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2000 DIGILAW 1241 (MAD)

Sheik Midar v. State of Tamil Nadu

2000-12-05

C.NARAYANA KURUP, E.PADMANABHAN

body2000
JUDGMENT E.Padmanabhan, J.: In this habeas corpus petition, the petitioner challenges the order of detention clamped against him on 9.8.2000 by the first respondent in exercise of powers conferred under Sec.3(1)(i) of the Central Act 52 of 1974. 2. Heard Mr.K.A.Jabbar, learned counsel for the petitioner, Mr.G.M.Syed Fasiuddin, learned Additional Public Prosecutor for the respondent Nos.1 and 3 and Mr.Su.Srinivasan, A.C.G.S.C. for the second respondent. 3. Before taking up the contentions advanced, it is essential to set out the details leading to the clamping of the detention against the petitioner. The petitioner holder of Indian passport arrived at Chennai International Airport from Singapore by Singapore Airlines with one baggage and four checked in baggages. Airlines with one baggage and four checked in baggages. The detenu was intercepted at Customs Table No.24 where he had declared the value of the goods at Rs.4,000 and also he declared that he is not in possession of any Gold/Silver. The detenu was questioned and not satisfied with the reply, the detenu was taken to Air Intelligence Unit Room for a detailed examination of his baggages. On examination of the baggages the following items in commercial quantities were seized under a Mahazar. (i) 50 Nos. of Samsung SGH 600 cellular phones with accessories. (ii) 50 Nos. of Siemens C 25 Cellular phones with accessories. (iii) 300 Nos. of Casio SF 4900 EWR Digital Diaries. (iv) 35 Nos. of Akica KR 7275 cameras. (v) 1200 Nos. of sun glasses. The above goods were seized for violation of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 as the detenu has grossly misdeclared the value of the goods. 4. The detenu made a voluntary statement on 27.6.2000 wherein he had inter alia stated that he used to go abroad to buy goods and sell them at Chennai and earn Rs.5,000 a month and also admitted the recovery of the above enumerated goods which he had failed to declare to evade customs duty. 4. The detenu made a voluntary statement on 27.6.2000 wherein he had inter alia stated that he used to go abroad to buy goods and sell them at Chennai and earn Rs.5,000 a month and also admitted the recovery of the above enumerated goods which he had failed to declare to evade customs duty. On 28.6.2000, the detenu made another voluntary statement in continuation of his earlier statement wherein he had admitted his usual operations, namely, frequent trips to Singapore, purchase of various valuable goods, that he used to make a living out of it, that one Mohammed Yunus entrusted the bags, which the detenu had taken as his baggages for a consideration of Rs.10,000 that the said Mohammed Yunus had advised him to declare the value of the goods at Rs.4,000 and other details leading to the seizure of the above mentioned items. As the detenu has rendered himself liable for action under The Customs Act, 1962 and also for offences punishable under the penal provisions of the said Act, he was arrested on 28.6.2000 and remanded to judicial custody till 12.7.2000. An application for bail moved on behalf of the detenu was resisted and it came to be dismissed by the Additional Chief Metropolitan Magistrate EOI on 12.7.2000. Thereafter, the remand was extended. On the sponsoring authority placed the papers before the first respondent, who on the materials placed before him arrived at the subjective satisfaction that the detenu is a smuggler and he has to be obtained to prevent him from indulging in such prejudicial activities in future. 5. The order of detention had been passed on 9.8.2000 and it had been served on 10.8.2000. The grounds of detention was served on 11.8.2000. The respondents have filed their counter controverting the various averments set out in the affidavit filed in support of the habeas corpus petition and contended that no interference is called for with respect to the subjective satisfaction arrived at, besides contending that the various contentions advanced are devoid of merits, besides they are based on factual misconception. The contentions advanced by the learned counsel for the petitioner is taken up for consideration in the order in which it was advanced. 6. The contentions advanced by the learned counsel for the petitioner is taken up for consideration in the order in which it was advanced. 6. Mr.K.A.Jabbar, the learned counsel for the petitioner contended that the order of detention is vitiated by non-application of mind in that the retraction letters had not been placed before the Detaining Authority, and placed reliance on the decision of the Apex Court in Ahamed Nassar v. State of Tamil Nadu and others, 1999 S.C.C. (Crl.) 1469. It is the contention of the learned counsel for the petitioner that all the retraction letters written by the detenu or on his behalf have not been placed before the Detaining Authority and this omission is fatal and the order of detention is liable to be quashed. 7. While meeting the said contention, the learned counsel appearing for the respondents pointed out that the detenu was intercepted on 27.6.2000, taken to custody on 28.6.2000 and remanded to judicial custody on the same day. A bail application was moved on 28.6.2000 itself, before the Additional Chief Metropolitan Magistrate E.O.I., wherein whatever statements that had been recorded on the two occasions have been retracted by the detenu. On the earliest occasion, such a retraction was made. When the retraction made by the detenu at the earliest opportunity retracting his two statements in its entirety have been placed before the Detaining Authority and it had been taken into consideration by the Detaining Authority, while arriving at the subjective satisfaction and non-placement of subsequent repetitive representations make no difference at all. The subsequent retractions made on 30.6.2000, 3.7.2000, 10.7.2000 and 13.7.2000 being repetition simpliciter are of no consequence. In other words, the earliest recorded on 27.6.2000 as well as 28.6.2000 in its entirety was taken into consideration by the Detaining Authority. Therefore, according to the learned counsel for the respondents the non-placement of the repetitive retractions prior to the clamping of detention in the present case is of no consequence and the contention cannot be sustained at all. There is substance in the said contention advanced by the counsel for the respondents. 8. Therefore, according to the learned counsel for the respondents the non-placement of the repetitive retractions prior to the clamping of detention in the present case is of no consequence and the contention cannot be sustained at all. There is substance in the said contention advanced by the counsel for the respondents. 8. While reacting to the said reply the learned counsel for the petitioner sought to contend that the four retraction letters relate to the different portions of the confession statements and different aspects have been highlighted and therefore, the contention still holds good and the counsel for the petitioner tried to intersect letter by letter and sought to contend that retractions are different and it relates to different aspects. We are unable to persuade ourselves to sustain such a contention. When a retraction has been made at the earliest opportunity in respect of the entirety of two confession statements and the same had been taken into consideration by the Detaining Authority while arriving at the subjective satisfaction, it is not necessary to place the subsequent repetitive retractions which are also to the same effect and it relates to the same statements of confession. 9. It is not as if the Detaining Authority had not been apprised or the retraction letters had not been placed before the Detaining Authority. In this respect there is no difference much less materially between the earliest retraction set out in the bail application vis-a-vis latter retraction letters dated 30.6.2000, 3.7.2000, 10.7.2000 and 13.7.2000. Hence we are of the considered view that as the pre-detention representation namely, retraction made at the earliest opportunity with respect to the two confession statements made by the detenu had been placed and considered by the Detaining Authority. This makes no difference on the facts of the present case. The subsequent repetition and non-placement thereof will not vitiate the order and the detention is not vitiated by non-application of mind. We also hasten to add that when the confessions recorded on the two dates had been retracted in its entirety and challenged as vitiated by threat, coercion, etc. It is of no consequence by merely adding few more words or sentences or highlighting one or other of the materials set but in latter retraction letters. We also hasten to add that when the confessions recorded on the two dates had been retracted in its entirety and challenged as vitiated by threat, coercion, etc. It is of no consequence by merely adding few more words or sentences or highlighting one or other of the materials set but in latter retraction letters. The representation is required to be considered and it is the subjective consideration and it is not as if the Detaining Authority is expected to consider the same objectively. Being a subjective one, the non-reference to the latter repetitive retractions will not in any way advance the contention of the petitioner. Hence this contention fails. 10. Secondly it was contended by the learned counsel for the petitioner that the order of detention is vitiated in that Sec.3(iii) of the COFEPOSA Act has been violated apart from Art.22(5) of the Constitution in that full and complete Tamil translation of the Customs declaration card was not supplied to the detenu along with the grounds of detention. 11. As seen from page 28 of the paper book it is admitted that the said declaration contains the signature of the detenu and he has filled up his name, flight number, but what is; disputed is the details or contents of the baggage and the valuation of the contents at Rs.4,000. The tamil translation of the said declaration is available in page 29 of the paper book. By comparison of pages 28 and 29 of the paper book, columns 3 and 4 though filled up in English in Tamil translation do not carry the corresponding two entries in the said columns 3 and 4. While highlighting this, the counsel for the petitioner contended that the order of detention is vitiated as the detenu has not been served the full and complete text of his declaration and incomplete translation is no translation at all. 12. It is also contended that mere explaining or translation, while serving the order of detention will not be sufficient compliance of Art.22(5) unless accompanied by a written translation. While elaborating the said contention, it is further contended that it is a relied upon document. The learned counsel also hasten to add that the detenu has no working knowledge in English as seen from the endorsement that the detention order has been explained and read over to the detenu. 13. While elaborating the said contention, it is further contended that it is a relied upon document. The learned counsel also hasten to add that the detenu has no working knowledge in English as seen from the endorsement that the detention order has been explained and read over to the detenu. 13. In this respect, the learned counsel appearing for the respondents contented that the said declaration is not a relied upon document but it is only a causally referred document and that the detenu has a working knowledge in English and therefore, the contention deserves to be rejected. The learned counsel for the Kamarunnissa v. Union of India and another, (1991( 1 S.C.C. 128. The declaration referred to by the petitioner is a declaration which he was required to make and it is his own declaration made in terms of the statutory provisions of the Customs Act. 14. It is only a declaration made on a printed card form which contains four columns. The following is the format. 1. Name in Full: ……. 2. Flight No.: ……. 3. No. of Packages: ……. (a) Checked baggage: ……. (b) Hand Baggage ……. 4. Total value of dutiable goods being imported Signature of Passenger MaZ 6B: It is admitted that the substantial portion of the said declaration was filled up by the detenu and the signature therein is also admitted. Further entry which is relevant reads “No gold/silver O.G. V.Rs.4000” 15. This is not a case where it could be stated that anyone else had filled up the declaration as admittedly no gold or silver had been brought by the detenu nor the same is the case of the respondents, the detenu had declared the value of the baggage at Rs.4,000. This writing alone is controverted and it is alleged that someone else had filled up the same. The truth or falsity of such declaration cannot be gone into in habeas corpus petition as it is not a criminal prosecution. 16. At the risk of repetition, it has to be pointed out that the Detaining Authority had satisfied himself on the materials placed that the detenu is a smuggler and for such subjective satisfaction there is sufficient materials such as seizure, mahazar, confession statements, etc., copies of which have been furnished to the detenu also. 16. At the risk of repetition, it has to be pointed out that the Detaining Authority had satisfied himself on the materials placed that the detenu is a smuggler and for such subjective satisfaction there is sufficient materials such as seizure, mahazar, confession statements, etc., copies of which have been furnished to the detenu also. In this respect the learned counsel for the respondents relied upon the decision of the Apex Court in Kamarunnissa v. Union of India and another, (1991) 1 S.C.C. 128 wherein in respect of an identical contention the Apex Court held that the declaration of present nature with respect to which the contention advanced in this case is not a material document, but it is merely an incidental reference and therefore the same would not vitiate the order of detention. 17. The Apex Court further held that there is no obligation cast on the part of the Detaining Authority to supply copy of the said declaration in Tamil language and the view taken by the High Court had been upheld. Their Lordships in this respect held thus: “…..The High Court while dealing with this contention came to the conclusion that the declarations made by the detenus at the airport were neither relied on nor referred to in the grounds of detention. As regards the search authorisations, it may be pointed out that although there is a mention of the premises searched in the grounds of detention, the incriminating material found has neither been used nor made the basis for formulating the grounds of detention. Mere reference to these searches by way of completing the narration cannot entitle the detenus to claim copies of the search authorisations. The High Court, therefore, rejected this contention by observing as under: “We fail to understand how the Detaining Authority can be compelled to give documents which were not relied upon while arriving at the subjective satisfaction. We are also unable to appreciate how the declaration made by the detenu before proceeding to board the aircraft has any relevance while considering whether the order of detention should be passed to prevent the detenu from indulging in any prejudicial activities in future. We are also unable to appreciate how the declaration made by the detenu before proceeding to board the aircraft has any relevance while considering whether the order of detention should be passed to prevent the detenu from indulging in any prejudicial activities in future. In our judgment, the complaint that some documents which according to the detenu were relevant for making representation were not furnished by the Detaining Authority and, therefore, the order or the continuation of the detention is bad, is without any substance.” …. …. …. …. …. …. [Italics supplied] If, merely an incidental reference is made to some part of the investigation concerning a co-accused in the grounds of detention which has no relevance to the case set up against the detenus it is difficult to understand how the detenus could contend that they were denied the right to make an effective representation. It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the non-supply has impaired the detenu's right to make an effective and purposeful representation. Demand of any or every document, however irrelevant it may be for the concerned detenu, merely on the ground that there is a reference thereto in the grounds of detention, cannot vitiate and otherwise legal detention order.” 18. It is also pointed out by the counsel for the respondents that the detenu possess a working knowledge in English and the contention advanced in this respect by the counsel for the petitioner is a factual misconception as admittedly the very declaration made by the detenu in English had been furnished. The detenue signed in English and his signature is well set. The detenu had written the following words in English by his own hand. “Received copy” and signed as Sheik Midar in the seizure mahazar and the same had been written on 27.6.2000. The detenu's passport would also show that he is a resident of Madras and he had signed the passport in English. The detenu is a frequent visitor to Singapore. The detenu had filled up the customs declaration in his own handwriting and affixed his signature in English. The detenu had given his confession statement running to two pages in his own handwriting, here the corrections had been countersigned by him in English. The detenu is a frequent visitor to Singapore. The detenu had filled up the customs declaration in his own handwriting and affixed his signature in English. The detenu had given his confession statement running to two pages in his own handwriting, here the corrections had been countersigned by him in English. In his second confession statement, the detenu had stated that he knows to read, write and tamil, but he used to sign in English. 19. On the instructions given by the detenu, bail application has been filed by his counsel setting forth all the details of the recovery and seizure as well as retraction. So also the second bail application was moved on his behalf. Only for the first time, it is sought to be raised in the present habeas corpus petition that the detenu is not conversant in English, but the detenu had nowhere disclosed what is his educational qualifications. We are satisfied on the materials that the detenu has a working knowledge of English language. The copy of the declaration served on the detenu is in English with all the columns filled up. Therefore on this count also the contention advanced cannot be sustained. 20. The counsel for the petitioner after our reserving orders and when the orders are ready for delivery made a special mention and also took out an application to raise an additional ground, which according to the learned counsel renders the detention invalid. In H.C.M.P.No.256 of 2000, we called upon the Additional Central Government Standing Counsel to file a counter. Accordingly, the counter has been filed today on behalf of the Central Government. 21. The third contention advanced deserves to be accepted as there is inordinate delay in considering the representation submitted by the petitioner and it is an infraction of Art.22(5) of the Constitution. It would be sufficient to refer to few of the dates. 22. Representation dated 26.8.2000 was forwarded through the Central Jail Superintendent, which reaches the hands of the Central Government on 29.8.2000. On 30.8.2000, the Central Government called for parawise comments from the sponsoring authority. On 5.9.2000, the parawise comments submitted by the sponsoring authority was received by the COFEPOSA unit of the Central Government. On 6.9.2000, the case file was placed before the Deputy Secretary (COFEPOSA Unit). On 30.8.2000, the Central Government called for parawise comments from the sponsoring authority. On 5.9.2000, the parawise comments submitted by the sponsoring authority was received by the COFEPOSA unit of the Central Government. On 6.9.2000, the case file was placed before the Deputy Secretary (COFEPOSA Unit). On 7.9.2000 the Deputy Secretary processed the file and submitted the file to the Joint Secretary, who perused the same and sought for additional information. On 8.9.2000, information was called for from the Sponsoring Authority by fax. On 11.9.2000, information was received by the Central Government with respect to the additional information sought for. On 12.9.2000, the said information was diarised in COFEPOSA unit. On 13.9.2000, the file was re-submitted to the Deputy Secretary as well as the Joint Secretary. The Joint Secretary once again called for further clarification. 23. On 14.9.2000, the information was called for from the Sponsoring Authority by fax. On 22.9.2000, the information was received by the. Central Government. Between 14.9.2000 and 22.9.2000, there are few days, which Sponsoring Authority had taken to furnish the particulars called for on 23.9.2000 and 24.9.2000 which were closed holidays. Once again on 25.9.2000, the file was re-submitted to the Deputy Secretary, who in turn had forwarded the same to the Joint Secretary on 26.9.2000. 24. On 27.9.2000, the concerned Joint Secretary once again called for further remarks in the light of the judgment of the Apex Court in A.Sowkath Ali v. Union of India, (2000)7 S.C.C. 148 . The file was re-submitted to the Joint Secretary on 28.9.2000. The Joint Secretary called for additional information in the light of the decision of the Apex Court on 29.9.2000. The information was received by the Central Government only on 20.10.2000 after a delay of twenty seven days. Thereafter, on 23.10.2000, once again specific comments were called for from the sponsoring authority by fax, which was submitted on 27.10.2000. On 27.10.2000, the Joint Secretary submitted the file to the Special Secretary-cum-Director General, CEIB. Only on 3.11.2000, the representation was considered and rejected by the Special Secretary. 25. We have seen from the above dates, though the file was in movement from 29.8.2000 to 29.9.2000, there had been no movement of file between 29.9.2000 and 20.10.2000. In fact, between 29.9.2000 and 20.10.2000, reminder had been sent by the Central Government to the Sponsoring Authority to forward the requisite information called for. 25. We have seen from the above dates, though the file was in movement from 29.8.2000 to 29.9.2000, there had been no movement of file between 29.9.2000 and 20.10.2000. In fact, between 29.9.2000 and 20.10.2000, reminder had been sent by the Central Government to the Sponsoring Authority to forward the requisite information called for. Even after reminder, the Sponsoring Authority had taken considerable number of days to forward the information. Thereafter, the file was lying with the Special Secretary between 27.10.2000 and 3.11.2000. Here again, there is no explanation at all for the delay in the Special Secretary taking up the file and considering the representation. Thus, during the two spells, there is a delay and the delay is inordinate. No explanation has been assigned by the respondents explaining the delay during the two spells. In other words, the file was lying uncared for and this shows indifference and the delay pointed out by the counsel for the petitioner renders the detention illegal. 26. In the circumstances, only on the third contention, the habeas corpus petition has to be allowed, as the detention has been rendered illegal, since there is an infraction of Art.22(5) of the Constitution. 27. In the circumstances, the order impugned is quashed. The habeas corpus petition is allowed and there will be a direction to the respondents to set the detenus at liberty forthwith unless his presence is required in any other case. The above goods were seized for violation of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992 as the detenu has grossly misdeclared the value of the goods. The detenu made a voluntary statement on 27.6.2000 wherein he had inter alia stated that he used to go abroad to buy goods and sell them at Chennai and earn Rs.5,000 a month and also admitted the recovery of the above enumerated goods which he had failed to declare to evade customs duty. The detenu made a voluntary statement on 27.6.2000 wherein he had inter alia stated that he used to go abroad to buy goods and sell them at Chennai and earn Rs.5,000 a month and also admitted the recovery of the above enumerated goods which he had failed to declare to evade customs duty. On 28.6.2000, the detenu made another voluntary statement in continuation of his earlier statement wherein he had admitted his usual operations, namely, frequent trips to Singapore, purchase of various valuable goods, that he used to make a living out of it, that one Mohammed Yunus entrusted the bags, which the detenu had taken as his baggages for a consideration of Rs.10,000 that the said Mohammed Yunus had advised him to declare the value of the goods at Rs.4,000 and other details leading to the seizure of the above mentioned items. As the detenu has rendered himself liable for action under The Customs Act, 1962 and also for offences punishable under the penal provisions of the said Act, he was arrested on 28.6.2000 and remanded to judicial custody till 12.7.2000. An application for bail moved on behalf of the detenu was resisted and it came to be dismissed by the Additional Chief Metropolitan Magistrate EOI on 12.7.2000. Thereafter, the remand was extended. On the sponsoring authority placed the papers before the first respondent, who on the materials placed before him arrived at the subjective satisfaction that the detenu is a smuggler and he has to be obtained to prevent him from indulging in such prejudicial activities in future. The order of detention had been passed on 9.8.2000 and it had been served on 10.8.2000. The grounds of detention was served on 11.8.2000. The respondents have filed their counter controverting the various averments set out in the affidavit filed in support of the habeas corpus petition and contended that no interference is called for with respect to the subjective satisfaction arrived at, besides contending that the various contentions advanced are devoid of merits, besides they are based on factual misconception. The contentions advanced by the learned counsel for the petitioner is taken up for consideration in the order in which it was advanced. The contentions advanced by the learned counsel for the petitioner is taken up for consideration in the order in which it was advanced. Mr.K.A.Jabbar, the learned counsel for the petitioner contended that the order of detention is vitiated by non-application of mind in that the retraction letters had not been placed before the Detaining Authority, and placed reliance on the decision of the Apex Court in Ahamed Nassar v. State of Tamil Nadu and others, 1999 S.C.C. (Crl.) 1469. It is the contention of the learned counsel for the petitioner that all the retraction letters written by the detenu or on his behalf have not been placed before the Detaining Authority and this omission is fatal and the order of detention is liable to be quashed. While meeting the said contention, the learned counsel appearing for the respondents pointed out that the detenu was intercepted on 27.6.2000, taken to custody on 28.6.2000 and remanded to judicial custody on the same day. A bail application was moved on 28.6.2000 itself, before the Additional Chief Metropolitan Magistrate E.O.I., wherein whatever statements that had been recorded on the two occasions have been retracted by the detenu. On the earliest occasion, such a retraction was made. When the retraction made by the detenu at the earliest opportunity retracting his two statements in its entirety have been placed before the Detaining Authority and it had been taken into consideration by the Detaining Authority, while arriving at the subjective satisfaction and non-placement of subsequent repetitive representations make no difference at all. The subsequent retractions made on 30.6.2000, 3.7.2000, 10.7.2000 and 13.7.2000 being repetition simpliciter are of no consequence. In other words, the earliest re- Petition allowed.