authority before passing the impugned order.
(ii) There was unexplained delay in the disposal of the representation dated 16.9.2002 and inasmuch as no counter has been filed H.C.P. requires to be allowed.
8. We have also heard learned Additional Public Prosecutor who submits that in the representation dated 5.8.2002 and 12.8.2002 as well as bail petition filed by the detenu on 9.8.2002, the petitioner has only reiterated the very same grounds raised in the earlier representations dated 8.7.2002 which has been duly considered and disposed of and also referred to in the order of detention. There is no substance in the contention raised by the petitioner. In the context of the alleged delay, learned Additional Public Prosecutor has furnished details of the dates relating to the disposal of the petition and contended that the representation dated 16.9.2002 was disposed of on 3.10.2002, which has taken only 16 days which includes five intervening holidays and hence, there was no delay. We have considered the submissions of both sides.
9. In the context of the submission of the petitioner namely, non-consideration of the representation of the petitioner by the Detaining Authority, reliance is placed on judgment of the Supreme Court in AHAMED NASSAR v. STATE OF TAMIL NADU . We have perused the representation dated 8.7.2002 which has been admittedly considered by the Detaining Authority and reference has been made to the same in the Detention Order itself. We have also perused the representation dated 5.8.2002 and 12.8.2002 as well as bail petition dated 9.8.2002 which is the third bail petition filed by the detenu. We find that in these three documents, the detenu has not raised any new issue which has not been raised by him in his representation dated 8.7.2002. In his representation dated 8.7.2002, the petitioner has dealt with two issues namely, that the confession given by him was secured by threat and coercion and that the valuation by the Customs was exaggerated and that the valuation arrived at by the Customs Department did not reflect the correct valuation. In the representations dated 5.8.2002 and 12.8.2002 as well as bail petition dated 9.8.2002, the detenu has raised the very same issues namely, that the valuation by the Customs was exaggerated and did not represent correct valuation in terms of the Act and Rules. Therefore, we are inclined to hold that no prejudice is caused to the petitioner. The judgment relied on by learned counsel for the petitioner itself would show that it is only when any fresh materials are raised in the later representation they should be duly considered. The following is the extract from paragraph No. 25 of the judgment in AHAMED NASSAR’s case, cited supra, which is very much relied on by counsel for the petitioner.
“The aforesaid two letters, viz., dated 23rd April and 19th April, contains factual assertions not only retraction of his earlier alleged confession but other matters. So far the retraction of confession by the detenu, we accept the stand of the respondents that the same was also recorded in the bail application dated 1st April, 1999 of the detenu which was placed and considered by the detenu which was placed and considered by the detaining authority. But in these letters the stand of the detenu, was that the seized goods are not prohibited goods which passed through the red channel, for which the detenu offered to pay the duty but instead, the officer concerned without listening proceeded to arrest him.”
10. The Supreme Court went further to observe that though the issue raised by the detenu might be on merits and that the Detaining Authority might have come to the very same conclusion as the Sponsoring Authority, yet the contents are relevant which could not be withheld by the Sponsoring Authority and that there was an obligation cast on the Sponsoring Authority to place it before the Detaining Authority which had not been done on the facts of the case before the Supreme Court.
11. The portion underlined in the above extract will show that the Supreme Court took into account that as far as the retraction of confession was concerned, the stand of the respondents was accepted, namely, that the issue was dealt with in the bail petition which had been earlier considered by the Detaining Authority. The above circumstance would indicate that the Supreme Court did not feel it necessary that the Detaining Authority should deal with the very same issues which have already been dealt with reference to earlier representations/bail petitions etc. As stated earlier, perusal of the Detention Order would disclose that the issue relating to the alleged exaggerated valuation by the Customs and the retraction had already been raised in the representation dated 8.7.2002 and the said issue has been dealt with by the Customs Department and replied in their letter dated 15.7.2002. The said details are given in the Detention Order itself and the copy of the representation dated 8.7.2002 as well as the reply of the Department dated 15.7.2002 have also been furnished to the petitioner in the booklet.
12. To repeat what has already been stated above, we have perused the representation dated 5.8.2002 and 12.8.2002 as well as the contents of the bail petition dated 9.8.2002. In the representation dated 5.8.2002, counsel for the detenu has raised the very same issue of valuation by making reference to the judgment of the Supreme Court in M/s. EICHER TRACTORS LTD., HARYANA v. COMMISSIONER OF CUSTOMS, MUMBAI (A.I.R.2001 S.C., 196) and other statutory provisions under the Customs Act in support of his contention that the valuation arrived at by the Customs was not correct. In the representation dated 12.8.2002 also the petitioner has raised the very same issue of valuation and has referred to the Bill of Entry dated 24.5.2002. This was followed by the letter of Government of India dated 20.8.2002 dealing with the representation dated 5.8.2002 and rejecting the grounds raised by the detenu. In the context of the representation dated 12.8.2002, by letter dated 21.8.2002, the detenu was called upon to furnish a copy of Bill of Entry dated 24.5.2002. We have also perused the bail petition filed on 9.8.2002 in which also the detenu has raised only the issue of valuation of the Department being exaggerated.
13. Therefore, we are convinced that in the subsequent representations, the detenue has raised only the very same issues which he had raised earlier in the representation dated 8.7.2002 which have been duly dealt with by the Detaining Authority in the order of detention itself. Therefore, there is no need for the Detaining Authority to have separately considered the subsequent representations raising the very same contentions.
14. After the judgment was reserved, learned counsel for the petitioner had circulated the following two judgments in support of his contentions regarding the point discussed above.
(i) H.C.P. No. 362 of 2002 dated 30.09.2002.
(ii) H.C.P. No. 313 of 2001 dated 28.09.2001
15. We have perused the said two judgments and find that the conclusions arrived at thereunder have no relevance to the facts of the present case. In the first case, the learned Judges dealt with the situation where the letter of retraction was not placed before the detaining authority before he passed the order of detention. It was also a case where the retraction letter was not placed before the Advisory Board. The defence taken by the respondents was that at a later point of time the detenu has sent a representation containing similar statements which were found in the letter of retraction and that the representation having been taken into consideration by the concerned authorities, the non consideration of the letter of retraction will not vitiate the order of detention. In the present case, we are not confronted with that situation. The issue of retraction as well as the valuation by the Customs Department have been raised in the representation dated 8.7.2002 itself and had been dealt with by the detaining authority. Letters have also been placed before the Advisory Board and hence the said judgment has no relevance to the facts of the present case.
16. As regards the second judgment, the detaining authority had relied on the statement of a co-passenger for arriving at his subjective satisfaction. The statement of the co-passenger however, was retracted and the said letter of retraction was not placed before the detaining authority. Hence, the Division Bench rightly held that the Sponsoring Authority ought not to have kept back the retraction letters. We fail to understand as to how the said facts could be compared with the facts of the present case where the detaining authority was fully aware of the retraction which was contained in the representation dated 8.7.2002 itself.
17. Hence, we fail to understand as to how the above two judgments can be applied to the facts of the present case.
18. Further, it should also be noted that the detention order has been passed on 13.8.2002 whereas the two representations had been sent by the detenu/his counsel only within a period of one week before the detention order was passed. Therefore, it will not be reasonable to expect that there could be any reference to the same in the order of detention.
19. Even otherwise, we have perused the file. The representations have been duly considered not only by the Detaining Authority, but also have been placed before the Advisory Board. The file discloses that the bail petition dated 9.8.2002 has been furnished before the Advisory Board as well as the representation dated 5.8.2002, 12.8.2002 and the replies by the Department dated 20.8.2002 and 21.8.2002 have also been filed before the Advisory Board. Hence, we do not find any substance in the submission of learned counsel for the petitioner that the said representation and the last bail petition were not duly considered by the Government or the Advisory Board before the confirmation order was passed. Consequently, we do not find any merit in the first point raised by the petitioner.
20. Coming to the second point raised by the petitioner in the context of delay, though no counter has been filed, learned Additional Public Prosecutor has furnished particulars relating to the process of disposal of the representation dated 16.9.2002 which are as follows:-
"Representation dated 16.09.2002 was
received by the Government on : 19.09.2002
Parawar remarks called for from the
Customs Department on : 19.09.2002
Saturday : 21.09.2002
Sunday : 22.09.2002
Reminded the Customs Department on : 23.09.2002
Remarks received from the Customs
Department on : 24.09.2002
File sent to the Public (SC) Department on : 25.09.2002
File received back from the Public (SC)
Department on : 25.09.2002
Circulation note was put up on : 26.09.2002
Deputy Secretary to Government Public
(Law and Order) Department considered the
representation on : 27.09.2002
Saturday : 28.09.2002
Sunday : 29.09.2002
Secretary to Government, Public
Department considered the representation on : 30.09.2002
Secretary,
Law Department considered the
representation on : 01.10.2002
Gandhi Jayanthi (Holiday) : 02.10.2002
The Honorable Minister for Law considered
and rejected the representation on : 03.10.2002
Reply sent to the detenu on : 03.10.2002
Detenu received the letter under
acknowledgement on : 04.10.2002"
21. The above details disclose that the entire process was over by 14 days namely, date of receipt of representation and the order of rejection dated 3.10.2002. It is also pertinent to point out that in between there are two Saturdays and Sundays and a holiday on 2.10.2002 being the birth day of Mahathma Gandhi. Excluding the said five days, the entire process had taken only eight days and there can be no second opinion over the conclusion that the representation had been very expeditiously considered. However, learned counsel for the petitioner was inclined to raise a theoretical submission which is totally irrelevant to the facts of the present case. He would rely on the judgment of the Supreme Court in RAJINDER v. COMMR. OF POLICE (1994 Suppl. (2) S.C.C., 716). In that case, the representation was dated 12.2.1993 came to be rejected on 7.4.1993. Therefore, their Lordships felt that the delay was exfacie not acceptable unless and otherwise properly explained. Therefore, there was an obligation on the part of the State to explain the delay. However, in view of the failure of the Government to file a detailed counter explaining the delay, the Supreme Court held that due to the failure on the part of the respondent to properly explain the delay, the detenu’s appeal had to be allowed. The Supreme Court took notice of the fact that the length of period taken for disposal was long as well as there was no explanation for the delay between 6.3.1993 and 18.3.1993. It was only in those circumstances, the Supreme Court specifically pointed out that there was ex facie delay which requires explanation which was not forthcoming from the Department. Reference was also made to the judgment of the Supreme Court in SELVARANI v. STATE OF TAMIL NADU (CRIMINAL APPEAL No. 1330 of 2002). A perusal of the judgment shows that the same issue arose for consideration as in 1994 Suppl. (2) S.C.C., 716, supra. and in fact, Their Lordships have merely extracted the observations in the said judgment in RAJINDER’s case and have not stated anything different from the said views.
22. Therefore, the aforesaid two judgments cannot be applied to the facts of the present case in which there is no ex facie delay. On the other hand, the representation has been disposed of in the quickest possible manner considering that remarks had to be called from the Customs Department and after the remarks had been received, the file was circulated to all the relevant authorities. Therefore, we do not find any ground in the allegation that the consideration of the representation was belated causing any prejudice to the detenu.
23. In the result, there are no merits in the grounds raised by the petitioner and the above H.C.P. is dismissed.