{"id":106235,"date":"2002-12-03T00:00:00","date_gmt":"2002-12-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/izadeen-vs-the-state-of-tamil-nadu-on-3-december-2002"},"modified":"2016-09-11T18:05:19","modified_gmt":"2016-09-11T12:35:19","slug":"izadeen-vs-the-state-of-tamil-nadu-on-3-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/izadeen-vs-the-state-of-tamil-nadu-on-3-december-2002","title":{"rendered":"Izadeen vs The State Of Tamil Nadu on 3 December, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Izadeen vs The State Of Tamil Nadu on 3 December, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 03\/12\/2002\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE V.S.SIRPURKAR\nAND\nTHE HONOURABLE MR.JUSTICE P.D.DINAKARAN\n\nH.C.P.No.735 of 2002\n\nIzadeen                                                .. Petitioner\n\n-Vs-\n\n1. The State of Tamil Nadu\n   rep. by the Secretary to Govt.,\n   Public (SC) Department\n   Fort St. George, Chennai.\n\n2. The Union of India\n   rep. by the Secretary to Govt.,\n   Ministry of Finance\n   Department of Revenue\n   (COFEPOSA Unit)\n   Central Economic Intelligence Bureau\n   Janpath Bhavan, Janpath\n   New Delhi.\n\n3. The Superintendent of Central Prison\n   Central Prison, Chennai-3.                           .. Respondents\n\n\nPRAYER:  Petition filed under Article 226 of the  Constitution  of  India  for\nissue of Writ of Habeas Corpus for the relief as stated therein.\n\nFor Petitioner         :       Mr.K.A.Jabbar\n\nFor Respondents        :       Mr.I.Subramaniam\n                        Public Prosecutor\n                        for Respondents 1 and 3\n                        Mr.C.Kulandaivelu\n                        for Mrs.Vanathi Srinivas\n                        A.C.G.S.C.,\n                        for second respondent\n\n\n:ORDER\n<\/pre>\n
(Order of this Court made by V.S.Sirpurkar,J.)<\/p>\n
        The petitioner has challenged the order passed under the provisions of
\nSection  3(1)(i)  of  the  Conservation  of Foreign Exchange and Prevention of
\nSmuggling Activities Act, 1974, dated 24.1.2002, ordering the detention of the
\ndetenu.\n<\/p>\n
        2.  The detenu  was  a  passenger  travelling  from  Colombo.    After
\nreaching  Chennai  Airport  on  28.12.2001,  he collected a checked in baggage
\nbearing tag No.UL 281926.  He had come by Srilankan Airlines Flight No.UL 121.
\nThis tag was in the name of one Noor Mohammed.   The  detenu  started  walking
\nthrough the  green  channel.  He was intercepted by an Intelligence Officer on
\nsuspicion that he was carrying some contraband.  In the search,  10  Umbrellas
\nwere  found  and  in the rods of those umbrellas as many as 238 small metallic
\nyellow rods made of gold were found.  They amounted  to  1630  Grams  of  gold
\nworth about Rs.7,40,834\/-.\n<\/p>\n
3.   His statement was recorded, where he admitted that the bag, though was in
\nthe name of Noor Mohammed, belonged to  him.    His  voluntary  statement  was
\nrecorded  on  the  same  day where he stated that he had visited India four or
\nfive times earlier; that he knows Sinhalese and Tamil to read and write;  that
\nhe  used  to  bring  other  materials like cloves and soaps, and used to carry
\nclothes from here; that he had met a person named  Noor  Mohammed  in  Colombo
\nAirport  and  he  requested  him  to  check in his baggage in the name of Noor
\nMohammed along with his two baggages  and  for  this  he  was  paid  Rs.500\/-.
\nAccordingly,  he  had,  as  per  the  request of Noor Mohammed, registered his
\nbaggage along with Noor Mohammed’s two baggages in the name of  Noor  Mohammed
\nand gave the luggage tag.  He then admitted that he took the flight to Chennai
\nand in  Chennai  Airport  he  collected  his  one checked in baggage.  Further
\nstatement was also recorded on the same day wherein he admitted his connection
\nwith Noor Mohammed.  On these grounds, the order seems  to  have  been  passed
\nrendering him to be a smuggler and with a view to prevent him from taking part
\nin the smuggling activities.\n<\/p>\n
4.   It  is  significant  that  in  paragraph (v) of the detention order it is
\nstated:  “No complaint of ill treatment was  made  by  you.    Your  Srilankan
\npassport was ordered to be retained to judicial custody.”\n<\/p>\n
        5.  After the order was passed, the petitioner who was in the judicial
\ncustody  and  who was trying to obtain bail all through by making applications
\nafter applications was detained under the preventive detention.    There  were
\nefforts  on  his  part to retract the statement which he had given and he also
\nsent a representation to the authorities.  It is this order of detention which
\nis challenged in the present writ petition.\n<\/p>\n
        6.  Mr.K.A.Jabbar, learned counsel for the petitioner urged that  this
\nwas a case of the failure on the part of the detaining authority to apply mind
\nto  the  fact  that the passport of the petitioner was retained and therefore,
\nthe order is a result of non-application of mind and non-consideration of  the
\nmaterial facts.\n<\/p>\n
        7.   In  support  of his argument, the learned counsel points out that
\nthe fact that the passport was ordered to be retained to judicial custody  was
\nundoubtedly noted   by   the   detaining  authority.    The  learned  counsel,
\npainstakingly, took us through all the grounds and pointed out that after this
\nfact of the detention of the passport was noted, the concerned  authority  has
\nfurther noted in paragraph (xii):  “The Customs in their reply dated 23.1.2002
\naddressed  to  your  brother  Naushad  have  stated that you had given in your
\nvoluntary statement immediately after the seizure, which is in your  own  hand
\nadmitted that the baggage belonged to you, though it was booked in the name of
\nThiru Noor Mohammed; that you had travelled together with Noor Mohammed number
\nof  times  to  Colombo;  that  a  copy  of the mahazar was given to you by the
\nCustoms department; and that the  dropping  of  case  proceeding  against  you
\ncannot be accepted”.\n<\/p>\n
        8.  The learned counsel also invited our attention to paragraphs 5 and
\n6 of the grounds, which are as under:\n<\/p>\n
”       5.   The  State  Government are also aware of the fact that you are in
\nthe Central Prison, Chennai as remand prisoner and there is likelihood of  you
\nbeing released  on  bail.    The  State Government are satisfied that there is
\nlikelihood of your indulging in the above said  prejudicial  activities  again
\nwhile  on  bail  and  there  is  a  compelling  necessity  to prevent you from
\nindulging in such activities.  The State Government, therefore, consider  that
\nit  is  necessary  to  detain you under Section 3(1)(i) of the Conservation of
\nForeign Exchange and Prevention of Smuggling Activities Act, 1974.\n<\/p>\n
6.  The State Government are also satisfied that on the  facts  and  materials
\nmentioned  above,  if  you  are  released  on  bail,  you will indulge in such
\nactivities and that further recourse to normal criminal law would not have the
\ndesired  effect  of  effectively  preventing  you  from  indulging   in   such
\nactivities.  The State Government, therefore, consider that it is necessary to
\ndetain  you  under Section 3(1)(i) of the Conservation of Foreign Exchange and
\nPrevention of Smuggling Activities Act, 1974 with a  view  to  preventing  you
\nfrom smuggling of goods in future.”\n<\/p>\n
        9.   The learned counsel, however, points out that there is absolutely
\nnothing in the whole grounds to suggest that the detaining authority was alive
\nto the fact that the petitioner’s passport was already  retained  to  judicial
\ncustody  and  therefore,  it was impossible for him to have engaged himself in
\nsmuggling activities.    According  to  the  learned  counsel,  the  detaining
\nauthority  has  not  considered the effect of the retention of the passport at
\nall.\n<\/p>\n
        10.  The gravamen of the contention  is  that  whereas  the  detaining
\nauthority has specifically stated that the release on bail of the detenu would
\ngive  him  a  further  opportunity  to do and continue his nefarious smuggling
\nactivities.  There is nothing in  paragraphs  5  and  6  or  for  that  matter
\nanywhere  to  suggest  that  the  effect  of the retention of the passport was
\nconsidered by the detaining authority.  The learned  counsel  says  that  this
\namounts  to  non-application of mind, particularly because the whole detention
\norder is on the ground that the concerned detenu has been  travelling  in  and
\nout of India only for the purpose of smuggling.\n<\/p>\n
        11.   The learned counsel very heavily relies upon the decision of the
\nSupreme Court in RAJESH GULATI Vs.  GOVERNMENT OF NCT  OF  DELHI  reported  in
\n2002 (83)  ECC  281  (SC).    As  per  this decision, according to the learned
\ncounsel, the Supreme Court found that  the  withdrawal  or  retaining  of  the
\npassport was a relevant circumstance.  The learned counsel pointed out that in
\nparagraph 15 of the judgment, the Supreme Court has clearly expressed that the
\nwithdrawal of the passport was a relevant circumstance and that the conclusion
\ndrawn  by  the  detaining authority and some statements made while stating the
\nreasons for detention were in the nature of pure speculation on  the  part  of
\nthe detaining  authority.    It  will  be better to quote paragraph 15 of said
\njudgment:\n<\/p>\n
“…  15.  In other words according to the detaining authority the prime mover
\nfor the smuggling activity was  the  proprietor  of  M\/s.B.D.    Denim.    The
\nappellant at  the worst was a pawn in the hands of another.  The likelihood of
\nthe appellant indulging in smuggling activities by the appellant  was  in  any
\ncase  effectively  foreclosed  by the retention of his passport by the customs
\ndepartment.  The detaining authority noted that the appellant\u2019s  passport  was
\nwith  the  customs  department  and  yet he said \u201cbut you are likely to travel
\nclandestinely for the purpose of smuggling\u201d.  Now  one  of  the  instances  of
\nsmuggling  by the appellant as stated in the impugned detention order describe
\nthe appellant as having travelled  without  a  passport  for  the  purpose  of
\nsmuggling.   The  conclusion  that  despite  the  absence  of his passport the
\nappellant could or would be able to continue his activities  is  based  on  no
\nmaterial  but  was  a  piece  of pure speculation on the part of the detaining
\nauthority.  These findings are sufficient to invalidate the impugned detention
\norder and it is not necessary to consider  the  other  issues  raised  by  the
\nappellant.\u201d<\/p>\n
        12.   The  learned  counsel  further  pointed  out that similar to the
\nreported decision, the petitioner was also described to be making trips in and
\noutside India and had been in contact with one Noor Mohammed who was  more  or
\nless responsible  for  the  activities of the petitioner.  The learned counsel
\npointed out the further similarity that the  petitioner\u2019s  passport  was  also
\nwithdrawn  by  the  Customs Department and therefore, there was no question of
\npetitioner being able to conduct any  activity  much  less  of  smuggling  and
\ntherefore,  according  to  the  learned  counsel  there  was  no basis for the
\napprehension of the detaining authority that  the  petitioner  was  likely  to
\ncontinue  his smuggling activities or that he could, in fact, continue such an
\nactivity of smuggling.\n<\/p>\n
13.  In short, the contention raised is that the detaining authority  did  not
\ntake  into  consideration  the  fact  that  the whole pattern of the smuggling
\nactivity depended upon the petitioner\u2019s travel in and outside India along with
\nNoor Mohammed, which undoubtedly require the passport, and since the  passport
\nwas  retained  in the judicial custody by the order of the Court, there was no
\npossibility of the petitioner continuing with the smuggling activity and  that
\nthis  suggestion should have been apparent in the grounds stated in support of
\nthe detention order.\n<\/p>\n
        14.   As  against  this,  the  learned  senior  counsel   and   Public
\nProsecutor,  Mr.I.Subramaniam,  relied on the decision of the Supreme Court in
\nM.AHAMEDKUTTY Vs.  UNION OF INDIA reported in 1990 SCC  (Cri)  258,  and  more
\nparticularly on  paragraph  18 at page 269.  The paragraph is in the following
\nterms:\n<\/p>\n
\u201c…  18.  The next submission of counsel was  that  the  detaining  authority
\nshould  have realized that the seizure of the detenu\u2019s passports was by itself
\nsufficient  to  restrain  the  detenu\u2019s  smuggling  activities,  if  any,  and
\nrefrained from  passing  the  order  of  detention.    We see no force in this
\ncontention.  This was no doubt one of the factors that the detaining authority
\nshould have taken (and did in fact take) into account but it was  for  him  to
\nassess  the  weight  to  be attached to such a circumstance in arriving at his
\nfinal decision and it is not open to us to interfere with  the  merit  of  his
\ndecision.  We, therefore, reject his contention of Mr.Vaidyanathan.\u201d<\/p>\n
        15.   The learned senior counsel says that the detaining authority was
\nundoubtedly aware of the fact that the passport was impounded or  retained  in
\nthe  judicial custody, as the case may be, by the Department, and if, in spite
\nof that, the detaining authority chose to pass the order of detention, then it
\nmust be presumed that the detaining authority  had  taken  into  consideration
\nthis factum of the seizure of the passport in judicial custody and in spite of
\nthat it was satisfied in favour of the need of the detention.\n<\/p>\n
        16.   The  learned  Public  Prosecutor  also  expressed  that  if  the
\ncontention of the learned counsel for the petitioner is accepted, it would  be
\na  thumb-rule  that  in  all  the  cases involving smuggling where passport is
\nimpounded or where the detenu is deprived of his passport, there would  be  no
\nquestion of ordering any preventive detention.\n<\/p>\n
        17.   Considering  the  rival submissions, we are of the clear opinion
\nthat in this case there is a specific pattern of smuggling  described  in  the
\ngrounds.   That  pattern  of  smuggling  is to be seen in the statement of the
\ndetenu to the effect that he had travelled four or five times in  and  outside
\nIndia  either  with  or  without  Noor  Mohammed and that he used to carry the
\ncontraband goods only at the instance of Noor Mohammed.   This  suggests  that
\nthe  activity  of  smuggling,  at  least  in  the  case of the petitioner, was
\nessentially connected with the travels in and outside  India.    There  is  no
\nother activity  either suggested or attributed to the petitioner.  If this was
\nso, then while making up the mind for passing the order,  it  was  undoubtedly
\nessential  for  the  detaining  authority  to say something about the passport
\nhaving been impounded and the result of the impounding of the passport by  the
\nCourt.   Unfortunately,  that is not to be seen in either paragraphs 5 or 6 or
\nfor that matter anywhere in the grounds.\n<\/p>\n
        18.  There is no doubt that in M.AHAMEDKUTTY case, the  Supreme  Court
\nheld that it was for the concerned authority to weigh this fact one way or the
\nother.  However, we cannot forget the observation of the Supreme Court in that
\nparagraph itself, which is to the following effect:
\n“This was no doubt one of the factors that the detaining authority should have
\ntaken  (and  did  in  fact take) into account but it was for him to assess the
\nweight to be attached to such a circumstance in arriving at his final decision
\nand it is not open to us to interfere with the merit of his decision”.\n<\/p>\n
        19.  Therefore, the fact of the impounding  of  the  passport  or  the
\ndetenu deprived of the passport was undoubtedly a very relevant fact.  What we
\nhave  before  us  is,  only  the  fact  that  the passport was retained in the
\njudicial custody.    That,  in  our  opinion,  would  not   be   taking   into
\nconsideration the result of the deprivation of the detenu of his passport.  In
\nour  opinion,  the  concerned  authority  should  have been more elaborate and
\nshould  have  shown  that  it  had  applied  its  mind  to   this   particular
\ncircumstance.   When  we  see  paragraphs  5  and 6 on page 7 of the detention
\norder, all that is stated is that though the petitioner was in custody, he was
\nlikely to be released on bail and if he was released on bail, he was bound  to
\nindulge  in  such  activities and that further recourse to normal criminal law
\nwould not have the desired effect to effectively prevent him from carrying  on
\nwith these  activities.    Therefore, the most relevant fact that weighed with
\nthe detaining authority to take the decision to detain was the  likelihood  of
\nthe petitioner to be released on bail.  At the same time, when the backdrop of
\nthe  detention was a patternised smuggling activity and the deprivation of the
\npassport was bound to put a complete stop to that pattern, it was  imperative,
\nin  our  opinion,  for  the  detaining  authority  to take that fact also into
\nconsideration and there is nothing in the grounds  that  that  fact  has  been
\ntaken into  consideration.    Therefore,  in our opinion, in the facts of this
\ncase, the retaining of the passport was of paramount  importance  and  it  was
\nliable  to  be  taken  into  consideration  and  not  having  taken  that into
\nconsideration, the detaining authority has failed to take  into  consideration
\nthe very material fact, which has affected his thinking process and ultimately
\nthe decision.    We  hasten to add that we should not be taken to mean that in
\nall the cases where the passport is impounded, the mentioning about  the  same
\nis a  must.   We are particularly taking this view, in view of the patternised
\nsmuggling activity in this case.  Even a cursory look  at  the  grounds  would
\nsuggest  that  the  detaining authority has not applied its mind to this vital
\nfact of the deprivation of the  detenu  from  his  passport.    In  that,  the
\ndetention order  suffers  and  is  vitiated.   In view of the fact that we are
\nallowing the petition on this ground alone, we do not deem it necessary to  go
\nto any other point and the learned counsel also withdraws his arguments on the
\nother points.   The  petition  is  allowed.  The detenu be released forthwith,
\nunless he is required in any other matter.  Rule is made absolute.  No  costs.
\nConsequently, connected H.C.M.P.No.164 of 2002 is closed.\n<\/p>\n
Index:  Yes
\nInternet:Yes<\/p>\n
sasi<\/p>\n
To:\n<\/p>\n
1.  The State of Tamil Nadu
\nrep.  by the Secretary to Govt.,
\nPublic (SC) Department
\nFort St.  George, Chennai.\n<\/p>\n
2.  The Union of India
\nrep.  by the Secretary to Govt.,
\nMinistry of Finance
\nDepartment of Revenue
\n(COFEPOSA Unit)
\nCentral Economic Intelligence Bureau
\nJanpath Bhavan, Janpath
\nNew Delhi.\n<\/p>\n
3.  The Superintendent of Central Prison
\nCentral Prison, Chennai-3.\n<\/p>\n
4.  The Public Prosecutor
\nHigh Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Izadeen vs The State Of Tamil Nadu on 3 December, 2002 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-106235","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nIzadeen vs The State Of Tamil Nadu on 3 December, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/izadeen-vs-the-state-of-tamil-nadu-on-3-december-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Izadeen vs The State Of Tamil Nadu on 3 December, 2002 - 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