HCP/1123/2002 of A.SYED IBRAHIM Vs 1.THE STATE OF TAMIL NADU on 12 December 2002

:O R D E R

(The order of the Court was made by

V.S.SIRPURKAR, J.)

The challenge is to the order passed against the petitioner, one A.Syed Ibrahim, dated 4.4.2002, by the State Government directing the preventivedetention of the petitioner under Section 3(1)(i) of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, 1974.

2. A short background would be not out of place. The detenu landed at Anna International Airport, Chennai, on 28.2.2002. He was carrying twochecked in baggages and one hand bag. He was carrying a declaration chitwhich suggested that he was declaring that the goods worth a lakh of rupees.He was allegedly intercepted and on examination of the baggage, it was foundthat he was carrying the goods worth 19 lakhs of rupees approximately. Hisstatement was recorded where he claimed that one unknown person has given thegoods and he was a receiver of Rs.5,000/- for taking the goods to India. Hehas also agreed that he was caught twice and the goods were ordered to bereleased on payment of redemption fine and penalty also. The detenu was thenlodged in the jail and the further investigation began. However, on the basisof these materials collected, the detention order came to be passed on4.4.2002, as has been stated earlier.

3. It is the case of the petitioner that while in incarceration, he sent a retraction letter dated 27.3.2002, which was given to the jailauthorities for transmitting to the proper authorities on 28.3.2002. In thisretraction letter, the earlier statement dated 28.2.2002 was completelyretracted by the detenu giving his side of the story, perhaps claiming that hehad not given a final declaration and even before the final declaration wasgiven, he was nabbed by the authorities and had he been given a properopportunity to give a declaration, he would have given the proper declarationcovering the goods he was carrying.

4. Mr.K.A. Jabbar, learned counsel for the petitioner, presses the petition only on one point. He points out that retraction letter wasadmittedly a very relevant document and would have affected the psyche of thedetaining authority, had that letter had been put before the detainingauthority. The learned counsel claims that this letter, for no fault of thepetitioner, was not kept before the detaining authority and as such, thedetaining authority came to the conclusion of ordering detention, even withoutconsulting the said retraction letter.

5. The learned counsel buttresses his point further by suggesting that admittedly this letter did not go before the detaining authority andlater only it was put before the Advisory Board, as also before the StateGovernment, at the time of confirmation of that detention order. The learnedcounsel suggests that the letter directed to be put before the Advisory Boardas also before the State Government at the stage of Section 8(f) of the Actwas a very material document and was bound to be considered before thedecision was taken. That not having been done, the learned counsel suggeststhat the order is vitiated.

6. We were taken through the State counter. This question was raised

by the petitioner in paragraph 5(iv) of the affidavit, by way of counter. TheState Government admits in the following terms.

"I submit that the said retraction letter sent through the jail authoritieswas received by the Customs Department on 28.3.2002, but was inadvertentlysent to Adjudication Section along with other letters meant for Adjudicationsection received from the jail authorities. The existence of such a lettercame to light only on the receipt of the representation dated 24.4.2002 of thedetenu and efforts were taken to trace out the same and subsequently, it waslocated and received by the COFEPOSA Unit on 29.4.2002 and the same was sentto the State Government well before the State Advisory Board meeting held on3.6.20 02. The above document received from the Sponsoring Authority havebeen placed before the State Advisory Board and considered by the detainingauthority while confirming the detention of the detenu. In this connection,it is submitted that that retraction letter dated 27.3.2 002 was not receivedby the detaining authority before passing the detention order."

7. We have deliberately quoted the State affidavit, because itunequivocally admitted therein that firstly the letter was actually sent bythe detenu and was received by the jail authorities as early as 28.3.2002.Not only this, but the retraction letter was also received by the CustomsDepartment on 28.3.2002 itself, which was about seven days prior to thepassing of the detention order. The State Government have tried to suggestthat there was a honest mistake on the part of some of the employees in notsending the letter to the detaining authority, whereby it is almost admittedthat this letter was bound to be considered by the detaining authority. Theremay be a mistake or may not be a mistake and the mistake may not be adeliberate one, but could be an innocuous mistake also. However, the fact ofthe matter is that a very important letter, which would have affected thepsyche of the detaining authority, was not considered by the detainingauthority and the detaining authority did not have before it the side of the detenu, in which the detenu had pleaded that he was in fact not guilty ofsmuggling. If this is so, there would be no question of going further and theorder would stand vitiated on this ground alone.

8. We have seen the letter which has been produced before us by the learned counsel and there is no dispute that it is this letter which was sentby the detenu to the Commissioner, Customs Department. Once that fact isestablished that the letter was sent to the Commissioner, Customs Department,it had to be sent to the detaining authority, as it cannot be imagined thatthe Sponsoring authority like the Commissioner would keep back the letter. Weonly say that even if it was an error, it was an fatal error which hasresulted in vitiating the order. The writ petition therefore has to beallowed and the detention order is quashed.

Rule is made absolute. The detenu be released forthwith, unless he isrequired in connection with any other case. HCMP No.166 of 2002 is closed.

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