Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 538 (MAD)

Fathima Rihana v. State of Tamil Nadu & Another

2005-03-28

P.SATHASIVAM, S.K.KRISHNAN

body2005
Judgment :- P. Sathasivam, J. Fathima Rihana, wife of Mujebu Rahuman, a detenu, who was detained and kept in custody in Central Prison, Chennai under Section 3(1)(i) of Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 challenges the same in this petition. The Government of Tamil Nadu with a view to prevent the detenu, who is a resident of Chrompet, Chennai-44, from smuggling goods in future exercising powers conferred under COFEPOSA Act, clamped the impugned detention order detaining him in prison. 2. Heard Mr. B. Kumar, learned senior counsel for the petitioner and Mr. A. Kandasamy, learned Additional Public Prosecutor for first respondent and Mrs. Vanathi Srinivasan for 2nd respondent. 3. Though several grounds have been raised questioning the impugned order of detention, Mr. B. Kumar, learned senior counsel for the petitioner, confined his argument, namely, that in the show cause notice dated 13-12-2004 issued by Directorate of Revenue Intelligence (D.R.I.), Chennai, there is no averment that Mother Board and Populated PCB were kept concealed in the advanced Hybrid system, the department has no case that the above two Mother Board and Populated PCB were kept concealed in the advanced Hybrid system. Thus, according to the learned senior counsel, there was no concealment but they form part of the Hybrid system. The serious averments in the grounds of detention was false even according to the show cause notice issued by the D.R.I. He also contended that even though the petitioner had seriously highlighted that the Populated PCB and Mother Board are not separate items to be valued and there is no question of concealment as they are forming part of the instrument of Advanced Hybrid System, since right comments have not been offered by the sponsoring authority both to the State and the Central Government, they rejected the representation of the detenu on being told of incorrect misleading facts, hence the consideration of the representation has become seriously vitiated which violated Article 22 (5) of the Constitution of India. He also pointed out that though in the copy of Mahazar supplied to the detenu it is mentioned that Panasonic Advanced Hybrid System Model No. KX-TA 308 (4 Numbers) in the grounds of detention (III), the detaining authority has mentioned the same as KX-TA 304 (4 Numbers). This shows the detaining authority has not applied his mind while passing the order of detention. 4. This shows the detaining authority has not applied his mind while passing the order of detention. 4. With reference to the above contention, Mr.A.Kandasamy, learned Additional Public Prosecutor, submitted that the show cause notice referred to by the learned senior counsel for the petitioner refers to departmental proceedings for which different procedures are being followed and with reference to different description of Panasonic Advanced Hybrid system model in the Mahazar and the grounds of detention, it is only a typing error and the same would not affect the case of the petitioner. 5. We have perused the grounds of detention, connected materials and the rival contentions. 6. We shall consider whether there was any concealment as put-forth in the grounds of detention. In the grounds of detention it is stated that one of the items brought by the detenu is 4 numbers of advanced Hybrid system and when the said instrument was closely examined, the officers suspected some concealment inside the said Advance Hybrid system. It is further seen that the outer panel of the system was opened and on opening the outer panel, the officers could detect concealment of one mother board Model No. KX/PA/30874 X and one Populated PCB with card Model KX-TA-30891X. According to the Department, these were kept concealed under the above said system and these two Mother Board and Populated P.C.B. have also been separately valued apart from Hybrid system. It is the definite case of the detenu that there was no concealment and the Advance Hybrid system comes with the above two items which are part to be used in the system. In this regard, learned senior counsel for the petitioner brought to our notice a show cause notice in F.No. VIII/48/46/2004-DRI dated 13-12-2004 issued by the D.R.I., Chennai. As rightly pointed out, in the said show cause notice, it is significant that there is no averment that the Mother Board and Populateds PCB were kept concealed in the advanced Hybrid system. There is no explanation for not mentioning the same in the show cause notice dated 13-12-2004. Though it is stated that different procedure being followed in the department proceedings, as rightly argued by the learned counsel for the petitioner, inasmuch as the same is the basis for detaining the detenu under COFEPOSA Act, it is but proper that the concealment must be evident and explained. Though it is stated that different procedure being followed in the department proceedings, as rightly argued by the learned counsel for the petitioner, inasmuch as the same is the basis for detaining the detenu under COFEPOSA Act, it is but proper that the concealment must be evident and explained. As said earlier, it is the consistent stand of the detenu that there was no concealment but they form part of the Hybrid system. In the absence of specific reference in the said show cause notice, we accept the claim of the petitioner that there was no concealment, but they form part of the Hybrid system. In this regard, learned senior counsel for the petitioner has very much relied on a judgment of the Supreme Court in Madhu Barg v. Union of India, reported in 2004 Supreme Court Cases (Cri) 1999. The appellant before the Supreme Court is the wife of the detenu who was detained by an order dated 20-10-2003 by Joint Secretary to Government of India, Ministry of Revenue, New Delhi purported to be under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The counsel appearing for the appellant before the Supreme Court raised a similar contention as raised before us, namely, that from the averments made in the show cause notice dated 20-8-2004 issued by the authorities upon the detenu it would be evident that the goods of the exporter were made up of alloy-steel and in that view of the matter the order oof detention cannot be sustained only on the basis of his purported self- inculpatory statement recorded by the official of the Directorate of Revenue Intelligence under Section 108 of the Customs Act. It is further submitted before the Supreme Court that keeping in view of the fact that inculpatory statement has been retracted, the same could not have been the basis for issuing the order of detention. While considering the said contention, the Supreme Court has observed that: (para 15) "15. It is further submitted before the Supreme Court that keeping in view of the fact that inculpatory statement has been retracted, the same could not have been the basis for issuing the order of detention. While considering the said contention, the Supreme Court has observed that: (para 15) "15. It is not in dispute that one of the allegations made against the detenu in the grounds of detention was that he had exported consignment upon mis-declaration to the effect that alloy steel forging (machined) was being exported whereas actually the same was metal scrap." After noting the contents of show cause notice dated 20-8-2004, issued by the Directorate, Revenue Intelligence, New Delhi, particularly para 48, Their Lordships have concluded that: (para 18 and 19) "18. A bare perusal of the aforementioned averments in the said notice do not leave any manner of doubt whatsoever that upon chemical analysis of materials, it was found that the samples were made up of allot steel. It has not been disputed before us that the alleged goods which are the subject-matter of the export were seized in the presence of the detenu and were sent for chemical analysis before CRClL. Upon obtaining a report dated 23-10-2003, it appears, that the samples were made up of allot steel although the test report could not throw any light as to whether the goods were alloy steel forging (machined), as declared by the exporter. The subject-matter of the consignment, therefore, was not scrap metal. Had the detaining authority waited for the results of the said chemical analysis before issuing the impugned order of detention, the first ground stated therein could not have been made a basis therefor. 19. The order of detention, therefore, in our considered opinion, was passed in haste without there being adequate materials." Similar objection as has been projected before us was raised by the learned counsel for the respondent, namely, that the allegation against the detenu as regards over invoicing of the goods is the subject matter of the adjudication proceedings. 19. The order of detention, therefore, in our considered opinion, was passed in haste without there being adequate materials." Similar objection as has been projected before us was raised by the learned counsel for the respondent, namely, that the allegation against the detenu as regards over invoicing of the goods is the subject matter of the adjudication proceedings. Rejecting the said contention, the Court held that "that may be so but it is now well settled that when one of the grounds of detention is found to be based on irrelevant materials not germane for passing the order of detention, the entire order of detention shall stand vitiated in law." The above decision is directly applicable to the case on hand. As observed earlier, in the show cause notice dated 13-12-2004, there is no averment that the Mother Board and Populated PCB were kept concealed in the advanced Hybrid system learned senior counsel for the petitioner is right in contending that the department has no case that the above two Mother Board and Populated PCB were kept concealed in the advanced Hybrid system. As rightly pointed out, this serious averment in the ground of detention was demonstrably to be false even according to the show cause notice issued by the D.R.I. 7. For the afore-mentioned reasons, we are of the opinion that the impugned order of detention cannot be sustained which is set aside accordingly. H.C.P. is allowed. The order of detention is set aside. The detenu-Mujebu Rahuman is set at liberty from the custody forth-with unless his detention is required for any other cause. Consequently H.C.M.P.No.26/2005 is closed.