HCP/735/2002 of IZADEEN Vs STATE OF TAMILNADU on 3 December 2002

:ORDER

(Order of this Court made by V.S.Sirpurkar,J.)

The petitioner has challenged the order passed under the provisions ofSection 3(1)(i) of the Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974, dated 24.1.2002, ordering the detention of thedetenu.

2. The detenu was a passenger travelling from Colombo. After reaching Chennai Airport on 28.12.2001, he collected a checked in baggagebearing tag No.UL 281926. He had come by Srilankan Airlines Flight No.UL 121.This tag was in the name of one Noor Mohammed. The detenu started walkingthrough the green channel. He was intercepted by an Intelligence Officer onsuspicion that he was carrying some contraband. In the search, 10 Umbrellaswere found and in the rods of those umbrellas as many as 238 small metallicyellow rods made of gold were found. They amounted to 1630 Grams of goldworth about Rs.7,40,834/-.

3. His statement was recorded, where he admitted that the bag, though was inthe name of Noor Mohammed, belonged to him. His voluntary statement wasrecorded on the same day where he stated that he had visited India four orfive times earlier; that he knows Sinhalese and Tamil to read and write; thathe used to bring other materials like cloves and soaps, and used to carryclothes from here; that he had met a person named Noor Mohammed in ColomboAirport and he requested him to check in his baggage in the name of NoorMohammed along with his two baggages and for this he was paid Rs.500/-.Accordingly, he had, as per the request of Noor Mohammed, registered hisbaggage along with Noor Mohammed's two baggages in the name of Noor Mohammedand gave the luggage tag. He then admitted that he took the flight to Chennaiand in Chennai Airport he collected his one checked in baggage. Furtherstatement was also recorded on the same day wherein he admitted his connectionwith Noor Mohammed. On these grounds, the order seems to have been passedrendering him to be a smuggler and with a view to prevent him from taking partin the smuggling activities.

4. It is significant that in paragraph (v) of the detention order it isstated: "No complaint of ill treatment was made by you. Your Srilankanpassport was ordered to be retained to judicial custody."

5. After the order was passed, the petitioner who was in the judicialcustody and who was trying to obtain bail all through by making applicationsafter applications was detained under the preventive detention. There wereefforts on his part to retract the statement which he had given and he alsosent a representation to the authorities. It is this order of detention whichis challenged in the present writ petition.

6. Mr.K.A.Jabbar, learned counsel for the petitioner urged that thiswas a case of the failure on the part of the detaining authority to apply mindto the fact that the passport of the petitioner was retained and therefore,the order is a result of non-application of mind and non-consideration of thematerial facts.

7. In support of his argument, the learned counsel points out thatthe fact that the passport was ordered to be retained to judicial custody wasundoubtedly noted by the detaining authority. The learned counsel,painstakingly, took us through all the grounds and pointed out that after thisfact of the detention of the passport was noted, the concerned authority hasfurther noted in paragraph (xii): "The Customs in their reply dated 23.1.2002addressed to your brother Naushad have stated that you had given in yourvoluntary statement immediately after the seizure, which is in your own handadmitted that the baggage belonged to you, though it was booked in the name ofThiru Noor Mohammed; that you had travelled together with Noor Mohammed numberof times to Colombo; that a copy of the mahazar was given to you by theCustoms department; and that the dropping of case proceeding against youcannot be accepted".

8. The learned counsel also invited our attention to paragraphs 5 and6 of the grounds, which are as under:

" 5. The State Government are also aware of the fact that you are inthe Central Prison, Chennai as remand prisoner and there is likelihood of youbeing released on bail. The State Government are satisfied that there islikelihood of your indulging in the above said prejudicial activities againwhile on bail and there is a compelling necessity to prevent you fromindulging in such activities. The State Government, therefore, consider thatit is necessary to detain you under Section 3(1)(i) of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, 1974.

6. The State Government are also satisfied that on the facts and materialsmentioned above, if you are released on bail, you will indulge in suchactivities and that further recourse to normal criminal law would not have thedesired effect of effectively preventing you from indulging in suchactivities. The State Government, therefore, consider that it is necessary todetain you under Section 3(1)(i) of the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 with a view to preventing youfrom smuggling of goods in future."

9. The learned counsel, however, points out that there is absolutelynothing in the whole grounds to suggest that the detaining authority was aliveto the fact that the petitioner's passport was already retained to judicialcustody and therefore, it was impossible for him to have engaged himself insmuggling activities. According to the learned counsel, the detainingauthority has not considered the effect of the retention of the passport atall.

10. The gravamen of the contention is that whereas the detainingauthority has specifically stated that the release on bail of the detenu wouldgive him a further opportunity to do and continue his nefarious smugglingactivities. There is nothing in paragraphs 5 and 6 or for that matteranywhere to suggest that the effect of the retention of the passport wasconsidered by the detaining authority. The learned counsel says that thisamounts to non-application of mind, particularly because the whole detentionorder is on the ground that the concerned detenu has been travelling in and

11. The learned counsel very heavily relies upon the decision of theSupreme Court in RAJESH GULATI Vs. GOVERNMENT OF NCT OF DELHI reported in2002 (83) ECC 281 (SC). As per this decision, according to the learnedcounsel, the Supreme Court found that the withdrawal or retaining of thepassport was a relevant circumstance. The learned counsel pointed out that inparagraph 15 of the judgment, the Supreme Court has clearly expressed that thewithdrawal of the passport was a relevant circumstance and that the conclusiondrawn by the detaining authority and some statements made while stating thereasons for detention were in the nature of pure speculation on the part ofthe detaining authority. It will be better to quote paragraph 15 of saidjudgment:

"... 15. In other words according to the detaining authority the prime moverfor the smuggling activity was the proprietor of M/s.B.D. Denim. Theappellant at the worst was a pawn in the hands of another. The likelihood ofthe appellant indulging in smuggling activities by the appellant was in anycase effectively foreclosed by the retention of his passport by the customsdepartment. The detaining authority noted that the appellant’s passport waswith the customs department and yet he said “but you are likely to travelclandestinely for the purpose of smuggling”. Now one of the instances ofsmuggling by the appellant as stated in the impugned detention order describethe appellant as having travelled without a passport for the purpose ofsmuggling. The conclusion that despite the absence of his passport theappellant could or would be able to continue his activities is based on nomaterial but was a piece of pure speculation on the part of the detainingauthority. These findings are sufficient to invalidate the impugned detentionorder and it is not necessary to consider the other issues raised by theappellant.”

12. The learned counsel further pointed out that similar to the reported decision, the petitioner was also described to be making trips in andoutside India and had been in contact with one Noor Mohammed who was more orless responsible for the activities of the petitioner. The learned counselpointed out the further similarity that the petitioner’s passport was alsowithdrawn by the Customs Department and therefore, there was no question ofpetitioner being able to conduct any activity much less of smuggling andtherefore, according to the learned counsel there was no basis for theapprehension of the detaining authority that the petitioner was likely tocontinue his smuggling activities or that he could, in fact, continue such anactivity of smuggling.

13. In short, the contention raised is that the detaining authority did nottake into consideration the fact that the whole pattern of the smugglingactivity depended upon the petitioner’s travel in and outside India along withNoor Mohammed, which undoubtedly require the passport, and since the passportwas retained in the judicial custody by the order of the Court, there was nopossibility of the petitioner continuing with the smuggling activity and thatthis suggestion should have been apparent in the grounds stated in support ofthe detention order.

14. As against this, the learned senior counsel and Public Prosecutor, Mr.I.Subramaniam, relied on the decision of the Supreme Court inM.AHAMEDKUTTY Vs. UNION OF INDIA reported in 1990 SCC (Cri) 258, and moreparticularly on paragraph 18 at page 269. The paragraph is in the followingterms:

“... 18. The next submission of counsel was that the detaining authorityshould have realized that the seizure of the detenu’s passports was by itselfsufficient to restrain the detenu’s smuggling activities, if any, andrefrained from passing the order of detention. We see no force in thiscontention. This was no doubt one of the factors that the detaining authorityshould have taken (and did in fact take) into account but it was for him toassess the weight to be attached to such a circumstance in arriving at hisfinal decision and it is not open to us to interfere with the merit of hisdecision. We, therefore, reject his contention of Mr.Vaidyanathan.”

15. The learned senior counsel says that the detaining authority was undoubtedly aware of the fact that the passport was impounded or retained inthe judicial custody, as the case may be, by the Department, and if, in spiteof that, the detaining authority chose to pass the order of detention, then itmust be presumed that the detaining authority had taken into considerationthis factum of the seizure of the passport in judicial custody and in spite ofthat it was satisfied in favour of the need of the detention.

16. The learned Public Prosecutor also expressed that if the contention of the learned counsel for the petitioner is accepted, it would bea thumb-rule that in all the cases involving smuggling where passport isimpounded or where the detenu is deprived of his passport, there would be noquestion of ordering any preventive detention.

17. Considering the rival submissions, we are of the clear opinion that in this case there is a specific pattern of smuggling described in thegrounds. That pattern of smuggling is to be seen in the statement of thedetenu to the effect that he had travelled four or five times in and outsideIndia either with or without Noor Mohammed and that he used to carry thecontraband goods only at the instance of Noor Mohammed. This suggests thatthe activity of smuggling, at least in the case of the petitioner, wasessentially connected with the travels in and outside India. There is noother activity either suggested or attributed to the petitioner. If this wasso, then while making up the mind for passing the order, it was undoubtedlyessential for the detaining authority to say something about the passporthaving been impounded and the result of the impounding of the passport by theCourt. Unfortunately, that is not to be seen in either paragraphs 5 or 6 orfor that matter anywhere in the grounds.

18. There is no doubt that in M.AHAMEDKUTTY case, the Supreme Court held that it was for the concerned authority to weigh this fact one way or theother. However, we cannot forget the observation of the Supreme Court in thatparagraph itself, which is to the following effect:

"This was no doubt one of the factors that the detaining authority should havetaken (and did in fact take) into account but it was for him to assess theweight to be attached to such a circumstance in arriving at his final decision

Conclusion

19. Therefore, the fact of the impounding of the passport or thedetenu deprived of the passport was undoubtedly a very relevant fact. What wehave before us is, only the fact that the passport was retained in thejudicial custody. That, in our opinion, would not be taking intoconsideration the result of the deprivation of the detenu of his passport. Inour opinion, the concerned authority should have been more elaborate andshould have shown that it had applied its mind to this particularcircumstance. When we see paragraphs 5 and 6 on page 7 of the detentionorder, all that is stated is that though the petitioner was in custody, he waslikely to be released on bail and if he was released on bail, he was bound toindulge in such activities and that further recourse to normal criminal lawwould not have the desired effect to effectively prevent him from carrying onwith these activities. Therefore, the most relevant fact that weighed withthe detaining authority to take the decision to detain was the likelihood ofthe petitioner to be released on bail. At the same time, when the backdrop ofthe detention was a patternised smuggling activity and the deprivation of thepassport was bound to put a complete stop to that pattern, it was imperative,in our opinion, for the detaining authority to take that fact also intoconsideration and there is nothing in the grounds that that fact has beentaken into consideration. Therefore, in our opinion, in the facts of thiscase, the retaining of the passport was of paramount importance and it wasliable to be taken into consideration and not having taken that intoconsideration, the detaining authority has failed to take into considerationthe very material fact, which has affected his thinking process and ultimatelythe decision. We hasten to add that we should not be taken to mean that inall the cases where the passport is impounded, the mentioning about the sameis a must. We are particularly taking this view, in view of the patternisedsmuggling activity in this case. Even a cursory look at the grounds wouldsuggest that the detaining authority has not applied its mind to this vitalfact of the deprivation of the detenu from his passport. In that, thedetention order suffers and is vitiated. In view of the fact that we areallowing the petition on this ground alone, we do not deem it necessary to goto any other point and the learned counsel also withdraws his arguments on theother points. The petition is allowed. The detenu be released forthwith,unless he is required in any other matter. Rule is made absolute. No costs.Consequently, connected H.C.M.P.No.164 of 2002 is closed.

Index: YesInternet:Yes

sasi

To:

1. The State of Tamil Nadurep. by the Secretary to Govt.,Public (SC) DepartmentFort St. George, Chennai.

2. The Union of Indiarep. by the Secretary to Govt.,Ministry of FinanceDepartment of Revenue(COFEPOSA Unit)Central Economic Intelligence BureauJanpath Bhavan, JanpathNew Delhi.

3. The Superintendent of Central PrisonCentral Prison, Chennai-3.

4. The Public ProsecutorHigh Court, Madras.