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2003 DIGILAW 772 (MAD)

Badhiri Nisha v. State of Tamil Nadu & Another

2003-04-30

P.SHANMUGAM, S.K.KRISHNAN

body2003
Judgment :- P. SHANMUGAM, J. The above Habeas Corpus Petition is filed against the order of detention dated 24.10.2002 passed by the first respondent under Section 3(1)(i) of the Conservation Of Foreign Exchange And Prevention Of Smuggling Activities Act, 1974 (Central Act 52 of 1974). 2. The brief facts of the case are as follows :- The detenu was scheduled to leave for Singapore by Indian Airlines Flight IC-555 on 6.9.2002. He had checked in his baggage which was cleared through the immigration, customs and security check. On an alert by the Airlines Security personnel at the Security Scan that the detenu might be carrying contraband goods in his checked in baggage, the baggage was recalled and the detenu was examined and questioned. The detenu admitted that he had one hand baggage namely one Modern black colour zipper bag and one checked in baggage namely one brown colour card board carton, for which he had produced the baggage claim tag. Thereafter, in the presence of witnesses, he identified the baggage and then, for the purpose of checking the baggage, the card board carton was opened and on examination, it was found to contain 19 packets of 500 gms. of Coffee Powder and Bengal Grams. However, on a detailed examination of the card board carton, it was noticed that the four side walls of the box were slightly bulging on either side and on carefully cutting open the box, it was found to contain foreign currencies equivalent to Indian Rupees 25,49,605/-, stacked between the four side walls, which included 1000 US Dollars, 70 Singapore Dollars, 1000 Thai Bahts, besides a Nokia Mobile Phone being recovered from the person of the detenu. Inasmuch as the detenu had failed to make a true declaration of these items and had attempted to smuggle the said foreign currency out of India, the said items were seized under the Customs Act, 1962 read with Foreign Exchange Management Act, 1999 under a mahazar dated 6.9.2002. The detenu gave a voluntary statement dated 6.9.2002, admitting his guilt and has stated that in order to sustain his family, he used to buy goods from Bangkok and sell them at Chennai and that his friend had offered him Rs.3,000/- for taking the seized goods from Chennai and handing them over to a certain person at Singapore. The detenu gave a voluntary statement dated 6.9.2002, admitting his guilt and has stated that in order to sustain his family, he used to buy goods from Bangkok and sell them at Chennai and that his friend had offered him Rs.3,000/- for taking the seized goods from Chennai and handing them over to a certain person at Singapore. He had also stated that he was aware that foreign currency notes were kept in the card board carton and that he had committed the offence for a monetary consideration. The detenu was arrested on 6.9.2002 and was produced before the A.C.M.M., E.O.II, Egmore, Chennai and was remanded to judicial custody till 20.9.2002. The materials leading to the arrest and the subsequent particulars were placed before the Government and the Government, after taking all these materials into consideration, was satisfied that there was a compelling necessity to detain the detenu with a view to prevent him from indulging in smuggling goods in future and accordingly passed the impugned order of detention. The said order is now under challenge. 3. Learned senior counsel Mr. B. Kumar, arguing on behalf of the petitioner, submitted that the detaining authority erred in construing the statement of the detenu dated 6.9.2002 as if he had admitted the offence and if the whole statement is taken into account, no such inference could be drawn. According to him, the detaining authority had proceeded on the assumption that under the provisions of the Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA) read with Section 113(d) of the Customs Act, 1962, an offence has been made out. He also submitted that there is no notification from the Central Government prohibiting the export of foreign currencies. According to the learned senior counsel, the detention order shows non-application of mind since the Tamil version of the grounds of detention reads as though the detenu is involved in importing the goods. He submitted that the retraction of his statement by the detenu was not considered in the detention order. He further submitted that the alleged export of foreign currency is a simple offence and there is no violation, for which detention could be invited. He submitted that the retraction of his statement by the detenu was not considered in the detention order. He further submitted that the alleged export of foreign currency is a simple offence and there is no violation, for which detention could be invited. Lastly, he submitted that the awareness on the part of the detaining authority as to the likelihood of the detenu being released on bail was not correctly translated and as per the Tamil version, it could only mean that there was a possibility of the detenu getting bail, in which case, there is no need to pass an order of detention. For these reasons, he prays for setting aside the order of detention. 4. Learned Additional Public Prosecutor, while opposing the arguments advanced on behalf of the petitioner, submitted that though the Foreign Exchange Regulation Act (FERA) had been replaced by FEMA, still there is a prohibition against the export of foreign currency without the permission of the Reserve Bank of India. According to him, the statement made by the detenu was voluntary, wherein he has clearly admitted his offence and it is clear that the detenu was aware that the card board box contained foreign currency. He submitted that the detenu had not made any retraction before the Magistrate so as to be taken note of by the detaining authority. He submitted that in the Tamil translation of the grounds of detention, instead of stating bfhz;L bry;y it is mentioned as "bfhz;L tu". According to him, it is a simple typographical mistake and is not significant enough, if read together and hence, there could not be any confusion in the order of detention passed against the detenu. He therefore prays to sustain the order of detention. 5. We have heard the submissions, gone through the records and considered the matter carefully. 6. From the facts, it could be seen that admittedly, the detenu was carrying a handbag with a card board box, which was a checked in baggage. Though the bag apparently contained peanuts and Bengal Grams, the detenu was aware that it also contained foreign currency kept in a concealed manner. He has also admitted that he had agreed to transport this baggage for a consideration of Rs.3,000/-. First of all, a person who travels to Singapore, under normal circumstances, would carry a baggage and the detenu was having only a handbag. He has also admitted that he had agreed to transport this baggage for a consideration of Rs.3,000/-. First of all, a person who travels to Singapore, under normal circumstances, would carry a baggage and the detenu was having only a handbag. His case is that there was only one checked in baggage and that too was given by a third person. He did not reveal as to whom it was going to be handed over at Singapore, but simply said that some person would come and receive it at Singapore. It is very difficult to believe such a statement since the detenu should have known, when the card board box was given to him for being carried on a consideration of Rs.3,000/-, that it must contain some contraband material. Therefore, the statement given by the detenu on 6.9.2002 is natural, in the circumstances of the case. As a matter of fact, to a specific question, he had stated that he was aware of the fact of concealment of the foreign currency. The exact answer of the detenu in his statement is extracted below : The above statement clearly admitted that the detenu was specifically asked whether he was aware of the concealment of the foreign currency and as to whom he was going to hand over this money, for which the detenu has replied that he was aware that the amount was in the box and that a specific person would come and receive the same at Singapore. He further says that taking money out of India by concealment is a crime and that only because of his poverty and with the hope that he would get more money, he had done the mistake. In the earlier statement, he had stated that he used to go abroad, bring foreign materials and sell them for higher price. A reading of this statement clearly shows that the detenu has admitted his knowledge as to the offence committed by him. Therefore, the submission of the learned senior counsel that the statement of the detenu does not make out an offence has no substance. 7. Section 6(3) of FEMA enables the Reserve Bank of India, by regulations, to prohibit or restrict the export, import or holding of currency or currency notes and contravention of the said regulation invites penalties under Section 13 of the Act. 7. Section 6(3) of FEMA enables the Reserve Bank of India, by regulations, to prohibit or restrict the export, import or holding of currency or currency notes and contravention of the said regulation invites penalties under Section 13 of the Act. Section 113(d) of the Customs Act, 1962 prohibits export of any goods. The said provision reads as follows : "113. The following export goods shall be liable to confiscation : (d) Any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force." Section 114 of the Act provides penalty for attempt to export goods improperly. Section 11 empowers the Central Government to prohibit importation or exportation of goods by specified notification. Insofar as the case on hand is concerned, FEMA has clearly regulated, prohibited and restricted the export of or holding of currency or currency notes. It is admitted by the detenu that he had not obtained any permission or order for the holding of or export of currency notes. Therefore, this clearly attracts Section 3 of FEMA. Once this position is admitted, Sections 113(d) and 114 get attracted which deal with an attempt to export or exporting contrary to the prohibition imposed by the law for the time being in force. Both the Acts provide for penalties and therefore, it cannot be stated that it is not an offence to attempt to smuggle foreign currency. It is true that Section 11 also empowers the Central Government to issue notification restricting the import or export of goods. In the absence of any such notification, it cannot be stated that no offence has been made out in this case. A clear case has, in fact, been made out that the detenu knowingly attempted to smuggle the foreign currencies out of India. 8. In the absence of any such notification, it cannot be stated that no offence has been made out in this case. A clear case has, in fact, been made out that the detenu knowingly attempted to smuggle the foreign currencies out of India. 8. In the Tamil version of the grounds of detention, in paragraph 4, it is stated as follows : the English version of the detention order, paragraph 4 reads as under : "In the absence of any such permit and by attempting to smuggle the foreign currency under seizure by way of concealing the same, you hand rendered the foreign currency equivalent to Rs.25,49,603/- liable for confiscation under Sec. 113(d) of the Customs Act, 1962 and had also rendered yourself liable for penal action under Sec. 114 ibid. You had also rendered yourself liable to prosecution in the court of law under Sec. 135 ibid. From the above facts of the case, it is evident that you have knowingly and consciously attempted to smuggle foreign / Indian currencies out of India being fully aware of the consequences thereof." A reading of the said portion makes it very clear that the detenu had attempted to smuggle foreign currencies out of India. In the Tamil translation, in one of the sentences, the words "bfhz;L tu" have been referred, which give the meaning to the effect as though 'to bring inside India'. The actual words must have been "bfhz;L bry;y". Instead of "bry;y", the word "tu" is stated. It is purely a typographical error and does not reflect non-application of mind if the whole meaning of the sentences in the said paragraph is considered. 9. In Ground (v) of the grounds of detention, it is stated that in the remand order, the A.C.M.M., E.O.II, Egmore, Chennai has observed that the officer had slapped the detenu at the airport and that there was no external injury. In Ground (ix), it is stated that the detenu had filed a bail petition dated 25.9.2002 stating that he was innocent and that he had not committed the alleged offences and that the recovery of the foreign currencies was not effected from his baggage. In Ground (ix), it is stated that the detenu had filed a bail petition dated 25.9.2002 stating that he was innocent and that he had not committed the alleged offences and that the recovery of the foreign currencies was not effected from his baggage. In Ground (xiii), it is stated that the Government had taken into consideration the averments/contentions/allegations contained in the bail petition, but from the materials placed on record, the Government was satisfied that the said allegations were baseless, afterthought and devoid of merits and hence, the Government rejected the same. The argument of the learned senior counsel is that the retraction before the Magistrate has not been taken into account. As rightly pointed out, nothing was retracted before the Magistrate except saying that the detenu was slapped at the airport by the officer. Actually, the alleged retraction has come in only in the bail petition. Apart from this, there is no other retraction which had to be taken note of by the Government. The retraction as set out in the bail petition was taken into account by the Government in Ground (xiii) of the detention order. Therefore, the learned senior counsel is not right in saying that the detenu had retracted his confession statement before the Magistrate and that the same was not taken note of by the detaining authority while passing the order of detention. The judgment in K.T.M.S. Mohammed vs. Union of India (1992 Cri. L.J. 2781) holding that the authority intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. In this case, the retracted statement contained in the bail petition was taken into account and the detaining authority has applied its mind and rejected the same. Therefore, on facts, the judgment referred to will not be of any assistance to the petitioner. 10. In this case, the retracted statement contained in the bail petition was taken into account and the detaining authority has applied its mind and rejected the same. Therefore, on facts, the judgment referred to will not be of any assistance to the petitioner. 10. The contention that the offence under Section 6(3) of FEMA is a simple offence warranting payment of fine does not take away the gravity of the violation contemplated under the Customs Act, 1962, wherein Sections 113 and 114 clearly say that the export of goods contrary to any other law for the time being in force is punishable and therefore, the fact that the detenu attempted to smuggle huge amount of foreign currencies to tune of Rs.25.5 lakhs cannot be treated to be a simple offence, considering the fact that the said currency was concealed in a card board box apparently showing that the box contained only peanuts and Bengal Grams. 11. The last submission of the learned senior counsel is that there is no application of mind as to the likelihood of the detenu being released on bail. What is stated in pargraph 5 of the grounds of detention is as follows : "The State Government are also aware of the fact that you are in the Central Prison, Chennai as remand prisoner and there is likelihood of you being released on bail. The State Government are satisfied that there is likelihood of your indulging in the above said prejudicial activities again while on bail and there is compelling necessity to prevent you from indulging in such activities." The Tamil translation of the above paragraph is as follows : The expression, is sought to be translated only as a possibility and not a likelihood and it is emphasized that the correct expression should have been We are unable to agree with the said submission. The word likelihood could also be translated as Further, by the expression the Government is very clear that there is a compelling necessity to detain the detenu in order to prevent him from indulging in prejudicial activities in future. All these expressions, taken together, would mean that the detaining authority was fully aware of the likelihood of the detenu getting bail and hence, there is no substance in the said contention. 12. All these expressions, taken together, would mean that the detaining authority was fully aware of the likelihood of the detenu getting bail and hence, there is no substance in the said contention. 12. In Kamarunissa vs. Union of India [1991 (1) S.C.C. (Cri.) 88], the Supreme Court, after analyzing the previous decisions, has held on this subject as follows : "From the catina of decisions referred to above, it seems clear to us that even in the case of a person in custody, a detention order can validly be passed – (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him : (a) that there is a real possibility of his being released on bail; and (b) that on being so released, he would, in all probability, indulge in prejudicial activity; or (3) if it is felt essential to detain him to prevent him from so doing." In Rivadeneyta Ricardo Augustine vs. the Govt. of N.C.T. Of Delhi & Others (1994 S.C.C. 354), the Supreme Court held that in that case, the detention order fell short of the requirement enunciated in Kamarunissa's case and observed as follows : "It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunissa's case. Even in the return filed in this petition, the authority has not stated in response to ground (b) of the writ petition that there was material before him, upon which he was satisfied that the petitioner was likely to be released and that release was imminent." 13. From the principle laid down by the Supreme Court, it is clear that the word 'imminent' is not absolutely essential. It would be sufficient even to state that the detenu was likely to be released on moving a petition for bail. In Ahmed Nasser vs. State of Tamil Nadu [1999 S.C.C. (Cri.) 1469], the Supreme Court held that the expression 'likely to be released' connotes chances of being bailed out in case there being pending bail application or in case if it is moved in future, is decided. The word 'likely' shows that it can be either way. In Ahmed Nasser vs. State of Tamil Nadu [1999 S.C.C. (Cri.) 1469], the Supreme Court held that the expression 'likely to be released' connotes chances of being bailed out in case there being pending bail application or in case if it is moved in future, is decided. The word 'likely' shows that it can be either way. It was held that the conclusion of the detaining authority on the facts of that case that there was likelihood of the detenu being released on bail cannot be said to be based on no evidence. 14. In Amrit Lal vs. Union of India [2001 S.C.C. (Cri.) 147], it was held that if a person is in custody and there is an imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the order of detention that the detenu is likely to be released on bail. The inference must be drawn from the material available on record and must not be ipse dixit of the officer passing the order of detention. In that case, the reasoning was that there was likelihood of the detenu moving an application for bail, which is different from the likelihood of the detenu being released on bail and therefore, it was held that it was not sufficient compliance with the requirement. Besides, in that case, the detenu was involved in an offence involving narcotic substances and the officer who passed the order of detention did not consider the fact of the likelihood of the detenu being released on bail and hence, the order of detention in that case was quashed. In contrast, our case is one where the adverse cases against the detenu are all relating to house breaking and theft, and the detenu herein had also been convicted in 16 out of the 18 cases registered against him of similar nature and the other two cases of house breaking by day and theft of gold jewellery are pending investigation and trial. The detaining authority, in this case, was aware that though the detenu has not filed any bail application, he is likely to file bail applications and since bail is granted in such cases after lapse of some time, there is possibility of the detenu coming out on bail and indulging in further prejudicial activities in future. 15. The detaining authority, in this case, was aware that though the detenu has not filed any bail application, he is likely to file bail applications and since bail is granted in such cases after lapse of some time, there is possibility of the detenu coming out on bail and indulging in further prejudicial activities in future. 15. Applying the above principles to the case on hand, what the detaining authority has stated in paragraph 5 can be summarized as follows :- i) He was aware that the detenu had not filed any bail application so far. ii) He was aware that there is an imminent possibility of his filing the bail application. iii) He was aware of the imminent possibility of his moving the higher courts for bail. iv) He was also aware that in such cases, bail is granted after lapse of some time and that there is an imminent possibility of the detenu coming out on bail. v) If the detenu is let to remain at large, he is likely to indulge in such further prejudicial activities in future and therefore, there is compelling necessity to pass the order of detention. Thus, the detaining authority, in this case, satisfies all the requirements as set out in the above principles of law laid down by the Supreme Court, for passing the order of detention and hence, we are of the view that there is no illegality in the said order. 16. For all these reasons, we do not find any ground to interfere with the order of detention. The H.C.P. fails and it is accordingly dismissed.