E.Padmanabhan, J.: The petitioner has filed the present habeas corpus petition challenging the order of detention clamped against him by the first respondent in G.O.No.SR.I/353-9/2000 dated 2.5.2000 and to set him at liberty. 2. Heard Mr.B.Kumar, learned senior counsel appearing for Mr.R.Lognathan for the petitioner, Mr.G.M.Syed Fasiuddin, learned Additional Public Prosecutor for the first respondent and Mr.Su.Srinivasan, learned Additional Central Government Standing Counsel for the second respondent. 3. The learned senior counsel appearing for the petitioner raised the following three intentions. (1) Whether there is delay in considering the representation which renders the continuance of detention illegal? (2) Whether the Detaining Authority had failed to consider the suspicious circumstances behind the seizure mahazar and his failure to verify the same vitiates the order of detention? (3) Whether the consideration of further development document behind the back of detenu and in violation of Principles of natural justice at the stage of confirmation vitiates the detention? 4. Before taking up the above contentions for consideration, it is essential to set out the details leading to the clamping of detention against the petitioner. 5. The detenu Murugesu, a Srilankan Citizen arrived at Anna International Airport, Chennai from Colombo on 9.3.2000. The detenu after collecting his baggage declared that he is not in possession of any VCP/VCR/Gold/Diamond and he declared the value of goods at Rs.500 only. The detenu was questioned as to his possession of any gold or any other prohibited items. As the Officers suspected the detenu his “Keno” black colour stroller bag was examined in the presence of independent witnesses. The adapters found in the bag were unusually heavy and or opening of the adapters gold bits were found concealed inside the transformer coil in each of the adapters. The search of the stroller bag resulted in the recovery of 9 strips of gold concealed totally weighing 741 grams, which was wrapped in black tape and stuck on the inner side groove of the beading and covered with black plastic strips and in all 1207 gms of gold concealed were recovered from the baggage of the detenu valued at Rs.5,53,047 according to the market value. The gold biscuits were seized under a valid mahazar. 6. The detenu made a voluntary statement on 9.3.2000, narrating the sequence of events that led to the seizure of gold bits and gold strips.
The gold biscuits were seized under a valid mahazar. 6. The detenu made a voluntary statement on 9.3.2000, narrating the sequence of events that led to the seizure of gold bits and gold strips. The detenu stated that for a monetary benefit of Rs.3,000 along with air tickets he had done this. The gold strips and bits were certified as 24 carat gold. On 9.3.2000, a further voluntary statement was recorded by the Customs Officials. The detenu had made frequent visits to India and he had used the additional passport also for the purposes of visits. But for the timely intervention, the detenu would have cleared valuable gold without payment of customs duty. 7. It is a clear case of concealment to smuggle gold. The detenu had committed the act of smuggling in a well design and well planned manner. On the said materials, which are self sufficient, the order of detention had been clamped. As the Detaining Authority arrived at the subjective satisfaction that the detenu is a smuggler and that he has to be detained with a view to prevent him from indulging in such activities in the future, the order of detention was clamped against him. 8. The detenu sent his first retraction letter on 24.3.2000 after a lapse of fortnight. Even in the first retraction, nowhere the detenu had alleged that the corrections were made by the officers and that his signatures were forged by the Customs Officers on 7.4.2000. The detenu sent another retraction letter and even in the second retraction letter also there is no allegation that the Customs Officers have manipulated the seizure mahazar or that they have mixed up the gold brought by two other Srilankans along with that of the detenu. 9. Those retractions and allegations according to the Detaining Authority have been made as on afterthought against the Customs Officers and with; ulterior purpose. It is contended that the Detaining Authority after application of his mind and in particular after going through the mahazar, forwarding memo and the confession statements as well as the two retraction letters clamped the order of detention and therefore according to the Detaining Authority no interference is called for. 10.
It is contended that the Detaining Authority after application of his mind and in particular after going through the mahazar, forwarding memo and the confession statements as well as the two retraction letters clamped the order of detention and therefore according to the Detaining Authority no interference is called for. 10. On a perusal of the order of detention we are of the considered view that the Detaining Authority has arrived at the subjective satisfaction and also considered the retraction letters and thereafter clamped the order of detention. There is no illegality in the said clamping of detention. There are sufficient materials for the Detaining Authority to arrive at the subjective satisfaction and this Court would not be justified at all to examine the subjective satisfaction arrived at by the Detaining Authority. 11. We shall take up the contentions advanced by the learned senior counsel for the petitioner in the above order. 12. The detenu submitted his representation dated 19.5.2000 which reached the hands of the State Government only on 22.5.2000. On 22.5.2000 remarks were called for from the Customs Department. 27.5.2000 and 28.5.2000 being Saturday and Sunday were closed holidays. The parawise remarks were received on 29.5.2000. Further remarks were called for from the Public (SC) Department on 30th of May, 2000. On 30.5.2000 the file was circulated by the Public (Law & Order) Department. On 31.5.2000, the Under Secretary to Government, Public (Law and Order) Department considered the representation. On 1.6.2000, the Deputy Secretary to Government, Public (Law and Order) Department considered the representation. The Secretary to Government Public Department considered the same on the next date, 3rd and 4th June, 2000 being Saturday and Sunday were closed holidays. On 5.6.2000 the Secretary to Government, Law Department considered the representation and on 6.6.2000 the Hon’ble Minister for Law considered and rejected the representation. On 7.6.2000 the rejection was communicated to the detenu and the same was acknowledged by the detenu on 7.6.2000. Hence it is clear that there is no delay in considering the representation by the Detaining Authority. 13. So far as the second respondent is concerned, the representation dated 19.5.2000 addressed to the Secretary to Government of Tamil Nadu, Public (SC) Department was received by the Central Government on 24.5.2000 through Superintendent, Central Prison, Chennai. On 24.5.2000, the parawise remarks were called from the sponsoring authority.
13. So far as the second respondent is concerned, the representation dated 19.5.2000 addressed to the Secretary to Government of Tamil Nadu, Public (SC) Department was received by the Central Government on 24.5.2000 through Superintendent, Central Prison, Chennai. On 24.5.2000, the parawise remarks were called from the sponsoring authority. On 1.6.2000 parawise comments were received by the Central Government and on the same day it was taken up for consideration by the concerned Secretary (COFEPOSA). The Sponsoring Authority had sent further letter dated 30.5.2000 which was relieved by the Central Government on 5.6.2000 on which date, itself, it was circulated to the concerned Deputy Secretary. On 6.6.2000 the file was put up before the Joint Secretary (COFEPOSA). On 7.6.2000, it was placed before the Special Secretary-cum-Director General, Central Economic Intelligence Bureau and after consideration, it was rejected. Hence there is also no delay in considering the representations submitted by the detenu to the Central Government as the Central Government on facts, it is clear had considered the representations expeditiously. The learned senior counsel appearing for the petitioner is unable to point out any delay in this respect. 14. Further, the learned senior counsel contended that there is a delay in considering the representation dated 23.5.2000 addressed to His Excellency. The President of India through Mr.V.Saravanan, Advocate on behalf of the detenu. Here it has to be pointed out that this representation is a second representation and there is no delay at all as it had received expeditious consideration. As the representation had been addressed to His Excellency President of India, which reached the Secretary only on 2.6.2000. Thereafter parawise comments were called from the Sponsoring Authority on 2.6.2000 and a reminder also was sent. The Sponsoring Authority received the parawise remarks and thereafter the second representation was considered and disposed of without delay. Hence the first contention advanced has to be answered against the petitioner. 15. As regards the second contention, Mr.B.Kumar, the learned senior counsel while referring to the seizure mahazar pointed out certain scorings and persuaded this Court to infer that the gold seized from two other Srilankan Nationals have been clubbed with that of the detenu and the Detaining Authority should have considered the same. On merits such a contention, it could be stated is devoid of merits.
On merits such a contention, it could be stated is devoid of merits. It is true that there is a correction at one place and a scoring in another place, but they have been made even at the time of preparing mahazar itself. 16. The detenu had also counter signed those corrections or scorings. The learned senior counsel sought to contend that those signatures are not that of the detenu and it is a case of forgery and that the Detaining Authority should have referred the same to the handwriting expert. Here again, we are unable to agree with the contention advanced by the counsel for the petitioner. Such, a belated contention had been advanced out of frustration. In this respect it has to be pointed out that the Detaining Authority had considered the entire material and contemporaneous documents and had arrived at the subjective satisfaction. The detention is preventive definition and in the present proceedings the truth or otherwise cannot be gone into and it is not as if it is a criminal prosecution. 17. In fact, the detenu had made allegations against the Customs Officers as if they have forged his signature, which deserve to be rejected as the signature of the detenu as seen from the Mahazar, confession statements and retraction letters are consistent and there is no basis for such a contention. The statements were written by the detenu voluntarily and he had himself corrected it when patent mistake was pointed out by the officers. The statements were written by the detenu in his own handwriting and the discrepancy, when pointed out he had corrected the total number of gold strips recovered. The Detaining Authority had considered the said materials as well, besides the forwarding mahazar shows only 9 gold strips. 18. According to the respondents, the detenu was c aught red handed and the examination resulted in the recovery of 9 gold strips and 8 gold bits. The corrections, if any according to the respondents will not vitiate the detention order. Such a mistake or contemporaneous correction will not vitiate the detention order. 19. Further the petitioner did not raise any dispute nor he had challenged the corrections or counter signature as forged either in the first retraction letter submitted on 24.3.2000 or in the second retraction letter dated 7.4.2000.
Such a mistake or contemporaneous correction will not vitiate the detention order. 19. Further the petitioner did not raise any dispute nor he had challenged the corrections or counter signature as forged either in the first retraction letter submitted on 24.3.2000 or in the second retraction letter dated 7.4.2000. Belatedly at the time of filing of Habeas Corpus Petition such an allegation has been made. 20. We are satisfied that the detenu himself had affixed the signature wherever correction has been made and there is no basis for the contention that the customs officials have forged the signature of the detenu on 9.3..2000. 21. The Detaining Authority had gone through the mahazar, forwarding memo, statement of the detenu in Tamil as well as English as well as two retraction letters dated 24.3.2000 and 7.4..2000 and after application of mind arrived at the subjective satisfaction. Hence the second contention cannot be sustained on facts. Further it is the subjective satisfaction which has been arrived at by the Detaining Authority and there are materials for the Detaining Authority to arrive at the subjective satisfaction. The subjective satisfaction arrived at cannot be held to be perverse or arbitrary as there are sufficient materials and as the detenu had concealed the valuable gold strips and gold bits inside his trolley bag. The contemporaneous documents have not been controverted and at any rate the countersignature of the detenu will not support the contention advanced on behalf of the petitioner. 22. Further it is not necessary for the Detaining Authority to refer the documents to handwriting expert as there are materials which are contemporaneous which would justify the Detaining Authority in arriving at the subjective satisfaction. This is not a criminal trial where the prosecution has to substantiate the case. In fact the detenu himself had admitted the signatures in the statement as well as the correction as seen from his retraction letter and therefore, it is too puerile to contend that the customs officials have forged the signature of the detenu. This contention has to fail. 23. The last of the contentions being that the further development documents have not been disclosed and there is a violation of Principles of natural justice.
This contention has to fail. 23. The last of the contentions being that the further development documents have not been disclosed and there is a violation of Principles of natural justice. In this respect the learned senior counsel relied upon the decision of the Apex Court in State of Andhra Pradesh and another v. Balajangam Subbarajamma, 1989 S.C.C. (Crl.) 75; State of Tamil Nadu v. Senthil Kumar and another, 1999 S.C.C. (Crl.) 299. 24. While meeting out this contention, the learned Additional Public Prosecutor pointed out that at the stage of confirmation, further development documents placed before the confirming authority being (i) bail dismissal order dated 26.4.2000 and (ii) the remand extension order dated 2.5.2000. In this case, the order of detention had been passed on 2.5.2000. The bail dismissal order is not only known to the detenu, but also to his counsel. So also the remand extension Order. It is not as if those documents were not known to the detenu at all nor some foreign materials which has got any bearing or which would have in any manner rendered the confirmation illegal had been placed before the authorities as further development documents. Further there is sufficient materials before the Detaining Authority as well as the confirming authority as the very detention had been clamped on the materials relied upon and the further development documents had not in any manner influenced the confirming authority. 25. Further as held by the Apex Court in Abdul Sathar Ibrahim Manik v. Union of India and others, 1992 S.C.C. (Crl.) 1 the further development documents in this case being (i) bail rejection order dated 26.4.2000 and remand extension order dated 2.5.2000 are not material documents at all. In this respect, the decision of the Apex Court had been rightly relied upon by the learned Public Prosecutor in Vijay Kumar v. Union of India and others, 1988 S.C.C. (Crl.) 293, wherein their Lordships held thus: “38. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit. The expression”as it thinks fit“in Sec.8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention.
The expression”as it thinks fit“in Sec.8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention. The Authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Sec.10. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. Sec.11 provides for revocation of detention order. The detention order may at any time be revoked or modified. When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.” 26. In Abdul Sathar Ibrahim Manik v. Union of India and others, 1992 S.C.C. (Crl.) 1 the Apex Court while summerising its conclusions held thus: “(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.” (4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu’s right of being afforded a reasonable opportunity guaranteed under Art.22(5) when it is clear that the authority has not relied or referred to the same. (5) When the Detaining Authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the Detaining Authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount of violation of Art.22(5) of the Constitution of India.
Only when the Detaining Authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount of violation of Art.22(5) of the Constitution of India. Whether in a given case the Detaining Authority has casually or passingly referred to the documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court. While following the above pronouncement of the Apex Court, the last of the contentions advanced also deserves to be rejected. 27. Reliance was placed on the decision of the Apex Court in State of Tamil Nadu v. Senthil Kumar and another, 1999 S.C.C. (Crl.) 299 by the counsel for the petitioner. The said decision is clearly distinguishable on facts as in this case, the subsequent development document are not new documents not they are material documents nor they have in any manner influenced the confirmation of detention as there are sufficient materials which are contemporaneous and based upon which the order of detention has been passed and confirmed by the confirming authority. When there are sufficient materials before the Detaining Authority as well as confirming authority and those materials were considered by the Detaining Authority, the third contention advanced by the counsel for the petitioner cannot be sustained at all. There is no violation of principles of natural justice on the facts of the case as the two further development documents referred to were not only known to the detenu but also they are not material documents. The detenu was very much aware of the remand extension as well as the rejection of bail order. Hence, the last of the contention also fails. 28. In the circumstances, this habeas corpus petition fails and it is dismissed as all the three contentions fail.