9911796707
TMI Blog2009 (10) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 COFEPOSA Act in the Central Prison, Madras. For Petitioner : Mr.Habibullah Basha, Senior Counsel for Mr.V.S.Venkatesh For Respondents: Mr.Babu Muthu Meeran, Addl. Public Prosecutor -R1 Mr.S.Udayakumar, S.S.C.,-R2 COMMON ORDER (Order of the Court was made by R.SUBBIAH, J.,) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled. 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 granted an interim bail on 15.02.2009 to attend his sister's marriage at Chennai, but the said interim bail application for interim bail and the order passed by the Magistrate concerned were not placed before the detaining authority nor they were supplied to the detenu and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 letter at the last moment, the detenus were kept in dark and deprived of the right from making an effective representation before the Advisory Board. Though the said letter dated 24.04.2009 was supplied to the detenu, the same was not placed before the Advisory Board. Hence, the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 of the detenu in HCP.No.640/2009 were neither placed before the detaining authority nor supplied to the detenu. In this regard, the learned senior counsel has placed the judgments reported in 1999(3) Crimes 277 (HAJI ISHABHAI AGEWAN ..vs.. UNION OF INDIA) and 1990 Vol.2 SCC 1 (M.AHAMED KUTTY ..vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 comprehend as to how a prior order rejecting bail would be of any relevance in the matter when it was later succeeded by the order granting bail". Therefore, in our opinion, the principle of furnishing of the bail application and the bail order in all the cases under all circumstances need not be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 will be given for exportation. Under such circumstances, only if any goods for exportation is liable to be confiscated under section 111 or 113, then only it would amount to smuggling, as defined under section 2(39). But in the instant case, no shipping bill was filed by any of the detenus, as stated supra. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting 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 Constitutional mandates; otherwise, the order would lead to a conclusion that the authority has mechanically and arbitrarily passed the order with non-application of mind. 12. In this context, we would also like to point out that the detaining authority while formulating the grounds of the detention has used the word you whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be only 155. But the department has arrived at the figure as 163 packages in the mahazar. Under such circumstances, the Court is of the view that there is a confusion with regard to the number of packages and the detaining authority ought to have called for an explanation from the authorities concerned to get himself satisfied. But wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
