{"id":38523,"date":"2009-08-18T00:00:00","date_gmt":"2009-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/udhay-nayar-vs-state-of-tamil-nadu-rep-on-18-august-2009"},"modified":"2016-09-19T23:16:50","modified_gmt":"2016-09-19T17:46:50","slug":"udhay-nayar-vs-state-of-tamil-nadu-rep-on-18-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/udhay-nayar-vs-state-of-tamil-nadu-rep-on-18-august-2009","title":{"rendered":"Udhay Nayar vs State Of Tamil Nadu Rep on 18 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Udhay Nayar vs State Of Tamil Nadu Rep on 18 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 18\/08\/2009\n\nCORAM\nTHE HONOURABLE MR. JUSTICE P.MURGESEN\nAND\nTHE HONOURABLE MR. JUSTICE C.S.KARNAN\n\nHabeas Corpus Petition (MD) No.166 of 2009\n\nUdhay Nayar\t\t\t\t\t \t\t...Petitioner\n\nVs\n\n1.State of Tamil Nadu rep.\n  by Secretary to Government,\n  Public (SC) Department,\n  Secretariat,Fort St.George, Chennai 9.\n\n2.Union of India rep. by\n  Secretary to Government,\n  Ministry of Finance,(Department\n  of Revenue), New Delhi\n  Central Economic Intelligence Bureau,\n  Janpath Bhavan, 'B' Wing, 6th Floor,\n  Janpath Bhavan, New Delhi 100 001\t\t\t\t...Respondents\n\n\tPetition under Article 226 of the Constitution of India praying for\nissuance of a writ of habeas corpus, calling for the records of the first\nrespondent made in letter No.SR.1\/097-3\/2009 dated 04.03.2009 and quash the same\nand produce the body of Nitin Nayar son of Madhava Ramachandra Nayar presently\nundergoing detention in Central Prison, Madurai and set him at liberty.\n\t\t\t\n!For Petitioner\t ... Mr.B.Kumar, Senior Advocate\n\t\t     for Mr.R.Anand\n^For R1\t\t ... Mr.N.R.Elango,Additional Public Prosecutor\nFor R2\t\t ... Mr.P.Krishnasami, CGSC\n\n:ORDER\n<\/pre>\n
(Order of the Court is made by P.MURGESEN, J.)<\/p>\n
\tThe petitioner, who is the father of the detenu, challenges the order of
\ndetention, dated 04.02.2009, passed by the second respondent against the detenu
\nviz., Mani @ Estate Mani, under Section 3(1)(i) of the Conservation of Foreign
\nExchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of
\n1974).\n<\/p>\n
\t2. On 21\/22.01.2009, the officers of Directorate of Revenue Intelligence
\n(DRI), Thoothukudi, conducted search of the premises of M\/s.Baywoods Exim, owned
\nby the detenu in the presence of independent witnesses and in the presence of
\none Ramesh, In-charge of the said place and his assistant one Mariappan, based
\non specific intelligence to the effect that M\/s.Baywoods Exim imports ‘betel
\nnuts’ by misdeclaring the same as ‘cashew nuts’ in the import documents; that
\nwhile moving the containers with the permission of customs under the guise of
\nbeing taken to CWC CFS from Thoothukudi Port (import section), the same are
\ntaken to the premises of M\/s.Baywood Exim, where the seals of the containers are
\nbreak opened and the betel nut bags are unloaded from the containers and
\nsubstituted with cashew nut bags and that the containers are then locked with
\nthe substituted duplicate seals kept in the company and taken to CFS for Customs
\nexamination after filing of Bill of Entry; that M\/s.Baywoods Exim Firm is
\nengaged in such evasion of duty in large scale, as higher import duty is levied
\nfor the import of betel nuts and no Customs Duty is levied for the import of
\ncashew nuts.\n<\/p>\n
\t3. During search, DRI officers found that a green colour cargo container
\nNo.CLHU-2233488 with one time lock MAERSK ML ID 054 9898, laden on container
\nlorry KA-01-AC-5457 was about to start and leave the premises; that adjacent to
\nthe above said lorry, a lorry bearing Registration No.KA-01-B-2111 was found
\nfully loaded with gunny bags containing betel nuts; that bags of betel nuts and
\nbags of cashew nuts were stacked there on the floor; that on enquiry about the
\ngoods in the lorry and stacked on the floor, the said Ramesh informed that the
\nbetel nut bags loaded in the lorry were the betel nut bags unloaded from the
\ncontainer CLHU 2233488 after breaking open the seal of the container and that
\nthe betel nut bags stacked on the floor were the balance of the betel nuts off-
\nloaded from the imported containers three days back and sent out in 8 lorries;
\nthat the cashew nut bags (raw cashew nuts) stacked on the floor were intended to
\nbe substituted in place of the betel nut bags from the import containers
\narriving today. During that time, another lorry bearing Registration No.TN-69-P-
\n9087, laden with container MSKU 2855042 and with one time lock MAERSK ML ID
\n0626929, driven by one Kumar, entered the said premises; that when the DRI
\nofficers broke open the seal of the aforesaid container, it was found stuffed
\nwith betel nut bags; that on enquiry, the said Ramesh, Mariappan and driver
\nKumar informed that the above said container, as per the orders of the detenu
\nwas brought to the above said place for exchange of the goods; that in all, 488
\nbags of betel nuts weighing 43.470 MTs. and 607 bags of raw cashew nuts weighing
\n43.490 MTs were found and the officers of DRI seized them under the provisions
\nof the Customs Act, 1962 under a mahazar; that the officers also seized the
\ncontainer lorries and the two broken parts of the seal mentioned MAERSK ML ID
\n0626931 which were found near the container lorries.\n<\/p>\n
\t4. After recording the statement given by the detenu and one Michael
\nCharles Boopathy, the Manager of the said Firm and after observing formalities,
\nthe detention order was clamped on the detenu.\n<\/p>\n
\t5. The learned Senior Counsel appearing for the petitioner raised the
\nfollowing grounds to set aside the detention order:-\n<\/p>\n
\t(i) Non supply of retracted Confessional Statement of Michael Charles
\nBoopathy vitates the detention  proceedings.\n<\/p>\n
\t(ii) Non supply of Phytosanitary Certificate affects the order of
\ndetentin; and\n<\/p>\n
\t(iii) Furnishing of additional documents after the detention order would
\nshow that the detenu was not given due opportunity to give an effective
\nrepresentation, and that would vitiate the impugned order of detention;\n<\/p>\n
\t6. The first ground is that Michel Charles Boopathy allegedly gave a
\nconfession statement before the Customs authorities. Thereafter, when he was
\nproduced before the learned Magistrate, he retracted the confession. So, there
\nis a retracted confession and that document was not furnished to the detenu to
\nmake effective representation. In support of his contention, he relied on the
\ndecisions reported in 1988 (1) SCC 287 (State of U.P. v. Kamal Kishore Saini)
\nand<\/a> 2000 SCC (Cri) 1304 (A.Sowkath Ali v. Union of India and others<\/a>) and argued
\nthat it is an obligation of the sponsoring authority to place all relevant
\ndocuments before the detaining authority to form a subjective satisfaction, and
\nnon-placement of any such relevant documents vitiates the detention order.\n<\/p>\n
\t7. The learned senior counsel has also relied on the decisions reported in
\n1990 SCC (Crl) 258 (M.Ahamedkutty v. Union of India and<\/a> another); and 1999 SCC
\n(Crl) 231 (Powanammal v. State of T.N. and another); and 2007 (1) MLJ (Crl) 1040
\n(Farzana Haji Sumar v. State of Tamil Nadu)<\/a> for non supplying the documents. In
\nAgamedkutty’s case and also Pownammal’s case, the Hon’ble Supreme Court has
\npointed out that ‘whereas the non-supply of a copy of the document relied upon
\nin the grounds of detention has been held to be fatal to continued detention,
\nthe detenu need not show that any prejudice is caused to him. This is because
\nthe non-supply of such a document would amount to denial of the right of being
\ncommunicated the grounds and of being afforded the opportunity of making an
\neffective representation against the order.’<\/p>\n
\t8. In 2007 (1) MLJ (Crl) 1040 (cited supra), this court has held that the
\nsatisfaction arrived at by the detaining authority is defective and in any
\nevent, the detenu is prejudiced due to the non-supply of relevant documents for
\nmaking effective representation and it vitiates the impugned detention order.\n<\/p>\n
\t9. In a decision reported in 2009 (2) MLJ 245 (E.Raja v. State of Tamil
\nNadu),<\/a> a Division Bench of this Court has held that non-furnishing of surrender
\npetition and remand order will have an adverse effect on the right of detenu to
\nmake an effective representation as to any of the observations made in the
\nremand order. In the above said case, the Division Bench after analysing the
\nJudgments of a Full Bench of this Court reported in G.kalaiselvi v. State of
\nTamil Nadu<\/a> (2007 (2) MLJ (Crl) 1841) and Powanammal’s case, came to the
\nconclusion that furnishing of remand warrant is an important document.\n<\/p>\n
\t10. The learned Senior counsel would submit that Hon’ble Supreme Court has
\ncategorically held that bail application and bail order are vital documents and
\nnon-supply of the vital documents is a violation of Article 22(5) of the
\nConstitution of India.\n<\/p>\n
\t11. According to the learned Senior Counsel, the alleged statement given
\nby the said Michael Charles Boopathy is an admission and his subsequent
\nretraction is a material to this case.\n<\/p>\n
\t12. The learned Public prosecutor vehemently stressed that the statement
\ngiven by the said Michael Charles Boopathy is not a confession and it is an
\nexculpatory statement. In support of his contention, he relied on a decision
\nreported in AIR 1952 SC 354 (Palvinder Kaur v. State of Punjab), wherein it has
\nbeen held that “a confession must either admit in terms the offence, or at any
\nrate, substantially all the facts which constitute the offence. An admission of
\na gravely incriminating fact, even a conclusively incriminating fact is not of
\nitself a confession. A statement that contains self-exculpatory matter cannot
\namount to a confession, if the exculpatory statement is of some fact, which if
\ntrue, would negative the offence alleged to be confessed. A statement which when
\nread as a whole is of an exculpatory character and in which the prisoner denies
\nhis guilt is not a confession and cannot be used in evidence to prove his
\nguilt.”\n<\/p>\n
\t13. In the above said case, the Hon’ble Supreme Court considered the
\nconfession statement of Palvinder dated 15.04.1950. In that case, One Jaspal
\nSingh was fond of hunting as well as of photography. From hunting whatever skins
\n(khalls), he brought home he became fond of colouring them. He also began to do
\nthe work of washing of photos out of eagerness. One day in December 1949 Jaspal
\nSingh said to my cousin Mohinderpal Singh to get him material for washing
\nphotos. The said Mohinderpal Singh said to Harnam Singh, who is head clerk in
\nBallev Nagar Camp, to bring the same from the Cantt. Harnam Singh went to the
\nCantt. and on return said that the material for washing photos could be had only
\nby a responsible Government Official. He told so to Mohinderpal Singh, who said
\nthat Harnam Singh should take his name and get the medicine. Thereupon, Harnam
\nSingh went to the Cantt. and brought the medicine. As the medicine was sticking
\nto the paper the wife of Jaspal Singh put it in water in a small bottle and kept
\nit in the almirah. One day she placed the medicine bottle in the almirah, where
\nmedicine for washing photos had been placed. Her husband took that medicine by
\nmistake and fell down.\n<\/p>\n
\t14. In the case on hand, the statement given by the Michael Charles
\nBoopathy is available at page 78 of the typed set of papers. A perusal of the
\nsaid statement would show that he collected the EIR copy and handed it over to
\nthe said Ramesh and he was aware of the illegal transaction. Further he admitted
\nthat he assisted the detenu in CFS and he also handed over the documents.\n<\/p>\n
\t15. His statement would show that he knew the offence and was actively
\ntook part along with the detenu. The learned senior counsel for the petitioner
\nsubmitted that the statement of Michael Charles Boopathy is an admission and the
\nsaid document was not supplied to the detenu. The statement of the Michael
\nCharles Boopathy before the authorities would show that he was aware of the
\ntransaction and it can be treated as a confession statement. If it is considered
\nas a confession statement, it should have been furnished to the detenu.\n<\/p>\n
\t16. Learned Public Prosecutor would oppose the claim of the petitioner on
\nthe ground that the retracted statement is not a necessary document to be
\nsupplied to the detenu. In support of his contention, he relied on the decisions
\nreported in 2006 (3) SCC (Cri) 270 (Vinod K. Chawla v. Union of India and
\nothers<\/a>) and 1992 SCC (Cri) 1 (Abdul Sathar Ibrahim Manik v. Union of India) and<\/a>
\nstressed that the non supply of retraction statement of Michael Charles Boopathy
\nwill not vitiate the proceedings.\n<\/p>\n
\t17. In 2006 (3) SCC (Cri) 270 (cited supra), the Hon’ble Supreme Court has
\nheld that law does not require that every document or material in possession of
\nsponsoring authority must necessarily be placed before the detaining authority.
\nThis view has been followed in several decisions of this Court. In Abdul Sathar
\nIbrahim Manik v. Union of Inida,<\/a> it was held as under:-\n<\/p>\n
\t“12.(3) If the detenu has moved for bail then the application and the
\norder thereon refusing bail even if not placed before the detaining authority,
\nit does not amount to suppression of relevant material. The question of non-
\napplication of mind and satisfaction being impaired does not arise as long as
\nthe detaining authority was aware of the fact that the detenu was in actual
\ncustody.”\n<\/p>\n
Hence, the Hon’ble Supreme Court was of the view in the above case that failure
\nto supply the statement of the detenu’s son will not vitiate the detention
\norder.\n<\/p>\n
\t18. In  1992 SCC (Cri) 1 (cited supra), the Hon’ble Supreme Court found
\nthat the documents, which are not relied on need not be considered and failure
\nto supply  them will not affect the detention. In the said decision, the Hon’ble
\nSupreme Court has also considered the Judgment in M.Ahamedkutty v. Union of
\nIndia<\/a> reported in (1990 (2) SCC 1) and distinguished the said Judgment.\n<\/p>\n
\t19. The learned Public Prosecutor relied on a decision reported in 2009
\n(2) SCC 612 (State of Andhra Pradesh v. M.Radha Krishna Murthy) and<\/a> argued
\nthat Courts should not place reliance on decisions without discussing as to how
\nthe factual situation fits in with the act situation of the decision on which
\nreliance is placed.\n<\/p>\n
\t20. In this case, the detaining authority came to the conclusion that the
\nconfession of the Michael Charles Boopathy was one of the grounds to take
\nsuitable action against the detenu. The confession statement given by the said
\nMichael Charles Boopathy would show that he assisted the detenu in his business
\nand the statement of the said Michael Charles Boopathy was relied on and
\nconsidered by the detaining authority. The said Michael Charles Boopathy gave a
\nstatement about the corrections made in the Phytosanitary Certificate.\n<\/p>\n
\tParagraph 4 of the detention order reads as follows:-\n<\/p>\n
\t“While arriving at the subjective satisfaction to detain you under the
\nconversation of Foreign Exchange and Prevention of Smuggling Activities Act,
\n1974, the State Government have taken into consideration all the facts and
\nmaterial referred to and relied upon in the grounds mentioned above and also the
\nstatements, bail petitions and mahazars.”\n<\/p>\n
\t21. So, it is seen that the detaining authority has considered the
\nstatement of the said Michael Charles Boopathy and also other documents and came
\nto the conclusion about the detention. So, these documents are relied upon by
\nthe detaining authority to arrive at the subjective satisfaction. While these
\ndocuments were relied on by them, such documents would have been furnished to
\nthe detenu. The failure of the detaining authority to supply the documents would
\naffect the case of the prosecution and it would vitiate the order of detention.\n<\/p>\n
\t22. Tested the case in the light of the above said decisions, we are of
\nthe considered view that the Judgment relied on by the learned Senior Counsel in
\n2009 (2) MLJ 245 (cited supra) is squarely applicable to this case, and the
\ndecision relied on by the learned Public Prosecutor as reported in 2009 (2) SCC
\n612 (cited supra) would not be applicable to the facts and circumstances of this
\ncase. So, the non supply of retracted confession of the Michael Charles Boopathy
\nis a ground to set aside the detention.\n<\/p>\n
\t23. The next ground urged by the learned Senior Counsel for the petitioner
\nis that in spite of a specific request, the Phytosanitary certificate was not
\nfurnished and such action would vitiate the detention order. In support of his
\ncontention he relied on Kalaiselvi’s case and a decision reported in 2008 (2)
\nMLJ (Crl) 379 (Remya and another v. State of Tamil Nadu) wherein a Division
\nBench of this Court has held that ‘when a document is relevant, refusal to
\nsupply a copy thereof, despite the detenu’s request therefore, without valid
\nreason, will vitiate the detention order.’<\/p>\n
\t24. In this case, the Phytosanitary Certificate was relied on by the
\ndetaining authority and the document was sent to the expert opinion. It is the
\nstand of the detaining authority that the documents were corrected to show as if
\n“cashew nuts” were imported and not “betel nuts”. Learned Public Prosecutor has
\nalso pointed out that a perusal of the documents would clearly show that the
\nword “betel nuts” was erased and “cashew nuts” was substituted. The documents
\nwere sent to the expert opinion. So, it is a material document. The detenu also
\nrequested the said document. That was rejected, as immeterial one. Non
\nfurnishing of the copy of this document vitiates the order of detention.\n<\/p>\n
\t25. The learned Senior Counsel for the petitioner submits that after the
\ndetention order was passed, a letter dated 17.04.2009 was sent to the detenu by
\nthe Secretary to Government stating that the following copies are sent to the
\ndetenu, as per direction of the Assistant Director, Directorate of Revenue
\nIntelligence, Chennai:-\n<\/p>\n
\t1) Copy of the mahazar dated 03.03.2009 drawn at CWC, CFS, Tuticorin for
\nseizure of 362.160 Mts of Betel nuts imported by M\/s.Baywoods Exim, Tuticorin in
\n20 containers declaring the description of the goods as raw cashew nuts;\n<\/p>\n
\t2) Copy of the statement dated 24.03.2009 of Thiru K.Daniel, Manager-
\nCustomer Service, Maersk India (P) Ltd., Tuticorin. In this statements he has
\nstated interalia about his presence during the examination and seizure
\nproceedings under mahazars on 02.02.2009, 03.02.2009, 05.02.2009 and 04.03.2009,
\nabout the movement of the import containers at the instance of M\/s.Baywoods
\nExim;\n<\/p>\n
\t3) Copies of the request of M\/s.Baywoods Exim, Tuticorin, Form B-1
\nApplication of M\/s.Maersk Line and application of Central Warehousing
\nCorporation, Tuticorin, all addressed to the Customs, Tuticorin, for movement of
\nimport laden containers from PSA Sical to CWC, CFS, Tuticorin, in respect of 59
\ncontainers out of the 69 containers which were examined under mahazar on
\n05.02.2009 at CWC, Sical, Tuticorin;\n<\/p>\n
\t4) Further notice dated 10.03.2009 for disposal of seized betel nuts;\n<\/p>\n
\t5) Letter dated 24.03.2009 of M\/s.Calileo Unggul Logistics, Indonesia,
\nInteralia praying for stopping all further proceedings with regard to the
\ndisposal of their goods pursuant to notice dated 16.02.2009 and 10.03.2009;
\nreturn of the goods to them; to pay the value of the cashew nuts found missing
\nin 69 containers;\n<\/p>\n
\t6) Reply dated 06.04.2009 sent to M\/s.Galileo Unggul Logistics, Indonesia,
\nfor their above mentioned letter dated 24.03.2009;\n<\/p>\n
\t7) Letter dated 01.04.2009 from Thiru Nita-Diah-Patuan, Indonesia,
\naddressed to the Assistant Director, DRI, Tuticorin, regarding application to
\ncancel or discontinue the process of selling the betel nuts and to re-route the
\nseized perishable goods;\n<\/p>\n
\t8) Reply dated 15.04.2009 for the above letter dated 01.04.2009 of Thiru
\nNita-Diah-Patuan, Indonesia.\n<\/p>\n
\t26. Relying on the above said documents, the learned Senior Counsel for
\nthe petitioner has submitted that after the detention order, additional
\ndocuments were furnished, from which it is clear that the detenu was not in a
\nposition to make effective representation to the detaining authority. In support
\nof his contention, he relied on a decision reported in 1999 SCC (Crl) 299 (State
\nof Tamil Nadu v. Senthil Kumar and<\/a> another), wherein the Hon’ble Supreme Court
\nhas held that the manner in which the documents were served on the detenu did
\ncause confusion to the detenu as he was kept in the dark about the purpose of
\nfurnishing the documents and far from giving him the earliest opportunity to
\nmake an effective representation, it deprived him of the chance of making a
\nrepresentation which resulted in infringement of the right guaranteed under
\nArticle 22(5) of the Constitution of India.\n<\/p>\n
\t27. In the light of the above said Judgment of the Hon’ble Supreme Court,
\nwe are of the view that the detenu was not in a position to give effective
\nrepresentation, as the additional documents were furnished following the
\ndetention order. Hence, on this ground also, the detention order is liable to be
\nset aside.\n<\/p>\n
\t28. The learned Senior Counsel for the petitioner raised a new ground that
\nthe remand report was not furnished to him. For this, he relied on a decision
\nreported in 1992 Crl.L.J. 1927 (1) (K.P.M. BASHEER V. STATE OF KARNATAKA AND
\nANOTHER), wherein it has been held that legal plea can be raised before the
\ncourt even though not specifically taken in memorandum of appeal.\n<\/p>\n
\t29. For this, learned Public Prosecutor relied on a decision reported in
\n2007 (3) SCC (Crl) 439 (Mukesh Tikajo Bora v. Union of India and others<\/a>) and
\nargued that new ground cannot be raised at all.\n<\/p>\n
\t30. The learned Public Prosecutor submitted that there is no pleading to
\nthis effect. So, he cannot raise such a new plea. To strengthen his case, he
\nfurther relied on the decisions reported in 1972 SCC (Crl) 811 (Netaipada Shah
\nv. The State of West Bengal)<\/a>; and 1973 SCC (Crl) 695 (Arun Kumar Sinha v. The
\nState of West Bengal); and 1988 (1) SCC 296 (K.Aruna Kumari v. Government of
\nAndhra Pradesh and others<\/a>).\n<\/p>\n
\t31. In 1972 SCC (Crl) 811 (cited supra), the Hon’ble Supreme Court has
\nobserved that in the absence of any averment in the petition, it cannot be
\nraised.\n<\/p>\n
\t32. In 1973 SCC (Crl) 695 (stated supra) also, the absence of pleadings
\nwas considered. In that case, the plea of FIR was not raised in the petition.
\nSo, the Hon’ble Supreme Court was of the view that such a plea cannot be raised
\nsubsequently.\n<\/p>\n
\t33. Per contra, the learned Senior Counsel for the petitioner relied on
\nthe decisions reported in AIR 1980 SC 1983 (Icchu Devi v. Union of INdia); and
\n1987 SC 1977 (Mohinuddin v. District Magistrate, Beed and others<\/a>); and 1992
\nCrl.L.J.1927 (cited supra).\n<\/p>\n
\t34. In AIR 1980 SC 1983 (stated supra), the Hon’ble Supreme Court has held
\nthat in case of an application for a writ of habeas corpus, the practice evolved
\nby Supreme Court is not to follow strict rules of pleading nor place undue
\nemphasis on the question as to on whom the burden of proof lies. Even a postcard
\nwritten by a detenu from jail is sufficient to activise the court into examining
\nthe legality of detention. The Supreme Court has consistently shown great
\nanxiety for personal liberty and refused to throw out a petition merely on the
\nground that it does not disclose a prima facie case invalidating the order of
\ndetention.\n<\/p>\n
\t35. In 1987 SC 1977 (stated supra), it has been pointed out that it is not
\nproper to disallow the writ petition on the ground of imperfect pleadings.
\nNormally, writ petitions are decided on the basis of affidavits and the
\npetitioners cannot be permitted to raise grounds not taken in the petition at
\nthe hearing. The same rule cannot be applied to a petition for grant of a writ
\nof habeas corpus. It is enough for the detenu to say that he is under wrongful
\ndetention, and the burden lies on the detaining authority to satisfy the court
\nthat the detention is not illegal or wrongful and that the petitioner is not
\nentitled to the relief claimed. It is well settled that it is incumbent on the
\nState to satisfy the Court that the detention of the petitioner\/detenu was legal
\nand inconformity not only with the mandatory provisions of the Act but also
\nstrictly in accordance with the constitutional safeguards embodied in Art.22(5).\n<\/p>\n
\t36. The above said rulings would show that the pleadings need not be
\nconsidered strictly in a writ of habeas corpus. Even in 2007 (3) SCC (Crl) 439
\n(cited supra), relied on by the learned Public Prosecutor the Hon’ble Supreme
\nCourt has held that though there can be no quarrel with the proposition that in
\nsome cases new grounds can be permitted to be urged.  Hence, the petitioner is
\nentitled to raise the new ground. The remand report was not furnished to the
\ndetenu which would also affect the detention.\n<\/p>\n
\t37. The learned Public Prosecutor would vehemently oppose this petition on
\nthe ground that the detenu is an economic offender. So, he is not entitled to
\nthe relief in this petition. He relied on a decision reported in AIR 1982 SC 1
\n(Rattan Singh v. State of Punjab), wherein it has been held as follows:-
\n\t“May be that the detenu is a smuggler whose tribe (and how their numbers
\nincrease) deserves no sympathy since its activities have paralysed the Indian
\nEconomy. But the laws of preventive detention afford only a modicum of
\nsafeguards to persons detained under them and if freedom and liberty are to have
\nany meaning in our democratic set-up, it is essential that at least those
\nsafeguards are not denied to the detenus. Section 11 (1) of COFEPOSA confers
\nupon the Central Government the power to revoke an order of detention even if it
\nis made by the State Government or its officer. That power, in order to be real
\nand effective, must imply the right in a detenu to make a representation to the
\nCentral Government against the order of detention.”\n<\/p>\n
\tIn the above case, even in case of a smuggler, the right of a detenu to
\nmake representation was pointed out.\n<\/p>\n
\t38. On considering the rival submissions made by both sides and the
\nJudgments relied on by the learned Senior Counsel and the learned Public
\nProsecutor, we are of the view that the valid documents were not furnished and
\nthe mandatory provisions were not followed. Hence, the detention order is liable
\nto be set aside.\n<\/p>\n
\t39. Accordingly, the order of detention passed in letter No.SR.1\/097-
\n3\/2009 dated 04.03.2009 by the first respondent is quashed. The Habeas Corpus
\nPetition is allowed.\n<\/p>\n
rj2<\/p>\n
To\n<\/p>\n
1. SECRETARY TO GOVERNMENT
\n   PUBLIC (SC) DEPARTMENT, SECRETARIAT, FORT ST.GEORGE,
\n   CHENNAI – 600 009<\/p>\n
2. THE SECRETARY TO  GOVT.,UNION OF INDIA,MINISTRY OF FINANCE.
\n\t(DEPT.OF REVENUE) NEW DELHI, CENTRAL ECONOMIC INTELLIGENCE
\n\tBUREAU,JANAPATH BHAVAN,B WING, 6TH FLOOR,
\n   JANAPATH BHAVAN, NEW DELHI 100 001<\/p>\n
3. THE JOINT SECRETARY TO GOVERNMENT
\n  (PUBLIC LAW AND ORDER) FORT ST. GEORGE, CHENNAI 9<\/p>\n
4. THE DEPUTY INSPECTOR GENERAL OF POLICE,
\n   CID, INTELLIGENCE, CHENNAI 4<\/p>\n
5. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI<\/p>\n
6. THE ADDITIONAL PUBLIC PROSECUTOR,
\n   MADURAI BENCH OF MADRAS HIGH COURT, MADURAI<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Udhay Nayar vs State Of Tamil Nadu Rep on 18 August, 2009 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 […]<\/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-38523","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nUdhay Nayar vs State Of Tamil Nadu Rep on 18 August, 2009 - 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\/udhay-nayar-vs-state-of-tamil-nadu-rep-on-18-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Udhay Nayar vs State Of Tamil Nadu Rep on 18 August, 2009 - 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