BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/08/2009 CORAM THE HONOURABLE MR. JUSTICE P.MURGESEN AND THE HONOURABLE MR. JUSTICE C.S.KARNAN Habeas Corpus Petition (MD) No.166 of 2009 Udhay Nayar ...Petitioner Vs 1.State of Tamil Nadu rep. by Secretary to Government, Public (SC) Department, Secretariat,Fort St.George, Chennai 9. 2.Union of India rep. by Secretary to Government, Ministry of Finance,(Department of Revenue), New Delhi Central Economic Intelligence Bureau, Janpath Bhavan, 'B' Wing, 6th Floor, Janpath Bhavan, New Delhi 100 001 ...Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus, calling for the records of the first respondent made in letter No.SR.1/097-3/2009 dated 04.03.2009 and quash the same and produce the body of Nitin Nayar son of Madhava Ramachandra Nayar presently undergoing detention in Central Prison, Madurai and set him at liberty. !For Petitioner ... Mr.B.Kumar, Senior Advocate for Mr.R.Anand ^For R1 ... Mr.N.R.Elango,Additional Public Prosecutor For R2 ... Mr.P.Krishnasami, CGSC :ORDER
(Order of the Court is made by P.MURGESEN, J.)
The petitioner, who is the father of the detenu, challenges the order of
detention, dated 04.02.2009, passed by the second respondent against the detenu
viz., Mani @ Estate Mani, under Section 3(1)(i) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of
1974).
2. On 21/22.01.2009, the officers of Directorate of Revenue Intelligence
(DRI), Thoothukudi, conducted search of the premises of M/s.Baywoods Exim, owned
by the detenu in the presence of independent witnesses and in the presence of
one Ramesh, In-charge of the said place and his assistant one Mariappan, based
on specific intelligence to the effect that M/s.Baywoods Exim imports ‘betel
nuts’ by misdeclaring the same as ‘cashew nuts’ in the import documents; that
while moving the containers with the permission of customs under the guise of
being taken to CWC CFS from Thoothukudi Port (import section), the same are
taken to the premises of M/s.Baywood Exim, where the seals of the containers are
break opened and the betel nut bags are unloaded from the containers and
substituted with cashew nut bags and that the containers are then locked with
the substituted duplicate seals kept in the company and taken to CFS for Customs
examination after filing of Bill of Entry; that M/s.Baywoods Exim Firm is
engaged in such evasion of duty in large scale, as higher import duty is levied
for the import of betel nuts and no Customs Duty is levied for the import of
cashew nuts.
3. During search, DRI officers found that a green colour cargo container
No.CLHU-2233488 with one time lock MAERSK ML ID 054 9898, laden on container
lorry KA-01-AC-5457 was about to start and leave the premises; that adjacent to
the above said lorry, a lorry bearing Registration No.KA-01-B-2111 was found
fully loaded with gunny bags containing betel nuts; that bags of betel nuts and
bags of cashew nuts were stacked there on the floor; that on enquiry about the
goods in the lorry and stacked on the floor, the said Ramesh informed that the
betel nut bags loaded in the lorry were the betel nut bags unloaded from the
container CLHU 2233488 after breaking open the seal of the container and that
the betel nut bags stacked on the floor were the balance of the betel nuts off-
loaded from the imported containers three days back and sent out in 8 lorries;
that the cashew nut bags (raw cashew nuts) stacked on the floor were intended to
be substituted in place of the betel nut bags from the import containers
arriving today. During that time, another lorry bearing Registration No.TN-69-P-
9087, laden with container MSKU 2855042 and with one time lock MAERSK ML ID
0626929, driven by one Kumar, entered the said premises; that when the DRI
officers broke open the seal of the aforesaid container, it was found stuffed
with betel nut bags; that on enquiry, the said Ramesh, Mariappan and driver
Kumar informed that the above said container, as per the orders of the detenu
was brought to the above said place for exchange of the goods; that in all, 488
bags of betel nuts weighing 43.470 MTs. and 607 bags of raw cashew nuts weighing
43.490 MTs were found and the officers of DRI seized them under the provisions
of the Customs Act, 1962 under a mahazar; that the officers also seized the
container lorries and the two broken parts of the seal mentioned MAERSK ML ID
0626931 which were found near the container lorries.
4. After recording the statement given by the detenu and one Michael
Charles Boopathy, the Manager of the said Firm and after observing formalities,
the detention order was clamped on the detenu.
5. The learned Senior Counsel appearing for the petitioner raised the
following grounds to set aside the detention order:-
(i) Non supply of retracted Confessional Statement of Michael Charles
Boopathy vitates the detention proceedings.
(ii) Non supply of Phytosanitary Certificate affects the order of
detentin; and
(iii) Furnishing of additional documents after the detention order would
show that the detenu was not given due opportunity to give an effective
representation, and that would vitiate the impugned order of detention;
6. The first ground is that Michel Charles Boopathy allegedly gave a
confession statement before the Customs authorities. Thereafter, when he was
produced before the learned Magistrate, he retracted the confession. So, there
is a retracted confession and that document was not furnished to the detenu to
make effective representation. In support of his contention, he relied on the
decisions reported in 1988 (1) SCC 287 (State of U.P. v. Kamal Kishore Saini)
and 2000 SCC (Cri) 1304 (A.Sowkath Ali v. Union of India and others) and argued
that it is an obligation of the sponsoring authority to place all relevant
documents before the detaining authority to form a subjective satisfaction, and
non-placement of any such relevant documents vitiates the detention order.
7. The learned senior counsel has also relied on the decisions reported in
1990 SCC (Crl) 258 (M.Ahamedkutty v. Union of India and another); and 1999 SCC
(Crl) 231 (Powanammal v. State of T.N. and another); and 2007 (1) MLJ (Crl) 1040
(Farzana Haji Sumar v. State of Tamil Nadu) for non supplying the documents. In
Agamedkutty’s case and also Pownammal’s case, the Hon’ble Supreme Court has
pointed out that ‘whereas the non-supply of a copy of the document relied upon
in the grounds of detention has been held to be fatal to continued detention,
the detenu need not show that any prejudice is caused to him. This is because
the non-supply of such a document would amount to denial of the right of being
communicated the grounds and of being afforded the opportunity of making an
effective representation against the order.’
8. In 2007 (1) MLJ (Crl) 1040 (cited supra), this court has held that the
satisfaction arrived at by the detaining authority is defective and in any
event, the detenu is prejudiced due to the non-supply of relevant documents for
making effective representation and it vitiates the impugned detention order.
9. In a decision reported in 2009 (2) MLJ 245 (E.Raja v. State of Tamil
Nadu), a Division Bench of this Court has held that non-furnishing of surrender
petition and remand order will have an adverse effect on the right of detenu to
make an effective representation as to any of the observations made in the
remand order. In the above said case, the Division Bench after analysing the
Judgments of a Full Bench of this Court reported in G.kalaiselvi v. State of
Tamil Nadu (2007 (2) MLJ (Crl) 1841) and Powanammal’s case, came to the
conclusion that furnishing of remand warrant is an important document.
10. The learned Senior counsel would submit that Hon’ble Supreme Court has
categorically held that bail application and bail order are vital documents and
non-supply of the vital documents is a violation of Article 22(5) of the
Constitution of India.
11. According to the learned Senior Counsel, the alleged statement given
by the said Michael Charles Boopathy is an admission and his subsequent
retraction is a material to this case.
12. The learned Public prosecutor vehemently stressed that the statement
given by the said Michael Charles Boopathy is not a confession and it is an
exculpatory statement. In support of his contention, he relied on a decision
reported in AIR 1952 SC 354 (Palvinder Kaur v. State of Punjab), wherein it has
been held that “a confession must either admit in terms the offence, or at any
rate, substantially all the facts which constitute the offence. An admission of
a gravely incriminating fact, even a conclusively incriminating fact is not of
itself a confession. A statement that contains self-exculpatory matter cannot
amount to a confession, if the exculpatory statement is of some fact, which if
true, would negative the offence alleged to be confessed. A statement which when
read as a whole is of an exculpatory character and in which the prisoner denies
his guilt is not a confession and cannot be used in evidence to prove his
guilt.”
13. In the above said case, the Hon’ble Supreme Court considered the
confession statement of Palvinder dated 15.04.1950. In that case, One Jaspal
Singh was fond of hunting as well as of photography. From hunting whatever skins
(khalls), he brought home he became fond of colouring them. He also began to do
the work of washing of photos out of eagerness. One day in December 1949 Jaspal
Singh said to my cousin Mohinderpal Singh to get him material for washing
photos. The said Mohinderpal Singh said to Harnam Singh, who is head clerk in
Ballev Nagar Camp, to bring the same from the Cantt. Harnam Singh went to the
Cantt. and on return said that the material for washing photos could be had only
by a responsible Government Official. He told so to Mohinderpal Singh, who said
that Harnam Singh should take his name and get the medicine. Thereupon, Harnam
Singh went to the Cantt. and brought the medicine. As the medicine was sticking
to the paper the wife of Jaspal Singh put it in water in a small bottle and kept
it in the almirah. One day she placed the medicine bottle in the almirah, where
medicine for washing photos had been placed. Her husband took that medicine by
mistake and fell down.
14. In the case on hand, the statement given by the Michael Charles
Boopathy is available at page 78 of the typed set of papers. A perusal of the
said statement would show that he collected the EIR copy and handed it over to
the said Ramesh and he was aware of the illegal transaction. Further he admitted
that he assisted the detenu in CFS and he also handed over the documents.
15. His statement would show that he knew the offence and was actively
took part along with the detenu. The learned senior counsel for the petitioner
submitted that the statement of Michael Charles Boopathy is an admission and the
said document was not supplied to the detenu. The statement of the Michael
Charles Boopathy before the authorities would show that he was aware of the
transaction and it can be treated as a confession statement. If it is considered
as a confession statement, it should have been furnished to the detenu.
16. Learned Public Prosecutor would oppose the claim of the petitioner on
the ground that the retracted statement is not a necessary document to be
supplied to the detenu. In support of his contention, he relied on the decisions
reported in 2006 (3) SCC (Cri) 270 (Vinod K. Chawla v. Union of India and
others) and 1992 SCC (Cri) 1 (Abdul Sathar Ibrahim Manik v. Union of India) and
stressed that the non supply of retraction statement of Michael Charles Boopathy
will not vitiate the proceedings.
17. In 2006 (3) SCC (Cri) 270 (cited supra), the Hon’ble Supreme Court has
held that law does not require that every document or material in possession of
sponsoring authority must necessarily be placed before the detaining authority.
This view has been followed in several decisions of this Court. In Abdul Sathar
Ibrahim Manik v. Union of Inida, it was held as under:-
“12.(3) If the detenu has moved for bail then the application and the
order thereon refusing bail even if not placed before the detaining authority,
it does not amount to suppression of relevant material. The question of non-
application of mind and satisfaction being impaired does not arise as long as
the detaining authority was aware of the fact that the detenu was in actual
custody.”
Hence, the Hon’ble Supreme Court was of the view in the above case that failure
to supply the statement of the detenu’s son will not vitiate the detention
order.
18. In 1992 SCC (Cri) 1 (cited supra), the Hon’ble Supreme Court found
that the documents, which are not relied on need not be considered and failure
to supply them will not affect the detention. In the said decision, the Hon’ble
Supreme Court has also considered the Judgment in M.Ahamedkutty v. Union of
India reported in (1990 (2) SCC 1) and distinguished the said Judgment.
19. The learned Public Prosecutor relied on a decision reported in 2009
(2) SCC 612 (State of Andhra Pradesh v. M.Radha Krishna Murthy) and argued
that Courts should not place reliance on decisions without discussing as to how
the factual situation fits in with the act situation of the decision on which
reliance is placed.
20. In this case, the detaining authority came to the conclusion that the
confession of the Michael Charles Boopathy was one of the grounds to take
suitable action against the detenu. The confession statement given by the said
Michael Charles Boopathy would show that he assisted the detenu in his business
and the statement of the said Michael Charles Boopathy was relied on and
considered by the detaining authority. The said Michael Charles Boopathy gave a
statement about the corrections made in the Phytosanitary Certificate.
Paragraph 4 of the detention order reads as follows:-
“While arriving at the subjective satisfaction to detain you under the
conversation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974, the State Government have taken into consideration all the facts and
material referred to and relied upon in the grounds mentioned above and also the
statements, bail petitions and mahazars.”
21. So, it is seen that the detaining authority has considered the
statement of the said Michael Charles Boopathy and also other documents and came
to the conclusion about the detention. So, these documents are relied upon by
the detaining authority to arrive at the subjective satisfaction. While these
documents were relied on by them, such documents would have been furnished to
the detenu. The failure of the detaining authority to supply the documents would
affect the case of the prosecution and it would vitiate the order of detention.
22. Tested the case in the light of the above said decisions, we are of
the considered view that the Judgment relied on by the learned Senior Counsel in
2009 (2) MLJ 245 (cited supra) is squarely applicable to this case, and the
decision relied on by the learned Public Prosecutor as reported in 2009 (2) SCC
612 (cited supra) would not be applicable to the facts and circumstances of this
case. So, the non supply of retracted confession of the Michael Charles Boopathy
is a ground to set aside the detention.
23. The next ground urged by the learned Senior Counsel for the petitioner
is that in spite of a specific request, the Phytosanitary certificate was not
furnished and such action would vitiate the detention order. In support of his
contention he relied on Kalaiselvi’s case and a decision reported in 2008 (2)
MLJ (Crl) 379 (Remya and another v. State of Tamil Nadu) wherein a Division
Bench of this Court has held that ‘when a document is relevant, refusal to
supply a copy thereof, despite the detenu’s request therefore, without valid
reason, will vitiate the detention order.’
24. In this case, the Phytosanitary Certificate was relied on by the
detaining authority and the document was sent to the expert opinion. It is the
stand of the detaining authority that the documents were corrected to show as if
“cashew nuts” were imported and not “betel nuts”. Learned Public Prosecutor has
also pointed out that a perusal of the documents would clearly show that the
word “betel nuts” was erased and “cashew nuts” was substituted. The documents
were sent to the expert opinion. So, it is a material document. The detenu also
requested the said document. That was rejected, as immeterial one. Non
furnishing of the copy of this document vitiates the order of detention.
25. The learned Senior Counsel for the petitioner submits that after the
detention order was passed, a letter dated 17.04.2009 was sent to the detenu by
the Secretary to Government stating that the following copies are sent to the
detenu, as per direction of the Assistant Director, Directorate of Revenue
Intelligence, Chennai:-
1) Copy of the mahazar dated 03.03.2009 drawn at CWC, CFS, Tuticorin for
seizure of 362.160 Mts of Betel nuts imported by M/s.Baywoods Exim, Tuticorin in
20 containers declaring the description of the goods as raw cashew nuts;
2) Copy of the statement dated 24.03.2009 of Thiru K.Daniel, Manager-
Customer Service, Maersk India (P) Ltd., Tuticorin. In this statements he has
stated interalia about his presence during the examination and seizure
proceedings under mahazars on 02.02.2009, 03.02.2009, 05.02.2009 and 04.03.2009,
about the movement of the import containers at the instance of M/s.Baywoods
Exim;
3) Copies of the request of M/s.Baywoods Exim, Tuticorin, Form B-1
Application of M/s.Maersk Line and application of Central Warehousing
Corporation, Tuticorin, all addressed to the Customs, Tuticorin, for movement of
import laden containers from PSA Sical to CWC, CFS, Tuticorin, in respect of 59
containers out of the 69 containers which were examined under mahazar on
05.02.2009 at CWC, Sical, Tuticorin;
4) Further notice dated 10.03.2009 for disposal of seized betel nuts;
5) Letter dated 24.03.2009 of M/s.Calileo Unggul Logistics, Indonesia,
Interalia praying for stopping all further proceedings with regard to the
disposal of their goods pursuant to notice dated 16.02.2009 and 10.03.2009;
return of the goods to them; to pay the value of the cashew nuts found missing
in 69 containers;
6) Reply dated 06.04.2009 sent to M/s.Galileo Unggul Logistics, Indonesia,
for their above mentioned letter dated 24.03.2009;
7) Letter dated 01.04.2009 from Thiru Nita-Diah-Patuan, Indonesia,
addressed to the Assistant Director, DRI, Tuticorin, regarding application to
cancel or discontinue the process of selling the betel nuts and to re-route the
seized perishable goods;
8) Reply dated 15.04.2009 for the above letter dated 01.04.2009 of Thiru
Nita-Diah-Patuan, Indonesia.
26. Relying on the above said documents, the learned Senior Counsel for
the petitioner has submitted that after the detention order, additional
documents were furnished, from which it is clear that the detenu was not in a
position to make effective representation to the detaining authority. In support
of his contention, he relied on a decision reported in 1999 SCC (Crl) 299 (State
of Tamil Nadu v. Senthil Kumar and another), wherein the Hon’ble Supreme Court
has held that the manner in which the documents were served on the detenu did
cause confusion to the detenu as he was kept in the dark about the purpose of
furnishing the documents and far from giving him the earliest opportunity to
make an effective representation, it deprived him of the chance of making a
representation which resulted in infringement of the right guaranteed under
Article 22(5) of the Constitution of India.
27. In the light of the above said Judgment of the Hon’ble Supreme Court,
we are of the view that the detenu was not in a position to give effective
representation, as the additional documents were furnished following the
detention order. Hence, on this ground also, the detention order is liable to be
set aside.
28. The learned Senior Counsel for the petitioner raised a new ground that
the remand report was not furnished to him. For this, he relied on a decision
reported in 1992 Crl.L.J. 1927 (1) (K.P.M. BASHEER V. STATE OF KARNATAKA AND
ANOTHER), wherein it has been held that legal plea can be raised before the
court even though not specifically taken in memorandum of appeal.
29. For this, learned Public Prosecutor relied on a decision reported in
2007 (3) SCC (Crl) 439 (Mukesh Tikajo Bora v. Union of India and others) and
argued that new ground cannot be raised at all.
30. The learned Public Prosecutor submitted that there is no pleading to
this effect. So, he cannot raise such a new plea. To strengthen his case, he
further relied on the decisions reported in 1972 SCC (Crl) 811 (Netaipada Shah
v. The State of West Bengal); and 1973 SCC (Crl) 695 (Arun Kumar Sinha v. The
State of West Bengal); and 1988 (1) SCC 296 (K.Aruna Kumari v. Government of
Andhra Pradesh and others).
31. In 1972 SCC (Crl) 811 (cited supra), the Hon’ble Supreme Court has
observed that in the absence of any averment in the petition, it cannot be
raised.
32. In 1973 SCC (Crl) 695 (stated supra) also, the absence of pleadings
was considered. In that case, the plea of FIR was not raised in the petition.
So, the Hon’ble Supreme Court was of the view that such a plea cannot be raised
subsequently.
33. Per contra, the learned Senior Counsel for the petitioner relied on
the decisions reported in AIR 1980 SC 1983 (Icchu Devi v. Union of INdia); and
1987 SC 1977 (Mohinuddin v. District Magistrate, Beed and others); and 1992
Crl.L.J.1927 (cited supra).
34. In AIR 1980 SC 1983 (stated supra), the Hon’ble Supreme Court has held
that in case of an application for a writ of habeas corpus, the practice evolved
by Supreme Court is not to follow strict rules of pleading nor place undue
emphasis on the question as to on whom the burden of proof lies. Even a postcard
written by a detenu from jail is sufficient to activise the court into examining
the legality of detention. The Supreme Court has consistently shown great
anxiety for personal liberty and refused to throw out a petition merely on the
ground that it does not disclose a prima facie case invalidating the order of
detention.
35. In 1987 SC 1977 (stated supra), it has been pointed out that it is not
proper to disallow the writ petition on the ground of imperfect pleadings.
Normally, writ petitions are decided on the basis of affidavits and the
petitioners cannot be permitted to raise grounds not taken in the petition at
the hearing. The same rule cannot be applied to a petition for grant of a writ
of habeas corpus. It is enough for the detenu to say that he is under wrongful
detention, and the burden lies on the detaining authority to satisfy the court
that the detention is not illegal or wrongful and that the petitioner is not
entitled to the relief claimed. It is well settled that it is incumbent on the
State to satisfy the Court that the detention of the petitioner/detenu was legal
and inconformity not only with the mandatory provisions of the Act but also
strictly in accordance with the constitutional safeguards embodied in Art.22(5).
36. The above said rulings would show that the pleadings need not be
considered strictly in a writ of habeas corpus. Even in 2007 (3) SCC (Crl) 439
(cited supra), relied on by the learned Public Prosecutor the Hon’ble Supreme
Court has held that though there can be no quarrel with the proposition that in
some cases new grounds can be permitted to be urged. Hence, the petitioner is
entitled to raise the new ground. The remand report was not furnished to the
detenu which would also affect the detention.
37. The learned Public Prosecutor would vehemently oppose this petition on
the ground that the detenu is an economic offender. So, he is not entitled to
the relief in this petition. He relied on a decision reported in AIR 1982 SC 1
(Rattan Singh v. State of Punjab), wherein it has been held as follows:-
“May be that the detenu is a smuggler whose tribe (and how their numbers
increase) deserves no sympathy since its activities have paralysed the Indian
Economy. But the laws of preventive detention afford only a modicum of
safeguards to persons detained under them and if freedom and liberty are to have
any meaning in our democratic set-up, it is essential that at least those
safeguards are not denied to the detenus. Section 11 (1) of COFEPOSA confers
upon the Central Government the power to revoke an order of detention even if it
is made by the State Government or its officer. That power, in order to be real
and effective, must imply the right in a detenu to make a representation to the
Central Government against the order of detention.”
In the above case, even in case of a smuggler, the right of a detenu to
make representation was pointed out.
38. On considering the rival submissions made by both sides and the
Judgments relied on by the learned Senior Counsel and the learned Public
Prosecutor, we are of the view that the valid documents were not furnished and
the mandatory provisions were not followed. Hence, the detention order is liable
to be set aside.
39. Accordingly, the order of detention passed in letter No.SR.1/097-
3/2009 dated 04.03.2009 by the first respondent is quashed. The Habeas Corpus
Petition is allowed.
rj2
To
1. SECRETARY TO GOVERNMENT
PUBLIC (SC) DEPARTMENT, SECRETARIAT, FORT ST.GEORGE,
CHENNAI – 600 009
2. THE SECRETARY TO GOVT.,UNION OF INDIA,MINISTRY OF FINANCE.
(DEPT.OF REVENUE) NEW DELHI, CENTRAL ECONOMIC INTELLIGENCE
BUREAU,JANAPATH BHAVAN,B WING, 6TH FLOOR,
JANAPATH BHAVAN, NEW DELHI 100 001
3. THE JOINT SECRETARY TO GOVERNMENT
(PUBLIC LAW AND ORDER) FORT ST. GEORGE, CHENNAI 9
4. THE DEPUTY INSPECTOR GENERAL OF POLICE,
CID, INTELLIGENCE, CHENNAI 4
5. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI
6. THE ADDITIONAL PUBLIC PROSECUTOR,
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI