Judgment :- (Petition filed under Article 226 of the Constitution of India praying for issuance of writ of habeas corpus, calling for the records of the first respondent made in G.O.No.SR1/666-6/2005 dated 20.07.200 5, quash the same and direct the respondents to produce the body of the detenu Mohammed Arif, son of Mohammed Yakub, now detained in Central Prison, Chennai, under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, before this Court and set him liberty.) J.A.K. Sampath Kumar, J. The petitioner, by name Asial Beevi, challenges the impugned order of detention dated 20.07.2005, detaining her son Mohammed Arif, who was detained and kept in custody in the Central Prison, Chennai, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the Act�). 2. Heard both sides. 3. Heard Mr. B. Kumar, learned Senior Counsel for the petitioner and Mr. Abudukumar Rajarathinam, learned Government Advocate for the first respondent and Mr. P. Kumaresan, learned Additional Central Government Standing Counsel for the second respondent. 4. The learned Senior Counsel appearing for the petitioner contended that when the detenu was a remand prisoner, his mother sent two telegrams on his behalf, one to the Government and the other to the Directorate of Revenue Intelligence (DRI), New Delhi, which is the Head Office of DRI, complaining, that the goods brought by the detenu had been excessively valued, only to have a cause to detain the detenu under this Act and other vital materials and the same were not considered by the Government. Hence, the detention order is liable to be set aside. 5. Against this, the learned Government Advocate contended that no such telegrams were received by the Government at any point of time and even if they received, the same cannot be considered as representation in the light of the decision of the case District Magistrate and Another Vs R. Kumaravel reported in 1994 SCC (Cri) 229 and, as such, the contention of the learned senior counsel for the petitioner cannot sustain. 6. The learned senior counsel appearing for the petitioner also relied on the following decisions; (I) M/s. Sil Import, Usa Vs M/s. Exim Aides Silk Exporters, Bangalore (1999 Crl. L.J. 2276); (Ii) Md. 6. The learned senior counsel appearing for the petitioner also relied on the following decisions; (I) M/s. Sil Import, Usa Vs M/s. Exim Aides Silk Exporters, Bangalore (1999 Crl. L.J. 2276); (Ii) Md. Shakeel Wahid Ahmed Vs State of Maharashtra ( AIR 1983 Sc 541 ); (Iii) Ayya Vs State of U.P. (1989 SCC (Cri) 153) (Iv) Ahamed Nassar Vs State of Tamil Nadu and Others (1999 SCC (Cri) 1469; and (V) P.M.S. Mohiadeen Sahib Vs State Of Tamil Nadu ((2006) 1 M.L.J. (Crl.) 131). in support of his contention. 7. We have carefully considered the rival contentions and perused the relevant materials. 8. The senior counsel for the petitioner relied on two telegrams sent by the wife of the detenu in support of his contention. There is nothing on record to show that the said telegrams were really received by the persons mentioned in the telegrams. Learned counsel relied on the documents only with reference to the proof of sending those telegrams to the addressees. Those documents will not in any way consider as a proof of service on the persons mentioned in the said telegrams; whereas, against this, it is the categoric contention of the learned Government Advocate that no such telegrams were received by the persons concerned referred to in the telegrams and also filed counter, objecting to this contention. 9. In this context, it is relevant to mention the name of the addressees and the contents in the telegrams, for better appreciation of the facts of the case. “(1) Government of Tamil Nadu, Fort Saint George, Chennai-600 009. My husband Mohammed Ariff arrested by Directorate of Revenue Intelligence Officers, T.Nagar, Chennai-17 by fixing high and inflated value for goods brought by him. Goods value very is very low. Release requested Aiysha Beevi. (2) Director, Directorate of Revenue Intelligence, New Delhi. My husband Mohammed Ariff arrested by your Officers at Chennai. Airport Officers have fixed very high value for goods brought by him in order to arrest him. Enquiry and release requested - Aiysha Beevi�. 10. The said telegrams were sent on 05.07.2005. Even before that, i.e. on 03.07.2005, the sponsoring authority has sent a telegram to the petitioner, informing her about the arrest and detention of the detenu under the Customs Act. The said telegram is available at page 65 of the paper book. Enquiry and release requested - Aiysha Beevi�. 10. The said telegrams were sent on 05.07.2005. Even before that, i.e. on 03.07.2005, the sponsoring authority has sent a telegram to the petitioner, informing her about the arrest and detention of the detenu under the Customs Act. The said telegram is available at page 65 of the paper book. In the said telegram, sender's name has been specifically referred and it reads as, “Senior Intelligence Officer, 25, Gopalakrishna Iyer Road, T.Nagar, Chennai�; More so, by whom the detenu was arrested was also referred to and it reads thus: “Shri Mohd.Arif, S/o.Mohd Akup was arrested by the Directorate of Revenue Intelligence, T.Nagar, Chennai-17 on 02.07.2005 under Customs Act 1962 and produced before the Addl.Chief Metropolitan Magistrate, E.O.II, at his residence on 03.07.2005 and remanded to judicial custody at Central Prison, Chennai. This is for your information�. So, from the said telegram, it is clear that the person, by whom the detenu was arrested, has revealed his identity and address. If that be the case, the petitioner ought to have sent a telegram to the proper person with a clear address instead of addressing to “1. Government of Tamil Nadu, Fort St.George, Chennai-600 009 and 2. Director, Directorate of Revenue Intelligence, New Delhi� without mentioning the concerned department. 11. Now, let us look into the principles laid down in the rulings referred by the senior counsel for the petitioner. In the decision 1999 Crl.L.J.2276, it is held that mode of sending notice cannot be restricted to post or messenger and it can even be sent by fax. In the decision cited in 1989 SCC (Cri) 153, it is held that What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of nonapplication of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality. It is held in 1999 SCC (Cri) 1469 that sending representation by speed post is enough to be taken note of by the detenu. 12. The observations of the said decisions referred to above are that the representations of the detenu should be considered with an unbiased mind and closest and most zealous scrutiny; but since the detaining authority failed to consider these relevant aspects, would vitiate the detention order. The right of representation under Article 22 (5) is a valuable Constitutional right and is not a mere formality, the same has to be considered carefully for the purpose of deciding whether the detention is justified or not. It is settled law that consideration of representation must be effective and purposeful. 13. Against these decision, the decision relied on by the learned Government Advocate in District Magistrate and Another Vs R. Kumaravel (1994 SCC (Cri) 229) is relevant to decide the issue on hand. “Any material received by the District Magistrate in the shape of telegrams could not be taken into consideration by him in the absence of any subsequent communication confirming the same. We are, therefore, of the view that the orders of detention could not be challenged on the ground that some material contained in a telegram simpliciter was not taken into consideration by the detaining authority�. The principle laid in the said decision is directly applicable to the facts on hand. In this case, no written representation followed the telegram. So, the telegram, stated to have been sent by the mother of the detenu is not valid in the eye of law as no written representation followed the same. Apart from that there is no proof to show that the said telegram was really received by the concerned authority. Therefore, we are of the considered view that the contention of the learned senior counsel for the petitioner cannot be sustained and the same is rejected. 14. Apart from that there is no proof to show that the said telegram was really received by the concerned authority. Therefore, we are of the considered view that the contention of the learned senior counsel for the petitioner cannot be sustained and the same is rejected. 14. Learned senior counsel for the petitioner next contended that the valuation arrived at by the DRI is not in accordance with the procedure contemplated under Customs Act and the value declared by the detenu as to be taken into consideration and there cannot be any assumption in respect of valuation of goods. It is a serious nonapplication of mind to accept a valuation, without knowing its basis and on this ground, the detention order is liable to be quashed. 15. The learned Government Advocate has rightly contended that the goods brought by the detenu was valued according to Section 79 of the Customs Act and that value cannot be assessed under Chapter VII of the Customs Act as stated by the learned counsel for the petitioner as it relates to clearance of imported goods and export goods. In this context, the learned Government Advocate brought to our notice the decision rendered by this Division Bench in H.C.P.No.1126 of 2005 dated 15.02.2006, in which the same issue has been considered and rejected the contention of the detenu. The finding in the said case reads as follows: “6. As regards the valuation, it is the grievance of the petitioner that the department has not furnished the required details in spite of her representation to furnish the same. In the counter affidavit filed by Additional Secretary to the Government, Public (Law and Order) Department, Secretariat, Chennai-9 in para 7 it was specifically stated that the “valuation of subject goods have been done as per the guidelines and on seeing the physical condition of the goods and thus the valuation is fair and correct and hence no independent enquiry was warranted.....�. Though reference was made from Valuation Rules, 1988, as rightly pointed out by the learned Government Advocate, the same are not applicable to the cases of baggage of passengers, which are governed by Baggage Rules, 1998. 7. Chapter VII of the Customs Act, 1962 deals with clearance of imported goods and export goods. Though reference was made from Valuation Rules, 1988, as rightly pointed out by the learned Government Advocate, the same are not applicable to the cases of baggage of passengers, which are governed by Baggage Rules, 1998. 7. Chapter VII of the Customs Act, 1962 deals with clearance of imported goods and export goods. Section 55 makes it clear that the provisions of this Chapter (Chapter VII) are not applicable to (a) baggage and (b) goods imported or to be exported by post. It is also relevant to note that as per proviso to sub-section (1) of Section 14, the price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill or bill of export presented under section 50. The detenue has not placed any document much less bill of entry. This fact is not disputed. In such a circumstance, by applying the guidelines and on seeing the physical condition of the goods, the department valued the goods which cannot be considered as arbitrary or unfair�. The principles laid down in the said HCP are directly applicable to the facts on hand. 16. Moreover, in this case, at the time of filing bail application on behalf of the detenu, some invoice was produced to show that the value of the articles assessed by the detenu shall not be more than Rs.3 lakhs. It is borne out by the record that no such invoice was shown by the detenu at the time of baggage check; more so, if the detenu was in possession of the said invoice, he would have produced the same before the said Officer and proved that baggage he brought was only for personal use and not for trade. Further there is no reference about the invoice in the seizure mahazar. Even at the time of remand, the detenu has not stated anything about the possession of the said invoice to the remanding Magistrate to show his innocence. In view of the narration of events coupled with the principles laid down in the said ruling as well as in non possession of the invoice at the time of arrest, we are of the considered view that on seeing the physical condition of the goods, the department valued the goods, which cannot be considered as arbitrary or unfair. In view of the narration of events coupled with the principles laid down in the said ruling as well as in non possession of the invoice at the time of arrest, we are of the considered view that on seeing the physical condition of the goods, the department valued the goods, which cannot be considered as arbitrary or unfair. Even otherwise, according to the counter of the first respondent, it is found that the cost of the articles fixed by the concerned authority is far less than the cost price under the invoice relied by the detenu. For Example, unit value of item LC 864508 V chips has been taken as Rs.90/- per piece whereas the value in the invoice No.4341 submitted along with the bail petition in Singapore $4.50 which conversion will amount to Rs.120/- approximately. Similar is the case with other goods also. Despite of that, a faint attempt made by the detenu to deceive two forums, namely, one before the remand Magistrate and the other before us, claiming, the invoice obtained from outside while he was under custody to be genuine to set aside the order of detention which was rightly exposed by the learned Government Advocate, by bringing to our notice, the various materials available in the paper book to reject the invoice. It is worthy to note that the order of detention was not based on the mis-declaration of the baggage by the detenu but on the basis of materials collected in pursuance of the statement made by the detenu leading to his smuggling activities, by the concerned authority. Hence, the contention of the learned counsel for the petitioner cannot stand. 17. The learned senior counsel for the petitioner then contended that the detenu has made a proper declaration of the value of the goods and the same was not considered by the Inspecting Officer, which fact was not taken note of by the detaining authority and hence, the detention order is liable to be set aside. 18. Against this contention, the learned Government Advocate brought to our notice about the seizure mahazar, arrest intimation, declaration form of the detenu, confession statement, etc., and contended that the Inspecting Officer had made a proper investigation of the baggage of the detenu and rightly charged him under the relevant provisions of Customs Act. 19. 18. Against this contention, the learned Government Advocate brought to our notice about the seizure mahazar, arrest intimation, declaration form of the detenu, confession statement, etc., and contended that the Inspecting Officer had made a proper investigation of the baggage of the detenu and rightly charged him under the relevant provisions of Customs Act. 19. Now, let us look into the seizure mahazar, confessional statement of the detenu etc. to find out whether the detention order is in accordance with law. The seizure mahazar, which is available at page 8 of the paper book, reads as follows:- 20. The declaration of the detenu regarding his baggage is available at page 12 of the paper book. He has declared that he has brought about 200 Nos.of walkman and 8 Nos.of camera. It shows that the detenu has not made proper declaration of the baggages brought to India. The statement of the detenu is found at page 38 to 46 and the English translation of his statement is available at page No. 47 to 49. The detenu has stated before the Senior Intelligence Officer, DRI, Chennai on 02.07.2005 that he brought the goods to India only for wrongful gain. He has also stated that during 2002, he had paid Rs.50,000/- as customs duty once and he has carried trade articles without payment of duty on 30 occasions. The relevant portion of the statement reads as follows: “I bring electronic goods for the carriers, I was paid Rs.2500/- to 5 000/-. So far I would have travelled around 30 times to Singapore and brought electronic goods in my name. As far as possible I try bring the electronic goods without Customs declaration and without paying customs duty. During 2002, I had paid Rs.50000/- as customs duty once..... I came to know at the Chennai Airport that your officers have come and in the Customs declaration, I declared the value of the goods carried by me as Rs.3,00,000/- containing 200 walkmans and 8 cameras. I took my 4 baggage and went to Table as per a Customs Officer instructions.... On examination, from the baggage brought by me, 16 Sony car stereo, 164 Sony & Aiwa walkman, 10 video camera, 2 Nokia cell phones, 13950 Radio/TV IC chips were found. I took my 4 baggage and went to Table as per a Customs Officer instructions.... On examination, from the baggage brought by me, 16 Sony car stereo, 164 Sony & Aiwa walkman, 10 video camera, 2 Nokia cell phones, 13950 Radio/TV IC chips were found. The goods were totally valued as Rs.7,36,450/- and as same were brought against the provisions of the Customs Act as baggage, the officers recorded the proceeding under mahazar and the goods, air ticket, baggage tag, etc., were seized....�. 21. The possession of the above mentioned articles would prove that they were not meant for personal consumption but only for otherwise exposing his smuggling activities by evasion of customs duty. The remand order, which is found at page 63 reads as follows: “Accused produced at 12.30 P.M.today at my residence. No complaints of harassment or ill treatment at against the officials. Perused the remand report, seizer Mahazar and statements. Prima facie case exist for remand pending investigation. Hence the accused is remanded to judicial custody till 15.7.2005. Passport No.E 3923258 dated 30.1.2003 retained in the court custody�. 22. Even before the remand Magistrate, the detenu has not stated that the baggage were brought only for personal consumption and not for trade. He has not even mentioned anything about the possession of invoice. So, the narration of events would show that the detaining authority has taken note of all the relevant facts placed before him, satisfied and passed the detention order. Such a detention order cannot be stated to be faulted with. So, we are of the view that the submission of the learned senior counsel cannot sustain. 23. The learned senior counsel for the petitioner finally submitted that arrest of the detenu was intimated belatedly and, as such, the detention order is liable to be set aside. We are unable to accept the contention of the learned senior counsel for the petitioner in view of the fact that immediately after arrest and remand by the Judicial Magistrate, the petitioner (mother of the detenu) was informed by telegram, which is evident at page 65 of the paper book. 24. In the light of what is stated above, we do not find any valid ground for interference. Accordingly, this petition fails and is dismissed.