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2010 Supreme(Mad) 5515
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Seyed Ahamed Hamzeen
Versus
The State of Tamil Nadu Rep. By the Secretary to Government & Others
H.C.P.No.271 of 2010
Decided On : 22-12-2010
For the Petitioner:M.M.K. Alifudeen, Advocate.
For the Respondents: R1 & R3 - V.R. Balasubramaniam, Additional Public Prosecutor, R2 - S. Udayakumar Sr. CGSC.
The detention order is vitiated if relevant documents are not placed before the detaining authority, and observations about future activities must be based on factual basis and not speculation.
Headnote:
COFEPOSA - Detention Order - Customs Act 1962, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 132, 135, 3(1)(i) - The judgment discusses the detention order made under the COFEPOSA enactment and the circumstances leading to the order. It highlights the provisions of the Customs Act 1962 and COFEPOSA, specifically Sections 132, 135, and 3(1)(i), and their application in the case. The court's decision is influenced by the interpretation of these provisions and their impact on the detention order.
Fact of the Case:
The detenu attempted to smuggle gold bits without declaration to the customs, leading to his arrest and detention under the COFEPOSA. The petitioner argued that a pre-detention letter was not considered, and the detaining authority's observation about future activities lacked basis.
Finding of the Court:
The court found that the non-placement of the pre-detention letter vitiated the detention order. It also concluded that the authority's observation about future activities lacked foundation, leading to the setting aside of the detention order.
Issues: Non-placement of pre-detention letter, Detaining authority's observation about future activities
Ratio Decidendi: The detention order is vitiated if relevant documents are not placed before the detaining authority. Observations about future activities must be based on factual basis and not speculation.
Final Decision: The habeas corpus petition is allowed, setting aside the detention order and directing the detenu to be set at liberty forthwith.
(Order of the Court was delivered by M.CHOCKALINGAM, J.)
1. This petition challenges an order of detention made on 27.1.2010, by the first respondent under the provisions of COFEPOSA enactment.
2. The Court heard the learned Counsel for the petitioner and looked into all the materials available and in particular, the order under challenge.
3. The facts and circumstances which led the first respondent to make the order of detention under the provisions of the COFEPOSA can be stated as follows:
(a) On 21.12.2009, the petitioner detenu arrived from Colombo at the Airport along with Sri Lankan passport No.N 2376567 dated 15.7.2009. At the time of interception, in view of the suspicion entertained that he might be carrying gold/contraband goods in his baggage or in person, by the officials attached to the Customs Department, he gave a reply in the negative. But the authorities were not satisfied. Then, in the presence of the witnesses, the hand baggage when examined, found to contain the used clothes. When there was a persistent and questioning, the detenu admitted that he kept concealed two packets containing gold bits in his rectum. He volunteered to eject the same, and accordingly, he ejected the said packets containing four rectangular gold bits which were actually kept in adhesive wrapped packets.
(b) In the presence of the said witnesses, an approved goldsmith examined all the four gold bits and ascertained that they were of 24 carat purity, totally weighing 1177 grams and also valued at Rs.20,18,555/-. The said goldsmith issued a certificate dated 21.12.2009, to that effect. The witnesses who were present, have also attested the said certificate.
(c) Since the detenu attempted to smuggle the goods without making a declaration to the customs and also without any permit or license, all the gold bits were seized under a mahazar to initiate action under the Customs Act 1962. The travel documents namely the passport and the customs declaration card of the detenu were seized under a cover of mahazar. The statement which was voluntarily made by the detenu, on the same day before the Customs Officer at Anna International Airport, was recorded wherein he narrated the sequence of events. Thereafter, he was shown arrest on 22.12.2009, and produced before the Additional Chief Metropolitan Magistrate (E.O.I), Egmore, and remanded to judicial custody till 6.1.2010. He has not made any complaints of ill-treatment against the officials. The period of remand was further extended upto 19.1.2010.
(d) An intimation as to the fact of arrest and the production before the Additional Chief Metropolitan Magistrate and the judicial remand thereon was given to the wife of the detenu by a telegraphic message dated 22.12.2009. The Sri Lankan Deputy High Commissioner was also intimated by a letter dated 22.12.2009, about the arrest of the detenu and also the judicial remand.
(e) The Senior Intelligence Officer, R&I Unit (Air), Chennai, has issued a Corrigendum dated 6.1.2010, stating that the value of the contraband in the arrest memo may be read as Rs.20,18,555/- instead of Rs.20,18,155/-. The Corrigendum letter dated 6.1.2010, was also sent to the Sri Lankan Deputy High Commission, Chennai.
(f) An application for bail was made on 24.12.2009, before the Court of the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, wherein he made a statement that the statement recorded from him was tainted with invalidating factors of threat, and thus he retracted the same. A counter petition was filed by the department. But the Court of Additional Chief Metropolitan Magistrate by an order dated 5.1.2010, granted bail with a condition to remain at Chennai and sign before the Customs Department daily at 10.30 A.M., until further orders. Accordingly, the detenu has been appearing and reporting to the customs authorities daily.
(g) By attempting to smuggle the four numbers of gold bits as referred to above, by way of concealment in the rectum and
