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TMI Blog2000 (12) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent. 4. Krishnan Govindaraj, the detenu was ordered to be detained as the first respondent had arrived at the subjective satisfaction that the detenu had indulged in smuggling activities and that he has to be detained under Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to prevent him from smuggling goods in future. 5. One of the grounds advanced by the learned senior counsel relates to the subjective satisfaction arrived at by the Detaining Authority. Hence material facts leading to clamping of detention have to be set out. 6. Based upon the intelligence gathered that the detenu was proceeding to Singapore by Singapore Airlines and he would be carrying Foreign currencies with him without declaring the same, the customs Intelligence Officers of the Zonal unit kept surveillance at the Departure Hall of the Chennai International Airport. The detenu, a holder of Indian Passport, who was carrying an identity card issued by the Corporation, as its sitting councillor, after completion of the immigration and customs check was intercepted, while he was proceeding for security check. On preliminary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en called for from the said Court, not a copy of the same had been furnished to the detenu, despite his request resulting in infraction of Art.22(5) of the Constitution and consequently, the detention has been rendered illegal. (iv) It is nextly contended that the Department of Revenue Intelligence (DRI) officers are not proper officers within the meaning of the Customs Act an i the DRI officers not having being conferred with the powers, the entire search, seizure and recovery and the consequential order leading to clamping of detention is vitiated. 10. While meeting the said contentions, Mr.G.M.Syed Fasiuddin, learned Additional Public Prosecutor contended that the subjective satisfaction arrived at by the Detaining Authority is not vitiated, nor it had taken into consideration of irrelevant or extraneous matters and the reference made to the personal conduct or the subsequent police complaint is only a passing reference and that the same will not vitiate the order. 11. While meeting the second contention it was contended that the remand proceedings have to be read as a whole and the earlier as well as later order and the rejection of the bail application would show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during 1992, that during 1984 he met with a road accident and underwent solactamy (removal of spleen) and he has also sustained abdomen injury besides he is a chronic diabetic, dependent on insulin. The detenu had been referred to the Medical Officer for opinion and as per the orders of the Additional Chief Metropolitan Magistrate, the Medical Officer had submitted a report. After considering the report, the said Additional Chief Metropolitan Magistrate directed that the detenu be admitted in the General Hospital, Chennai for treatment. The detenu who had been lodged in Central Prison had been admitted in the General Hospital. The detenu was initially produced before the Court on 28.6.2000 and he was remanded till 12.7.2000. As the investigations was in progress the DRI officers moved the Additional Chief Metropolitan Magistrate for extension of remand of the detenu for a further period of 15 days from 12.7.2000. The petition under Sec.167(1) of the Act was filed on 12.7.2000. On 12.7.2000, on the said remand extension application, the Additional Chief Metropolitan Magistrate passed the following order: 12.7.2000: Accused not produced since the accused is admitted in the Hospi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority is well founded in proceeding on the premise that the detenu is a remand prisoner and he is in judicial custody. Hence this contention cannot be sustained. Though the learned senior counsel for the petitioner referred to several decisions in support of his contention, in our considered view, those decisions are distinguishable on the facts of the case and they have no application to the case on hand. 17. In Jumma Khan v. State of Tamil Nadu and another, H.C.P.No.909 of 2000, dated 1.11.2000 to which one of us (E.Padmanabhan, J.), was a party, it has been held thus: 10. Nextly it was contended that the retraction addressed to the Additional Chief Metropolitan Magistrate, Economic Offences, Chennai on 16.3.2000 had not been referred to, nor been taken note of by the Detaining Authority, nor copy furnished despite request. In this respect it is to be pointed out that the order of detention has been passed on 26.4.2000. Concedingly, the retraction letter had not been addressed either to the Sponsoring Authority or to the Detaining Authority. But it has been addressed to the judicial forum, namely the Additional Chief Metropolitan Magistrate, who had remanded the detenu t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as detailed in the Mahazar, recovery of identity card, seizure of currency, air ticket, boarding pass for further investigation. 21. In para. (ii), the Detaining Authority had referred to the statement given by the detenu on 28.6.2000 before the DPI officers and the entire incident commencing from interception to recovery of the foreign currencies and the statement of the detenu that the said currencies had been handed over to him by a person from Burma Bazaar with an instruction to hand over the same at Singapore for a monetary consideration of ₹ 5,000. 22. In para. (iii) search of the two residential premises of the detenu had been set out. In para. (iv), the violation of the various provisions of the Customs Act and the offences committed by the detenu by his attempt to export the foreign currencies have been set out in detail. In para. (v) the Detaining Authority has referred to the arrest and remand to judicial custody. In paras. (vi), (vii), (viii), (ix) and (x) of the grounds the Detaining Authority has set out the intimation of arrest, the remand, the rejection of bail applications in detail relating thereto, the details of contravention of foreign exchange prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a passing reference, we are not inclined to accept as in our considered view, it is a material which had been taken into consideration by the Detaining Authority as seen from the preamble portion of the detention order and also seen from paras.2 and 4 of the order which read thus: 2. From the above materials, the State Government are satisfied that you have indulged in smuggling goods. xxx xxx xxx xxx xxx 4. While arriving at the subjective satisfaction to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into consideration all the facts and materials referred to and relied upon in these grounds mentioned above and also the statements, mahazars, etc., accompanying thereto. 27. The contents of paras.2 and 4 would mean that one of the ground which weighed or might have weighed the Detaining Authority is the materials referred to in para. (xii) of the grounds of detention and the possibility of the mind of the Detaining Authority being influenced by the facts set out in ground No.(xii) cannot be ruled out and the said passage also cannot be taken as a passing reference in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detenu is a hardened criminal, having a gang under this control often committing heinous crimes, that many cases against the detenu are registered in various police stations and that he is in the habit of committing offences. No doubt, these averments are not made mention of in the grounds of detention. But can it be said that these materials placed before the authority might not have influenced the mind of the Detaining Authority in taking the decision of detaining the detenue In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the Detaining Authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of the detenu. The above pronouncement squarely applies to the facts of the present case. 29. The learned senior counsel also relied upon an order passed by this Court in H.C.P.No.2273 of 2000. In the said pronouncement it has been held thus: 5. From a plain reading of Sec.3(1) of the Act, we are of the opinion that an order of preventive detention can be passed, upon the satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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