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TMI Blog2009 (10) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... ent herein under the COFEPOSA Act and set aside the same and produce the detenu before this Court and set at liberty the detenu M.Amzath Khan, son of Mohammed Kasim, aged about 30 years, who is at present confined at Central Prison, Puzhal. H.C.P.No.640 of 2009 filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records of the detention order in G.O.No.S.R.1/062-11/2009 dated 09.03.2009 passed by the 1st respondent herein and quash the same and direct the respondents to produce the body of the person of the detenu namely Ahmed Saleem, son of Hameen Ali, aged about 30 years before this Court, now detained under section 3(1)(i) 3(1) of the COFEPOSA Act in the Central Prison, Madras. H.C.P.No.711 of 2009 filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records of the detention order in G.O.No.S.R.1/62-07/29 dated 09.03.2009 passed by the 1st respondent herein and quash the same and direct the respondents to produce the body of the person of the detenu namely Ramesh, son of Packiri, aged about 31 years before this Court, now detained under section 3(1)(i) 3(1) of the COFEP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 15.01.2009 based on the statement of a co-detenu. Thereafter, on 09.03.2009, the 1st respondent has passed separate detention orders against the detenus under section 3(1)(i) and (ii) of the COFEPOSA Act. Challenging the same, the present habeas corpus petitions have been filed. 4. Advancing arguments on behalf of the petitioners, the learned Senior Counsel, inter alia, would submit that the detention orders passed by the 1st respondent are seriously suffering from series of infirmities for the following reasons : (a) The learned senior counsel invited the attention of this Court to a letter dated 03.03.2009 written by the Special Public Prosecutor to the Assistant Director, Directorate of Revenue Intelligence and contended that the detenu in H.C.P.No.523 of 2009 filed a bail application on 02.03.2009 and got bail order on the same day itself. Though this fact was informed to the Assistant Director, Directorate of Revenue Intelligence by the Special Public Prosecutor, the vital documents pertaining to the grant of bail were not placed before the detaining authority while passing the detention order in H.C.P.No.523 of 2009. Similarly, in H.C.P.No.640 of 2009, the detenu was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the provision relating to section 77 of the Customs Act had been invoked in para (xxiii) of the grounds of detention which section had nothing to do with the export of goods and the said provision deals about declaration by the owner of baggage. The detaining authority had wrongly invoked the said section, which is yet another glaring example to show the non-application of mind on the part of the detaining authority. (c) The learned senior counsel would further submit that a perusal of the grounds of detention, would show that the detaining authority formulated the grounds for detention of the detenu or co-detenu and the word 'You' is deleted or added in each and every grounds of detention, which would also show that the orders have been passed mechanically without application of mind. (d) A letter dated 24.04.2009 from the Directorate of Revenue Intelligence, New Delhi addressed to one Shri P.Aari supplied to the detenu only on the previous working day of the hearing of the Advisory Board along with a covering letter. The said covering letter does not contain the particulars as to what purpose the said documents were supplied to them. On account of supply of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the correct details by calling for an explanation. Hence, the orders are liable to be set aside. Further, there was a delay of four months in passing the detention orders and the same are passed on the basis of a single and solitary instance and hence, on these grounds also, the detention orders are liable to be set aside. 5. Per contra, the learned Additional Public Prosecutor made his submissions contrary to the submissions made by the learned senior counsel for the petitioners, by placing reliance on the judgments reported in STATE OF TAMIL NADU ..vs.. ALAGAR ((2006)3 SCC (Crl.)311, SUNILA JAIN ..vs.. UNION OF INDIA ((2006) 2 SCC (Crl.)90):(2006) 3 SCC 321, C.AMALORPAVAM ..vs.. THE STATE OF TAMIL NADU (2005-1-L.W.(Crl.) 460) and STATE OF TAMIL NADU ..vs.. ABDULLAH KADHAR BATCHA ((2009) 1 SCC (Crl.)497). 6. The Court has paid its anxious consideration to the submissions made by the learned counsel on either side and perused the materials. 7. So far as the first ground is concerned, the learned senior counsel would submit that the bail application filed by the detenu in HCP.No.523/2009 and the bail order dated 02.03.2009 as well as the interim bail granted in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Varadharaj v. State of T.N.((2002)6 SCC 735) upon noticing some of the decisions relied upon by Mr Mani inter alia held: (SCC p.738, para 6) 6. From the above observations, it is clear that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case . 23. In Radhakrishnan Prabhakaran v. State of T.N.((2000)9 SCC 170) this Court clearly held that only such documents are required to be supplied which are relevant, stating: (SCC p. 173, para 8) 8. We may make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him. It is admitted by the learned counsel for the petitioner that the order granting bail has been supplied to him. Application for bail has been submitted by the detenu himself when the order of detention was passed which was subsequent to the order granting bail. We cannot compr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form . Section 51 of the Customs Act deals with Clearance of goods for exportation, which reads as follows: Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation . 10. In the instant case, no shipping bill was filed by any of the detenus. But in the grounds of detention, the detaining authority (in para (xxiii) of the grounds of detention in HCP No.523 of 2009) has dealt with the provisions under section 113 of the Customs Act and stated that the acts of rendering the goods liable to confiscation under Section 111 or 113 would amount to smuggling. As contended by the learned senior counsel for the petitioners that a combined reading of all the provisions would show that only on filing of shipping bills, clearance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an end. Likewise, on reaching the destination, somebody i.e., other than the person who brought the goods, deal with the contraband to avoid confiscation either under section 111 or 113 of the Customs Act , undoubtedly, the authority empowered to make orders detaining him in prison with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling the goods, or abetting the smuggling of the goods. 11. But in the cases on hand such a situation does not arise. Here, the question is whether the invoking of provisions of section 3(1)(i) and (ii) of COFEPOSA Act for clamping the detention orders would amount to non-application of mind when the detenus are not exporters. Therefore, we are not inclined to accept the submission of the learned Additional public prosecutor by relying upon the abovesaid decision. Further, the Court is of the opinion that while passing the order of preventive detention, the detaining authority should meticulously go through all the vital materials which would influence the mind of the detaining authority to pass the order within the frame of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by obtaining No Objection Certificate from the Narcotics Commissioner. The said document does not contain the word 'Ketamine Hydrochloride', which is said to have been exported without obtaining permission from the authorities concerned. Though a submission was made by the learned Additional Public Prosectutor that the Ketamine Hydrochloride is nothing but the derivative of 'Ketamine', there is no document filed in support of the submission made by the learned Additional Public Prosecutor. Under such circumstances, the Court is of the view that the detaining authority has travelled beyond the averments of documents available before him and inferred that Ketamine Hydrochloride can be exported by obtaining No objection Certificate , when the document relied upon by him says only Ketamine. Therefore, the said act of the detaining authority shows his non-application of mind in passing the impugned orders. 16. With regard to the submission relating to the packages, as could be seen from the records, besides 155 packages which were marked as 1 to 155, there were 16 packages which were not numbered with marks. If 16 packages were deducted, then the balance would b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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