Ali Palakkal v. The State of Tamil Nadu and others
2001-11-06
P.THANGAVEL, S.JAGADEESAN
body2001
DigiLaw.ai
P. Thangavel, J.: The detenu Ali Palakkal has filed this petition to issue a writ of habeas corpus or any other appropriate writ or other order or direction by calling for the records relating to his detention order dated 14.2.2001 passed by the first respondent under Sec. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to quash the same and to set him at liberty. 2. The detenu arrived at Anna International Airport, Chennai from Riyadh on 14.12.2000 by Indian Airline Flight and he was trying to pass through green channel. The officers of the Customs Department intercepted the detenu and questioned as to whether he is in possession of any contraband. The detenu answered in the negative and hence the officers of the Customs Department made a thorough check of his checked-in-baggage bearing tag No. AI 037874. The search made by the said officers disclosed that the detenu had concealed 24 gold bars with foreign markings weighing 10 tolas each in emergency light and 14 gold bars with foreign markings weighing 10 tolas each in five eveready batteries totalling to 38 gold bars weighing 4427 grams of value Rs. 20,09,415. The detenu gave a statement with regard to the smuggling of the contraband and a case has been registered in R.R.No.89 of 2000 and the contraband was confiscated under Sec. 111 (d), (i), (1) and (m) of the Customs Act, 1962. The case is pending before the learned Additional Chief Metropolitan Magistrate, E.O.I. Chennai. The detenu was detained under the COFEPOSA Act on 14.2.2001 by the Detaining Authority on the request made by the sponsoring authority and the detenu is detained in Central Prison, Chennai. The abovesaid detention was questioned by the detenu on the following grounds: (1) The delay in passing the order of detention on 14.2.2001 from the date of arrest on 15.2.2000, has not been properly explained. (2) The bail application filed by the detenu on 18.12.2000 was dismissed on 11.1.2001 and hence the detenu is detained in jail. There is no necessity to pass an order of detention against the detenu while he is in jail. (3) The detenu filed an application for bail subsequent to the dismissal of the bail application on 11.1.2001 and the sponsoring authority filed its counter on 27.1.2001. The detenu was ordered to be released on conditional bail on 12.2.2001.
There is no necessity to pass an order of detention against the detenu while he is in jail. (3) The detenu filed an application for bail subsequent to the dismissal of the bail application on 11.1.2001 and the sponsoring authority filed its counter on 27.1.2001. The detenu was ordered to be released on conditional bail on 12.2.2001. The non placement of vital material of the abovesaid bail petition, counter and bail order will vitiate the detention order. (4) The detenu who was employed at Riyadh on a monthly salary of 400 Riyals, is eligible to bring 10 Kgs. of gold in the capacity as N.R.I. and therefore, the detention of the detenu on the ground of smuggling 4427 grams, is not sustainable. (5) The retraction letter has not been placed before the Detaining Authority and hence the same will vitiate the detention order. (6) The detenu who was served with the order of detention on 17.2.2001, was not served with Malayalam translated copies at pages 19, 20, 25 and 26 of the same even though they were served in English That will show the non-application of mind of the Detaining Authority and accordingly vitiate the detection order. (7) The members of the family of the detenu were not informed about the detention of the detenu in Central Prison at Chennai on 14.2.2001. (8) The document excess baggage tag No. 09845208421064 and the declaration card were relied on by the Detaining Authority while passing the order of detention. But the copies of the same have not been furnished to him. (9) The documents at page No. 67 supplied to the detenu is illegible and therefore, the detention orders vitiated. (10) The wife of the detenu had sent a representation to the first respondent on 7.3.2001 and it is for the authority concerned to satisfy the Court that the same was considered and disposed of without any avoidable delay. (11) A similar representation was sent by the wife of the detenu to the Government of India, the second respondent on 2.3.2001. It is for the second respondent to establish that the said representation was disposed of without any avoidable delay. 3. The respondents 1 and 2 have filed their counter-affidavits and resisted the contentions raised as mentioned above by the detenu.
It is for the second respondent to establish that the said representation was disposed of without any avoidable delay. 3. The respondents 1 and 2 have filed their counter-affidavits and resisted the contentions raised as mentioned above by the detenu. According to the respondents 1 and 2, they have followed the procedures in detaining the detenu and there was no delay or lapse on the part of the respondents in detaining the detenu or in disposing the representations made by the wife of the detenu. Therefore the respondents 1 and 2 have sought for dismissal of the habeas corpus petition filed by the detenu. 4. We have heard the arguments advanced on both sides and perused the records as well as the files produced by the respondents 1 and 2 before this Court. 5. The fact remains that the detenu had arrived at Anna International Airport at Chennai, from Riyadh in Indian Airlines Flight on 14.12.2000 and he tried to pass through green channel. The detenu was intercepted by the officers of Customs Department and questioned as to whether he is in possession of any contraband. Since the detenu answered in the negative, the Customs Officers made thorough check of his checked-in-baggage bearing tag No. AI037874 and excess baggage annexed to the passenger ticket. The customs officials admittedly found 24 gold bars with foreign markings weighing 10 tolas each in emergency light and 14 gold bars with foreign markings weighing 10 tolas each in five Ever Ready batteries totalling to 38 gold bars weighing 4427 grams of value of Rs. 20,09,415. The fact of bringing the abovesaid contraband by the detenu on 14.12.2000 from Riyadh to Anna International Airport at Chennai in India has not been disputed as seen from the file produced before this Court. It is to effectively preventing the detenu from indulging in such smuggling activities in future the order of detention under the COFEPOSA Act was passed on 14.2.2001. It is evident from a perusal of the record that the proposal for detention was received from the sponsoring Authority on 9.1.2001 and further documents were received on 24.1.2001 and 25.1.2001. Further documents were called for from the sponsoring authority on 29.1.2001 and the same was received on 30.1.2001. Still further documents were called for on 30.1.2001 and they were received only on 8.2.2001.
Further documents were called for from the sponsoring authority on 29.1.2001 and the same was received on 30.1.2001. Still further documents were called for on 30.1.2001 and they were received only on 8.2.2001. On request to furnish further documents, the sponsoring authority has furnished further documents on 12.2.2001 and the same were received on 13.2.2001 and after perusing of the said documents, the Detaining Authority arrived at subjective satisfaction on 14.2.2001 and order of detention was passed. It is evident from the abovesaid fact that there were correspondence between the Detaining Authority and the sponsoring authority with regard to production of certain documents to arrive at subjective satisfaction and thereafter passed the order of detention on 14.2.2001. Hence the contention raised by the learned counsel for the detenu that the delay in passing the order of detention on 14.2.2001 from the date of arrest on 15.12.2000 has not been properly explained cannot be accepted. 6. The second contention of the learned counsel for the detenu is that there is no need for issuing an order of detention while the bail application filed by the detenu on 18.12.2000 was dismissed on 11.1.2001 and while the detenu is in Central Prison, Chennai. But the learned Additional Public Prosecutor contends contra stating that even though the bail application filed by the detenu on 18.12.2000 was dismissed on 11.1.2001, there is every likelihood of releasing the detenu on bail on completion of statutory period of 60 days of judicial remand and on release on bail the detenu would indulge in prejudicial activities of doing smuggling of gold into India. A perusal of the detention order would also show that the Detaining Authority had not only taken note of the dismissal of the bail application on 11.1.2001 filed by the detenu in ground No.1 (viii) of the detention order, but also had taken note of the extension of remand for the period upto 12.1.2001, 25.1.2001, 8.2.2001 and 22.2.2001. The fact remains that the statutory period of remanding the detenu for 60 days was running to close and there was a likelihood of releasing the detenu on bail on completion of such period. The said fact of likehood of releasing the detenu on bail had been considered by the Detaining Authority in para No.5 of the grounds of detention and had arrived at the subjective satisfaction. 7.
The said fact of likehood of releasing the detenu on bail had been considered by the Detaining Authority in para No.5 of the grounds of detention and had arrived at the subjective satisfaction. 7. In Abdul Sathar Ibrahim Manik v. Union of India, (1991) Crl.L.J. 3291: A.I.R. 1991 S.C. 2261, the Honourable Apex Court was pleased to hold as follows: “As already noted, in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the Detaining Authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention in spite of his being in custody. These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary”. In this case, the Detaining Authority has specifically dealt with in para No.1 (viii) of the grounds of detention about the dismissal of the earlier bail application on 18.1.2001 and about the extension of the remand period upto 22.2.2001 in ground 1 (ix) of the detention order. In ground No. 5 of the detention order, the Detaining Authority had made mention about the likelihood of the remand prisoner, viz., the detenu, being released on bail and also about the likelihood of the detenu indulging in prejudicial activities again on coming out of bail and also about the compelling necessity to prevent the detenu from indulging in such activities. If the principles laid down by the Honourable Apex Court as mentioned above is taken into consideration in the light of the facts and circumstances mentioned in the grounds of detention order, the contention raised by the learned counsel for the detenu that there is no necessity to pass order of detention while the detenu was already in remand, will not help him in any respect to hold that the order of detention is vitiated on such ground. 8. Yet another contention raised by the learned counsel for the detenu is that there is no need for detaining the detenu since the passport of the detenu has already been seized by the authority concerned.
8. Yet another contention raised by the learned counsel for the detenu is that there is no need for detaining the detenu since the passport of the detenu has already been seized by the authority concerned. But the learned Additional Public Prosecutor contends that even if the passport is seized from the detenu, there is every possibility of going out of country with false passport to continue the activities of smuggling by the detenu and therefore the contention raised by the learned counsel for the detenu cannot be taken into consideration to hold that the issue of order of detention has been vitiated. 9. In M. Ahamed Kutty v. Union of India. (1990)47 E.L.T. 188 (S.C.). the Honourable Apex Court was pleased to hold as follows: “The next submission of counsel was that the Detaining Authority should have realised that the seizure of the detenu’s passports was by itself sufficient to restrain the detenu’s smuggling activities, if any, and refrained from passing the order of detention. We see no force in this contention. This was no doubt one of the factors that the Detaining Authority should have taken (and did in fact take) into account but it was for him to assess the weight to be attached to such a circumstance in arriving at his final decision and it is not open to us to interfere with the merits of his decision. We, therefore, reject this contention.” In this case, the Detaining Authority had considered with regard to the prejudicial activities of smuggling that can be carried out by the detenu in the event of release on bail in future as already mentioned above. In view of the said circumstances, it is for the Detaining Authority to take a decision either to pass the order of detention or not after taking into consideration the seizure of the passports of the detenu. In this case, the Detaining Authority has taken a decision to pass a detention order against the detenu taking into consideration all facts and circumstances and therefore, this Court cannot interfere with the merits of the decision of the Detaining Authority. Accordingly we hold the order of detention passed by the Detaining Authority will not stand vitiated on this ground also. 10.
Accordingly we hold the order of detention passed by the Detaining Authority will not stand vitiated on this ground also. 10. The learned counsel for the detenu contends that the second bail application was filed by the detenu for which the sponsoring authority has filed its counter on 27.1.2001 and an order of bail was granted on 12.2.2001. Though the copies of the bail petition and counter were placed before the Detaining Authority by the sponsoring authority, the said authority had failed to produce the order of bail granted on 12.2.2001 before the Detaining Authority for passing the order of detention. Therefore, the learned counsel for the detenu contends that the non-production of the order of bail granted on 12.2.2001 will vitiate the proceeding. The learned Additional Public Prosecutor contends that a conditional order in the second bail application filed by the detenu was passed only on 12.2.2001 that the file before the Detaining Authority was placed even on 12.2.2001, that the copy of the bail order could be received only on 15.2.2001 from the Court, while the order of detention was passed even on 14.2.2001 and that therefore the copy of the bail order dated 12.2.2001 could not be produced before the Detaining Authority even though the petition for bail and the counter filed by the sponsoring authority have been produced by the said authority for consideration. The abovesaid submission made by the learned Additional Public Prosecutor on factual ground has not been denied by the learned counsel appearing for the detenu. If the dates narrated above are taken into consideration, it is quite clear that the sponsoring authority could not produce the bail order passed on 12.2.2001 before the Detaining Authority before whom the proceeding for detention was already on 14.2.2001. It cannot be said that the sponsoring authority would have retained any material including the bail order without being produced before the Detaining Authority on the date of passing of detention order, viz., 14.2.2001. 11.
It cannot be said that the sponsoring authority would have retained any material including the bail order without being produced before the Detaining Authority on the date of passing of detention order, viz., 14.2.2001. 11. In Abdul Sathar Ibrahim Manik v. Union of India, 1991 Crl.L.J. 3291: A.I.R. 1991 S.C. 2261, the Honourable Apex Court was pleased to hold as follows: “Even if the bail application and the order refusing bail are not placed before the Detaining Authority or even if placed, if the Detaining Authority does not refer to rely upon or has failed to take them into consideration, that by itself does not lead to the inference that there was suppression of relevantmaterial or in the alternative that there was non-application a mind or that subjective satisfaction was impaired. When these documents are neither referred to nor relied upon, there is no need to supply the same to the detenu.” While holding so the Honourable Apex Court has allowed the decision of the Apex Court reported in Abdul Sathar Abdul Kadar Shaikh v. Union of India, 1990 S.C.C. (Crl.)242: (1990)1 S.C.C. 480 , wherein it was held as follows: “In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon. These documents were not relied upon by the Detaining Authority. When a request is made by the detenu for supply of these bail applications and orders refusing thereon are made, the Court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal. No authority has been placed before us which goes to the extent of holding that a mere non-supply of any document whatever its nature may be, to the detenu per se amounts to the denial of an opportunity under Art.22(5)”. The Honourable Judges of the Apex Court has also placed reliance on the decision reported in Syed Farooq Muhammad v. Union of India, J. T. (1990) 3 S.C. 102: 1990 Crl.
The Honourable Judges of the Apex Court has also placed reliance on the decision reported in Syed Farooq Muhammad v. Union of India, J. T. (1990) 3 S.C. 102: 1990 Crl. L.J. 1622, wherein the Honourable Apex Court was pleased to hold as follows: “The third ground of challenge is that the relevant document i.e., bail application of the petitioner and order made thereon which might have been considered by the Detaining Authority were not supplied to the petitioner and as such his right of making effective representation guaranteed under Art.22(5) of the Constitution of India has been seriously prejudiced. This ground is without any substance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was considered by the Detaining Authority before passing the impugned order of detention and as such this being not referred to in the grounds of detention, the documents had not been supplied to the petitioner, and it, therefore, cannot be urged that non-supply of this document prejudiced the petitioner in making effective representation against the order of detention. Art.22(5) of the Constitution, undoubtedly, mandates that all the relevant documents referred to in the grounds of detention and which are considered by the Detaining Authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu. The said document was not considered by the Detaining Authority in coming to his subjective satisfaction and in making the impugned order of detention. The non-furnishing to the detenu of the said document i.e., the bail application and the order passed thereon, does not affect in any manner whatsoever the detenu’s right to make an effective representation in compliance with the provisions of Art.22(5) of the Constitution of India. This ground, therefore, is wholly untenable.” It is evident from the tenor of the decisions referred to above that if a bail application and orders passed thereon are not considered by the Detaining Authority at the time of passing the detention order, there is no need to give copy of such petition and orders thereon even if there is any request from the detenu.
Nothing was placed before this Court to establish as to how neither the production and consideration of the bail application and orders passed thereon nor the failure on the part of the authority concerned to supply of the said bail petition and order thereon, which were not considered by the Detaining Authority will in any way amount to denial of opportunity to make effective representation under Art.22(5) of the Constitution of India. 12. As already pointed out, the sponsoring authority could not produce the copy of the bail petition and orders passed thereon on 12.2.2001 before the Detaining Authority since the file relating to passing of detention order has already been placed before the Detaining Authority on 12.2.2001 and the copy of the bail order could be obtained by the sponsoring authority only on 15.2.2001. 13. The learned counsel for the detenu has brought to the notice of this Court the decision reported in Ahamed Nazzar v. The State of Tamil Nadu and others, J.T. (1999) 8 S.C. 252, wherein two letters dated 19.4.1999 and 23.4.1999 which reached the sponsoring authority and the Secretary to Government respectively well before passing of the order of detention on 26.4.1999 and formal order of detention on 28.4.1999 were not placed before Detaining Authority while the said letters are containing the defence of the detenu. In the said circumstances of the case, it was held by the Apex Court that the Secretary to Government referred to above was obliged to place the letters before the Detaining Authority and he was not right in not placing the abovesaid letters as it contains not only the averments made in the bail application, but also contains something more. Therefore, it was held that the decision taken by the Detaining Authority, when the letters of the detenu containing his defence were not placed, will amount to non-application of mind. The circumstances stated in the case cited above will have no application to the facts and circumstances of this case, since no letter containing the defence of the detenu has been omitted to be placed before the Detaining Authority in the matter on hand. 14.
The circumstances stated in the case cited above will have no application to the facts and circumstances of this case, since no letter containing the defence of the detenu has been omitted to be placed before the Detaining Authority in the matter on hand. 14. Following the decision reported in Abdul Sathar Ibrahim Manik v. Union of India, 1991 Crl.L.J. 3291.A.I.R. 1991 S.C. 2261, this Bench consisting of both of us has already held in H.C.P.No. 392 of 2001, dated 19.10.2001 that the failure to supply bail application and orders thereon, will not in any manner prejudice the detenu and the non-placement of the bail application and orders thereon will not also vitiate the impugned order of detention. 15. In view of the decisions referred to above, the contention raised by the learned counsel for the detenu with regard to non-placement of the bail petition and orders thereon to the Detaining Authority and non-supply of the copies of the abovesaid documents will vitiate the order of detention cannot be sustained. 16. While the learned counsel appearing for the detenu contends that he is entitled to bring 10 kgs. of gold from abroad to India and therefore the Customs Authority cannot decide that it is an offence punishable under Secs. 132 and 135 of Customs Act, 1962. The learned Additional Public Prosecutor contends contra stating that the detenu cannot claim such privilege in bringing gold biscuits weighing 4427 grams without valid permit or licence and also without declaration of such possession of gold bars with foreign markings after landing at Anna International Airport at Chennai. The detenu made a statement earlier, though retracted latter, that he had brought 38 gold bars with foreign markings weighing 4427 grams of value of Rs. 20,09,415 from Riyadh for monetary benefit of Rs. 30,000 at the instance of one Mr. Razak unknown to him in Riyadh. The fact of bringing 38 gold bars with foreign markings has also been conceded by the detenu before the Advisory Board. The detenu has brought 24 gold bards referred to above in a ‘FIFU’ Emergency light concealed while the remaining 14 bars were concealed in five eveready batteries brought by the detenu. He was passing through the green channel with his baggage and he was questioned by the Customs officials at that time as to whether he is in possession of any contraband.
He was passing through the green channel with his baggage and he was questioned by the Customs officials at that time as to whether he is in possession of any contraband. The detenu had answered in the negative and therefore the checked-in-baggage was examined by the officers of Customs Department in the presence of two independent witnesses and on such examination of the checked-in-baggage, the concealed 38 gold bars with foreign markings were recovered from the abovesaid emergency light and eveready batteries in the possession of detenu. The detenu has not voluntarily declared the possession of the abovesaid 38 gold bars with foreign markings weighing 4427 grams of value of Rs. 20,09,415 on 14.12.2000, but had attempted to smuggle the abovesaid gold bars. Of course the detenu may be employed in Riyadh and may be earning, but he cannot smuggle gold bars as mentioned above from abroad to India without following the rules and regulations and also without declaring the possession of the same with him. Therefore, as rightly contended by the learned Additional Public Prosecutor, the conduct of the detenu in smuggling the gold bars without declaring the same to the authorities concerned and passing through green channel in Anna International Airport at Chennai without paying customs duty payable for it will not help him to escape from the clutches of law. In view of the said circumstances, the contention raised by the learned counsel for the detenu as mentioned above cannot be sustained. 17. The next contention put forward by the learned counsel for the detenu is that the sponsoring authority had failed to place the retraction of the statement made by the detenu before the Detaining Authority and therefore, the order of detention will stand vitiated. Per contra, the learned Additional Public Prosecutor contends that the retraction of the statement already made by the detenu has been mentioned in the bail application filed by the detenu, that the copy of the bail petition and counter thereon has been placed before the Detaining Authority and that the Detaining Authority has passed order only after taking into consideration of the abovesaid retraction made by the detenu.
Admittedly the detenu has filed application for bail before the competent Court on 31.1.2001 and in that application for bail, the detenu has made mention that he had not given any statement voluntarily and the statement was prepared containing false allegations and that therefore the said statements do not reflect true and complete facts and the facts were twisted by the officers to justify the action of the officers concerned. A counter was filed by the sponsoring authority as respondent in the abovesaid bail application. The copy of the application for bail and counter were admittedly placed before the Detaining Authority. The Detaining Authority considered the stand of the detenu that he had not made the statement before the sponsoring authority voluntarily and that the said statement has been retracted, in ground No.1 (viii) of the grounds of detention. It is after taking into consideration of the retraction of the statement already made by the detenu, the Detaining Authority has decided to detain the detenu after considering all materials available on record. Therefore, it cannot be said that there was non-application of mind with regard to the retraction of the statement made by the detenu to the sponsoring authority, by the Detaining Authority at the time of ordering detention of the detenu. It cannot also be said that the alleged non-production of the retracted statement will vitiate the order of detention as alleged by the learned counsel for the detenu. Hence we find no merits in this contention also. 18. The learned counsel for the detenu contends that the documents at pages 19, 20, 25 and 26 were given to the detenu in English, but not in Malayalam and therefore non-furnishing of translated copies of the abovesaid pages in Malayalam will vitiate the order of detention. The learned Additional Public Prosecutor contends contra by stating that the documents at the pages referred to above relates to the passport of the detenu and they are standard printed public documents and therefore there is no need for giving abovesaid documents in Malayalam. A perusal of the file produced by the first respondent would disclose that the documents at pages 19, 20, 25 and 26 are copies of certain pages of passport of the detenu with details regarding exit and re-entry visa and foreign exchange for travelling expenses.
A perusal of the file produced by the first respondent would disclose that the documents at pages 19, 20, 25 and 26 are copies of certain pages of passport of the detenu with details regarding exit and re-entry visa and foreign exchange for travelling expenses. There is no other particulars in the abovesaid pages with regard to detention of the detenu. The documents at the abovesaid pages will not in any way be helpful to make effective representation by the detenu to the authorities concerned in connection with his detention. Since the abovesaid documents are not relevant for making any representation with regard to detention, the non-furnishing of Malayalam translated copies of the said documents at the pages referred to above will not in any way affect the effective representation of the detenu to the authorities concerned in connection with his detention. Therefore, as rightly contended by the learned Additional Public Prosecutor, the non-furnishing of copies referred to above in Malayalam, but furnishing the said copies only in English, will not in any way vitiate the order of detention passed against the detenu. 19. The learned counsel appearing for the detenu half heartedly contends that the detention of the detenu under COFEPOSA Act, was not informed to his wife and therefore such non-furnishing of information to his wife will vitiate the order of detention. But the learned Additional Public Prosecutor contends contra stating that the fact of detaining the detenu under COFEPOSA has been communicated to the wife of the detenu Tmt.Hasiya through a telegram dated 14.2.2001 and therefore there is no violation of Art.22(5) of the Constitution of India. The learned Additional Public Prosecutor has brought to the notice of this Court by producing the document that the wife of the detenu Tmt.Hasiya, residing at No.RP/VIII/187-A (New No.AP/X) Ambalavayal Grama Panchyayat, Vaduvanchal Post, Wyanad District, Kerala State was served by the police through telegram dated 14.2.2001. It is because of that the detenu was able to make representation to the authorities concerned later. Therefore, the contention that there was no information about the detention of the detenu under the COFEPOSA to the wife of the detenu cannot be sustained. 20.
It is because of that the detenu was able to make representation to the authorities concerned later. Therefore, the contention that there was no information about the detention of the detenu under the COFEPOSA to the wife of the detenu cannot be sustained. 20. The next contention raised by the learned counsel for the detenu is that the copies of excess baggage ticket and declaration card on which the Customs Authority had relied on to arrive at the subjective satisfaction to pass the order of detention, have not been furnished to the detenu and therefore the order of detention cannot be sustained. The Additional Public Prosecutor, per contra, contends that the excess baggage ticket showing the excess charges paid for such excess baggage by the passenger has been annexed to the ticket of the passenger itself and no reliance was placed by the Detaining Authority except to make a reference in the grounds of detention and that therefore non furnishing of the copies of the said excess baggage ticket will not vitiate the order of detention. With regard to the declaration card, which was relied on by the Detaining Authority, the learned Additional Public Prosecutor submits that the copies of the declaration card have been furnished to the detenu in the set of documents at page No.30 and in Malayalam at page No. 31 in the set of documents supplied to the detenu. In ground No. 1(i) of the grounds of detention, the Detaining Authority has mentioned that flight ticket No.4098 44203070426, excess baggage ticket No.098 45208 421064, two numbers boarding pass, customs declaration card, the baggage tag bearing No. A1 037873 and A1 037874 and the corresponding baggage claim tag were seized from the detenu under mahazar by the Customs Department. No other reference has been made in the grounds of detention, more particularly, with regard to excess baggage ticket for which copy was sought for by the detenu. A perusal of the file produced before this Court would disclose that the flight ticket No.4098 4420307042 6 have the details of excess Baggage ticket bearing No. 098 45208 42106 4 in the air ticket itself. As rightly contended by the learned Additional Public Prosecutor air ticket itself is containing the particulars of excess baggage ticket showing the payment of charges for excess baggage by the passenger to the authorities concerned.
As rightly contended by the learned Additional Public Prosecutor air ticket itself is containing the particulars of excess baggage ticket showing the payment of charges for excess baggage by the passenger to the authorities concerned. The said document will show only the excess charges paid for excess baggage and it may not be of any help to decide with regard to the smuggling of gold bar containing foreign markings recovered from the detenu on 14.12.2000. It is because of that the Detaining Authority has not considered the excess baggage ticket for passing detention order except to make a reference for recovery of the said document under mahazar. It may not also be helpful in any way to the detenu to make effective representation in connection with his detention. Therefore, the non-furnishing of copy of the said excess baggage ticket will not in any way vitiate the order of detention. A perusal of the copies of documents furnished to the detenu would disclose that the customs declaration card relied on by the Detaining Authority has been enclosed at page 30 and copy in Malayalam was furnished at page 31 of the said set of documents. Therefore, the detenu cannot contend that he was not furnished the copy of declaration card for making effective representation. In view of the foregoing reasons, the contention raised by the learned counsel for the detenu in this respect cannot also be sustained. 21. A vague contention was raised by the learned counsel for the detenu that the remand application and its order at page No. 67 of typed set of papers furnished to the detenu is not legible and therefore the order of detention has to be set aside. But the learned Additional Public Prosecutor contends that the copy of the remand application and order passed thereon furnished to the detenu is legible and therefore the contention raised by the learned counsel for the detenu cannot be sustained. We perused the document at page No. 67 of the typed set furnished to the detenu and we are satisfied that the copy furnished to the detenu as seen at page No.67 is legible and clear. Therefore, the abovesaid contention raised by the learned counsel for the detenu cannot be sustained. 22. Admittedly, the wife of the detenu Tmt.Hasiya sent a representation dated 7.3.2001 to the first respondent and the same was received on 10.3.2001.
Therefore, the abovesaid contention raised by the learned counsel for the detenu cannot be sustained. 22. Admittedly, the wife of the detenu Tmt.Hasiya sent a representation dated 7.3.2001 to the first respondent and the same was received on 10.3.2001. 10.3.2001 and 11.3.2001 are Saturday and Sunday (holidays). The first respondent called for remarks from the Customs Department on 12.3.2001 and parawarremarks of the said department was received by the first respondent on 16.3.2001. Remarks was called for from the public (S.C.) Department on 16.3.2001 and the file was received from the Public (S.C.) Department on 20.3.2001 since 17.3.2001 and 18.3.2001 were Saturday and Sunday (holidays) while 19.3.2001 was declared as holiday for cricket match. No remarks were offered by Public (S.C.) Department regarding para 13 of the representation and hence further remarks were called for from Public (S.C.) Department on 21.3.2001. The Public (S.C.) Department by reply dated 22.3.2001 informed Public (Law & Order) Department to the effect that the Customs Department which has seized the excess baggage tag No. 098 45208421064 has not sent the same to Public (S.C.) Department and therefore requested to address Customs Department to furnish the copy of excess baggage ticket for supplying the same to the detenu. By letter dated 22.3.2001, the Public (Law and Order) Department addressed the Customs Department for furnishing copy of excess baggage ticket referred to above for being furnished to the detenu. 24.3.2001 and 25.3.2001 are Saturday and Sunday. 26.3.2001 was Telugu New Year Day (holiday). On 28.3.2001 Customs Department has sent a reply, which was received on 29.3.2001, wherein it was stated that the excess baggage ticket is only an annexure to the original Air India ticket of the passenger, that the said excess baggage ticket will show only the payment of excess baggage charges, that the Air India ticket, to which excess baggage ticket is annexed, has been produced before the Detaining Authority as a document for consideration and that the said document along with other documents like boarding card of the passenger can be considered to arrive at subjective satisfaction in passing the detention order.
On receipt of the letter dated 28.3.2001 on 29.3.2001, the Public (Law and Order) Department again sent a letter dated 30.3.2001 to the Customs Department requesting to get the copy of excess baggage ticket which will be available in the computer of the airlines immediately so as to enable the department to furnish copy of the same to the detenu as requested by him. 31.3.2001 and 1.4.2001 are Saturday and Sunday. On 2.4.2001 the department sent copy of the excess baggage ticket to the Public (Law and Order) Department and the same was received on 3.4.2001. A circulation note was prepared and put up on 3.4.2001 and the said note was considered and approved by the Under Secretary to the Government, Public (Law and Order) Department on 4.4.2001. The Deputy Secretary to the Government, Public (Law and Order) Department approved the file after considering the same on 4.4.2001. The said file was sent to the Secretary to the Government, Public Department for consideration on 4.4.2001 and also on the same day sent to the Secretary, Law Department for consideration and approval. After approval, the file was circulated to the concerned Hon’ble Minister for orders on 5.4.2001 and order was passed on 5.4.2001 rejecting the representation. 6.4.2001 was a holiday for Mahavir Jayanthi, 7.4.2001 and 8.4.2001 were Saturday and Sunday (holidays) respectively and hence the reply was communicated to the detenu on 9.4.2001 and received by the detenu under acknowledgment on 10.4.2001. The submission made by the learned Additional Public Prosecutor as referred to above finds support from a perusal of the file submitted to this Court. The learned counsel for the detenu contends that remarks were called for from the Customs Department thrice on 21.3.2001, 22.3.2001 and 30.3.2001 after getting parawarremarks on 16.3.2001 and therefore there was considerable delay in disposal of the representation of the wife of the detenu by the first respondent, which according to the said counsel will vitiate the order of detention.
The learned counsel for the detenu contends that remarks were called for from the Customs Department thrice on 21.3.2001, 22.3.2001 and 30.3.2001 after getting parawarremarks on 16.3.2001 and therefore there was considerable delay in disposal of the representation of the wife of the detenu by the first respondent, which according to the said counsel will vitiate the order of detention. But the learned Additional Public Prosecutor contends that the first respondent had called for particulars with regard to the excess baggage ticket after getting remarks from the Customs Department from Public (S.C.) Department, that the Public (S.C.) Department had informed Public (Law and Order) Department to call for the said particulars from Customs Department since the said particulars were not sent to them, that the Public (Law and Order) Department called for the said particulars from Customs Department, that the Customs Department had sent a reply stating that the excess baggage ticket particulars are available as annexure in the original Air India ticket itself and the same was sent to the first respondent along with the other materials for passing detention order and therefore it was not available with them, that the Public (Law and Order) Department again called for the abovesaid particulars regarding excess baggage ticket the particulars of which will be available in the computer of the air lines and that therefore a reply along with copy of excess baggage ticket was sent to them. Therefore, there was correspondence between the Customs Department and the first respondent by calling for further remarks or particulars on 21.3.2001,22.3.2001 and 30.3.2001 according to the learned Additional Public Prosecutor. The intervening holidays of Saturdays and Sundays in between these dates were also brought to the notice of this Court. 23. In Rajammal v. State of Tamil Nadu and another, A.I.R. 1999 S.C.W. 139, the Honourable Apex Court consisting of three Honourable Judges has held as follows while deciding as to how representation of detenu or relative of detenu has to be considered by the Government: “It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Art.22 of the Constitution for the decision to be taken on the representation the words”as soon as may be“in Clause (5) of Art.22 convey the message that the representation should be considered and disposed of at the earliest.
Though no period is prescribed by Art.22 of the Constitution for the decision to be taken on the representation the words”as soon as may be“in Clause (5) of Art.22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in M.K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India, (1991)1 S.C.C. 476 : A.I.R. 1991 S.C.W. 362. The following observations of the Bench can profitably be extracted here (Para 12 of A.I.R.): "It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words “as soon as may be” occurring in Clause (5) of Art.22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal." Therefore it is evident from the case law cited above that there should not be any callous attitude or slackness or supine indifference in disposing the representation made by the detenu and if there is any such delay, it will affect the detenu adversely. It will otherwise mean that the concerned authority had to explain if there is any delay in disposal of representation. Even longer delay can as well be explained and it is not the duration or range of delay that counts in such disposal of representation.
It will otherwise mean that the concerned authority had to explain if there is any delay in disposal of representation. Even longer delay can as well be explained and it is not the duration or range of delay that counts in such disposal of representation. If the explanation offered by the first respondent in his counter for the time taken to dispose of the representation made by the wife of the detenu in the light of the principles laid down by the Honourable Apex Court following the decision of the Constitutional Bench is considered, we are of the opinion that the time taken for disposal of the representation of the wife of the detenu by the first respondent has been satisfactorily explained. 24. The learned counsel for the detenu brought to the notice of this Court the decision reported in S.M. Jahubar Sathik v. State of Tamil Nadu and others, 1999 Crl.L.J. 2881 (S.C.J, in support of his contention that there was delay in disposal of the representation of the wife of the detenu. In that case the State Government had sought for clarification thrice on issues which did not arise nor were there any necessity for seeking clarification before disposing of the representation. That apart, the explanation offered by the State in the counter-affidavit filed before the High Court was also found to be lethargic in attitude as to how the representation was dealt with. In the said circumstances it was held that the State had not dealt with the representation with promptitude and accordingly held that the detention is vitiated. But in this case, it cannot be said that the clarification sought for by the State from the Customs Department thrice was not necessary or calling for such explanation also does not arise. In the counter-affidavit filed by the first respondent they have stated chronologically the dates on which clarification were sought for and as to how the file was dealt with, with promptitude. The. circumstances under which the decision was rendered in the case cited above, will have no application to the facts and circumstances of this case. Therefore the decision relied on by the learned counsel for the detenu will not come to the rescue of the detenu in any respect.
The. circumstances under which the decision was rendered in the case cited above, will have no application to the facts and circumstances of this case. Therefore the decision relied on by the learned counsel for the detenu will not come to the rescue of the detenu in any respect. Therefore we are of clear opinion that there was no delay in disposal of the representation made by the wife of the detenu to the first respondent, as rightly contended by the learned Additional Public Prosecutor. 25. With regard to the submission of the learned counsel for detenu in connection with the representation made to the President of India by the wife of the detenu, the learned counsel for the second respondent has brought to the notice of this Court the portion of the grounds of the detention wherein it was specified as to whom such representation should be made by the detenu or other person interested in the detenu. In para 7 of the impugned order it is stated as follows: "If you wish to make such a representation you should address it to the Secretary to Government of Tamil Nadu, Public (Law and Order) Department, Secretariat, Chennai-600 009 or the Secretary to Government of India, Ministry of Finance, Department of Revenue (COFEPOSA UNIT), Central Economic Intelligence Bureau B’ Wing, 6th Floor, Janpath Bhavan, Janpath, New Delhi-110 001 as the case may be and forward it though the Superintendent of Prison, Central Prison, Chennai in which you are confined as expeditiously as possible." From the above extracted portion of the impugned detention order it is clear that the detenu had been given option for sending the representation either to the Secretary to the State Government or to the Central Government. In this case the detenu has forwarded the representation to the Secretary to the State Government and it was rejected after considering the same with promptitude. When the option was given to the detenu to address any one of the authorities, the wife of the detenu cannot make any representation to both authorities.
In this case the detenu has forwarded the representation to the Secretary to the State Government and it was rejected after considering the same with promptitude. When the option was given to the detenu to address any one of the authorities, the wife of the detenu cannot make any representation to both authorities. Even assuming, for the purpose of argument that the wife of the detenu is entitled to make such a representation, the question for consideration is as to whether it is proper for the wife of the detenu to send the representation to the President of India who has nothing to do with such a representation and to claim the delay in disposal of such representation. 26. In our view the detenu is not entitled to raise such a plea. We also derive support for our view from the judgment of the Supreme Court reported in R. Keshava v. M.B. Prakash and others, 2001 S.C.C. (Crl.) 289, wherein the Honourable Judges of the Apex Court has held as follows: “We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate Government/authorities against his order of detention as mandated in Art. 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address the representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisor)‘Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal”. From the above principle laid down by the Honourable Apex Court, it is clear that when the detenu is fully aware about the authorities to whom he has to send the representation and when he failed to utilize such opportunity, it is not open to him to plead about the alleged delay. Virtually it will amount to a case of no representation.
Virtually it will amount to a case of no representation. This view has already been taken by us following the decision of the Honourable Apex Court cited above in H.C.P.No. 14 of 2001 dated 19.10.2001 on the file of this Court. 27. In any event the representation sent by the wife of the detenu to the President of India was received by Government of India on 9.3.2001 from the Secretariat of the President of India. Comments were called for from the sponsoring authority by letter dated 1.2.3.2001, since 10.3.2001 and 11.3.2001 were Saturday and Sunday (holidays) respectively. The comments of the sponsoring authority were received on 20.3.2001. The file was submitted to the Deputy Secretary (COFEPOSA) on 22.3.2001 and after his approval it was put up before the Joint Secretary (COFEPOSA) on 27.3.2001 for approval since 24.3.2001 and 25.3.2001 were Saturday and Sunday (holidays) respectively. The Joint Secretary (COFEPOSA) submitted the file to the Secretary, Ministry of Finance, Department of Revenue on 27.3.2001 itself and the abovesaid Secretary rejected the representation on merits on 28.3.2001. The file was received back by the COFEPOSA Unit on 29.3.2001 and the rejection of representation was communicated to the detenu immediately on 29.3.2001. The facts stated by the learned counsel appearing for the second respondent in the light of the counter already filed on behalf of the second respondent which is not under challenge, would lead to hold that the representation was disposed of by the second respondent with all promptitude and there was no delay in disposal of such representation. In view of the foregoing reasons, we find no substance in the contentions raised by the learned counsel for the detenu in this respect also. 28. Accordingly, this habeas corpus petition is devoid of any merit and is dismissed.