TaxTMI 
TaxTMI 
1999 (10) TMI 652
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.... powers conferred by section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), the Governor of Tamil Nadu hereby directs that the said Thiru Ahamed Nassar, son of Thiru Ahamed, be detained and kept in custody in the Central Prison, Chennai." 2. The detenu (Petitioner) arrived at Anna International Airport, Chennai on 12-3-1999 by Indian Airlines flight from Singapore along with three pieces of baggage, viz., one card board carton marked by Sony VCD MHC-V 818, one card board carton marked Sony VCD SS-V 818 and one green colour 'VENO' zipper shoulder bag and one transparent plastic duty free shop bag as hand luggage. He after completing his immigration formality collected his checked in baggage consisting of three pieces from conveyer belt No. 2 and proceeded to table No. 11, where he declared to the Superintendent in charge that he was in possession of one Video CD System, five cellular phones, 10 carton cigarettes and that the value of goods imported by him was Rs. 60,000. On suspicion the Custom Officer intercepted the detenu as he suspected the detenu might be carrying contraband or electronic goods in hu....
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....of goods brought by him. In fact he ingeniously concealed the cellular phones in cigarette cartons to evade detection by customs authorities and attempted to clear the goods without payment of appropriate customs duty. The aforesaid 65 assorted cellular phones, 14 AIWA walkmen, 10 cartons of State Express cigarette and one Soni video MHC-V CD system were seized under a mahazar for action under the Customs Act, 1962. The total value of goods seized is Rs. 7,16,200 (CIF) and Rs. 10,74,300 (market value) on the day of seizure. The further case is on the same day, on 12-3-1999 he made voluntary statement before custom officers at Anna International Airport, Chennai that since his income was not sufficient so to earn, he took a passport with the help of his friend to import goods to Chennai and to sell them in Burma Bazar. On 7-3-1999 he went to Singapore and from the income earned there bought some walkmen and one VCD and when he was about to leave Singapore one Seeni Mohamed met and introduced himself and gave some cigarette cartons and five cellular phones at Kualalampur to be carried to India and for which in turn he was paid his air ticket. These goods were contained in a green col....
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....t was received on 25-5-1999 and Central Government called for comments from detaining authority only on the 1-6-1999. Submission is, this delay could have been eliminated if the same were called through 'FAX' or by 'E Mail'. 7. The next submission is, the subjective satisfaction recorded by the detaining authority, that there was likelihood of detenu being released on bail is not based on any factual basis, which shows non-applying of mind by the detaining authority. He submits the bail application of the petitioner dated 1-4-1999 was dismissed by the Addl. Chief Metropolitan Magistrate on 12-4-1999, and no other bail petition was either pending or brought to the notice of the detaining authority when it passed the detention order on 28-4-1999. Finally, he submits that the detaining authority failed to take note that the petitioner was arrested under section 104 of the Customs Act for an offence under section 135 of the same Act and the conviction for which is only seven years' imprisonment. Hence, there was no compelling reason to detain the detenu under the COFEPOSA. 8. The first submission for the detenu is that there was delay in considering the representation of the dete....
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....at there was any callousness or undue delay caused by the State Government in disposing of detenu's representation. So far consideration of the detenu representation by the Central Government the relevant facts are, that the detenu sent his representation on 21-5-1999 from Chennai which was received in Delhi on 25-5-1999 and on the same day comments were called from the sponsoring authority at Chennai. Reply was sent by the sponsoring authority on 28-5-1999 which was received in Delhi on 31-5-1999. The same was placed before the Deputy Secretary, Central Government on 1-6-1999 who called for the comment of the detaining authority. This comment was sent by the detaining authority on 10-6-1999 which was received by the Central Government on 14-6-1999. On 15-6-1999 it was submitted to the Special Secretary and on the same day it was rejected and information was sent to the detenu also on the same day. The detenu on these facts presses that there is delay in considering his representation. The first is between 25-5-1999 and 28-5-1999 and then two days delay in receipt of the same by the Central Government which is on 31-5-1999. Next the delay is of nine days between 1-6-1999 and 10-....
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....e delay which remains unexplained becomes unreasonable. In spite of this well settled legal position the State Government has failed to explain satisfactorily that it had dealt with the representation of the detenu as promptly as possible." 13. In this case even after an opportunity was given by the Court, the State did not file any counter affidavit. 14. In Rajammal v. State of T.N. [1999] (1) SCC 417, the Court held : "The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned." 15. In this case, the Court held that though there is explanation for delay till 9-2-1998 but no explanation had been given for the delay which occurred thereafter that is to say till 14-2-1998. These decisions render no help to the detenu. The....
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....authority. It is also submitted that after its receipt the Secretary found it containing retraction of the confession but it was only repetition of what was contained in detenu's bail application dated 1-4-1999, which was placed before the detaining authority and was considered by him. 17. With reference to the letter of the advocate dated 19-4-1999, two reasons are stated for it not being placed before the detaining authority. Firstly, it refers to the retraction of confession made by the detenu which is referred to in the detenu's bail application dated 1-4-1999 and secondly since this was sent to a quasi-judicial authority, it should have accompanied with either a vakalatnama or an authorisation signed by from the detenu. Further it is said that the retraction could not be considered as it was not sent by the detenu himself. As a legal submission it is submitted, article 22(5) of the Constitution of India guarantees earliest opportunity to make a representation and its disposal but a detenu has no pre-existing right for expeditious consideration of his representation by the detaining authority prior even to his detention order. 18. Submissions so far made are misconceived ....
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.... section 3(1) of the COFEPOSA, where confessional statement retracted by the detenu was not placed before the detaining authority. 23. In Ayya alias Ayub v. State of U.P. [1989] (1) SCC 374, the Court held : "There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality." 24. In Sita Ram Somani v. State of Rajasthan [1986] (2) SCC 86, the court held : ". . . it appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the screening Committee in the first ....
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....same before the detaining authority. Respondent authority was not right in not placing it as it contains not only what is already referred to in the bail application dated 1-4-1999 but something more. 27. This shows there was really non-application of mind. It is not in dispute that the relevant date of the issue of formal detention order was 28-4-1999 though it was signed on 26-4-1999. Thus, there should be consideration of all relevant material in case such materials were within the reach of detaining authority till formal detention order was issued. 28. In the case of Mohd. Shakeel Wahid Ahmed v. State of Maharashtra [1983] (2) SCC 392, also detention was challenged as relevant material came into existence after signing of the detention order but before issuance formal order. The Advisory Board opined in the case of another detenu Shamsi that there was no sufficient cause for Shamsi's detention but this material was not placed before the detaining authority. The defence taken by the State was that the detention order is dated 8-10-1981 while advisory board's opinion is dated 19-10-1981. The constitution bench of this Court rejected this contention and held : "The explan....
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....basis. Such recording in the absence of any material shows non-application of mind by the detaining authority. The facts are, the detenu moved the bail application on 1-4-1999, which was dismissed by the Additional Chief Metropolitan Magistrate (E.O.II), Madras on 12-4-1999. No other bail application was brought to the notice of the detaining authority till the date he passed the detention order on 28-4-1999. Repelling this contention, submission for respondent-State is that this rejection of the bail application was placed before the detaining authority, who was aware that detenu was entitled to go in appeal for bail up to the higher forum, namely, Sessions Court, High Court etc. It is in anticipation of such expected action from the detenu the said subjective satisfaction was arrived at. Submission is in fact later a bail application was moved in the Sessions Court which was dismissed on 23-4-1999 and another bail application was filed in the High Court on the same day which was also dismissed on 30-4-1999 which is after passing of the detention order. 31. In interpreting any provision of Preventive detention law, its preamble and its objectives has to be kept in mind. The Pre....
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.... of backward class, Scheduled Castes and Scheduled Tribes or in the cases of religious denominational institution. Each of the most solemn rights of any citizens is cloaked with reasonable restrictions under various sub-clauses of article 19. The protection of life and personal liberty enshrined in article 21 itself contains the restriction which can be curtailed through the procedure established by law, which of course has to be reasonable, fair and just. Article 22 confers power to deprive of the very sacrosanct individual right of liberty under very restricted conditions. Sub-clauses (1) and (2) confers right to arrest within the limitations prescribed therein. Sub-clause (3) even erases this residual protective right under sub-clauses (2) and (3) by conferring right on the authority to detain a man without trial under the preventive detention law. This drastic clipping of right is for a national purpose and for the security of the State. 35. Similarly, article 301, Chapter XII of the Constitution confers right to trade, commerce and intercourse freely throughout the territory of India but succeeding articles, viz., articles 302, 303 and 304 slice that absolute freedom in ....
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....'s detention through their causal conduct, neglect, lethargy, etc. on the other hand all what is required to be done by it is if it has been done then in construing its conduct, conclusions etc., if there be two possible interpretations then the one that subserve the objective of the statute should be accepted. 38. Next, returning to the issue under consideration, as to what should be the measure to test the legality of the subjective satisfaction of the detaining authority when he records, 'there is likelihood of detenu being released on bail'. Even for judging this we have to keep in mind the aforesaid conspectus of the Constitution, preamble, objects and reasons of the Act. When one's liberty is to be curtailed, on the subjective satisfaction of the detaining authority, with area of interference by the court being limited, then within this limitation, Court must see, in this authorities privileged area that the detaining authority does not stretch itself illegitimately in the exercise of its jurisdiction. 39. The learned counsel for the detenu relies on Dharmendra Suganchand Chelawat v. Union of India [1990] (1) SCC 746, in this case the Court held: "In the present case....
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.... reliance is placed on the following passage which approved the case of Kamarunnissa v. Union of India [1991] (1) SCC 128 held :- "The decisions of this Court to which our attention was drawn by the learned counsel for the petitioners lay down in no uncertain terms that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity if set at liberty." 44. The above decision is strongly relied by the learned counsel for the detenu as detention therein was also under section 3 of the COFEPOSA pertaining to an offence under section 135 of the Customs Act. It was held that the State could not bring to the notice any material indicating that release of the petitioner was imminent or there was a likelihood of his being released. In that case the bail application was finally dismissed on 9-6-1992 and hence there was no scope for presuming a likelihood of his being released on bail. Further significantly proposal for the detention was sent on 22-5-1992 but the authority concerned pass....