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K. KRISHNAVENI versus THE SECRETARY

High Court of Madras

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K. Krishnaveni v. The Secretary - H.C.P.No.224 of 2005 [2005] RD-TN 775 (9 November 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09/11/2005

CORAM

THE HON'BLE MR. JUSTICE P. SATHASIVAM

AND

THE HON'BLE MR. JUSTICE S.K. KRISHNAN

H.C.P.No.224 of 2005

K. Krishnaveni .. Petitioner -Vs-

1. The Secretary

Government of Tamil Nadu

Public (Law and Order) Department

of Revenue, Secretariat,

Chennai 600 009.

2. The Secretary

Government of India

Ministry of Finance

Department of Revenue (COFEPOSA UNIT)

Central Economic Intelligence Bureau

"B" Wing, 6th Floor, Janpath

New Delhi 110 001. .. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Habeas Corpus as stated therein. For petitioner : Mr. B. Kumar, Sr. Counsel

for Mr. K. Azhaguraman

For respondents: Mr. A. Kandasamy

Addl. Public Prosecutor for R.1 Mr. P. Kumaresan

A.C.G.S.C. For R.2

:ORDER



( Order of the Court was made by P. Sathasivam,J.) The petitioner, by name, K. Krishnaveni, wife of the detenu challenges the detention order passed by the Secretary to Government, Public (S.C) Department, Chennai-9, detaining her husband, V. Subramaniyam under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( in short "COFEPOSA Act") in G.O.No.SR.1/1561 -3/2004, dated 27.12.2004.

2. The brief facts of the case are as under:- (a) On 1.12.2004, the Customs Authorities, on information, searched the factory premises of Karware Impex (P) limited, at Minjur, Ponneri Taluk and found three advance licences under Duty Exemption Entitlement Certificate Scheme (in short DEEC Scheme). The total quantity importable under the three licences was 1053.128 MTs. of stainless steel/coils of AISI 304 Grade. (b) During the search, as per the grounds of detention, the Customs officers verified the stock of imported goods with reference to packing lists under which the goods were imported under DEEC Scheme. According to the Authorities, the stock of imported goods available was 335.293 MTs. and 960 MTs. of imported goods were in shortage. A statement was obtained from the detenu and samples of the finished goods as well as the goods in the process of manufacture were taken for analysis.

(c) The Customs Officers also searched the factory of M/s.Chennai Hitech Home Appliances (P) Ltd., at Pulianthope, Chennai-12. Documents were seized from both the premises. The residence of the detenu was also searched and the officials seized certain documents. In the statement, the detenu explained about the total quantity of goods available and what had been diverted to High sea seller and the detenu undertook to pay the differential duty on the quantity of goods imported.

(d) A statement was recorded from one Nanditha, Managing Director of the Company, Chennai Hitech Home Appliances (P) Ltd., The Manager - Finance, Chennai Hitech Home Appliances (P) Ltd., by name, Manjula also gave a statement. Three private small notebooks were seized from the office of the detenu. The said Manjula in her statement has stated about the relevant entries made in the notebooks.

3. As per the grounds of detention, the detenu contravened Sections 111 (o) and 113 (i) of the Customs Act, 1962, as he indulged in smuggling of goods and also misused the DEEC Scheme by selling imported stainless steel and thereby, evaded customs duty on the imported items. The detenu was arrested and remanded to custody on 9.12.2004. On 10.12.2004, the detenu retracted his statement and on 27.12.2004, the detention order was passed preventing the detenu from smuggling goods.

4. Heard Mr. B. Kumar, learned senior counsel appearing for the petitioner, Mr. A. Kandasamy, learned Additional Public Prosecutor for the first respondent and Mr. P. Kumaresan, learned Additional Central Government Standing counsel for the second respondent.

5. Mr. B. Kumar, learned senior counsel appearing for the petitioner, after taking us through the grounds of detention and other connected materials supplied in the form of booklet to the detenu, has raised the following contentions:

(i) The impugned detention order has become void on the 5th day of detention, since documents which are referred to and relied upon in the grounds of detention have not been supplied pari passu along with the grounds. According to him, the Officers verified the stock of imported goods available in the factory godown with the packing lists pertaining to the Bills of Entry under which the goods were imported under DEEC Scheme, which by comparison with the available material, showed that there was shortage in the goods imported. The crucial documents, (a) Packing list, (b) Bills of Entry and (c) documents showing the import under DEEC Scheme have been not supplied to the detenu. (ii) Though it is alleged that the imported stainless steel sheets/ coils have been diverted to local market and the quantity of goods so sold in the local market as rejects have been entered in the finance books, copies of those finance books have not been supplied to the detenu. (iii) It is alleged in the grounds of detention that the diverted imported goods were sold for cash and the entries thereof were written by one Manjula, Manager-Finance, Chennai Hitech Home Appliances (P) Ltd., in the three small notebooks by way of journal entries, but those three small notebooks have not been supplied.

(iv) The action taken under COFEPOSA Act is premature.

6. Mr. A. Kandasamy, learned Additional Public Prosecutor, by pointing out the relevant materials from the grounds of detention and the counter-affidavit, would contend that all the required and relied upon documents have been furnished to the detenu. According to him, the documents referred for completion/narration of the case need not be supplied to the detenu. He further contended that considering the fact that the detenu contravened Sections 111(o) and 113(i) of the Customs Act, 1962, with a view to prevent him from smuggling the goods in future, the impugned order under Section 3(1)(i) of the COFEPOSA Act has been passed detaining the detenu and he is kept in custody in the Central Prison, Chennai.

7. We have carefully considered the rival contentions and perused the relevant materials.

8. Before considering the contentions raised by both the parties, it has to be noted that the detenu is entitled to copies of the relied upon documents along with the grounds of detention. Sub-clause (3) of Section 3 of the COFEPOSA Act makes it clear that for the purpose of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. In other words, if the document on which reliance has been placed by the detaining authority has not been supplied to the detenu, it is sufficient to set aside the order of detention. The said legal position is not disputed.

9. As the contention of learned senior counsel for the petitioner relates to the non-furnishing of certain relevant/important documents, such as finance books, small notebooks, three in number and bills of entry, we perused the entire detention order. It shows that the Company of detenu, namely, Karware Impex (P) Limited at Minjur had obtained three advance licences under DEEC Scheme. It also shows that the total quantity importable under the three licences was 1053.128 MTs. stainless steel sheets / coils of AISI in 304 grade. The grounds also show that on 1.12.2004, when the search was made, the Customs Officers verified the stock of imported goods with reference to packing lists pertaining to bills of entry under which goods were imported under DEEC Scheme. It also shows that after verifying packing lists, stock register, etc. the authorities found that 960 MTs. of imported goods were in shortage. The detenu who was present at the time of search has stated that he made export under DEEC Scheme and procured huge quantity of stainless steel sheets / coils of local make and the balance quantity after export were available in the factory. It also shows that the samples of finished goods as well as goods in the process of manufacture were taken for analysis.

10. By drawing our attention to the tabular column found in Ground (vi) in the Grounds of Detention which speaks about the quantity imported, the learned senior counsel contended that no documents like, bills of entry and packing lists have been supplied to show how the figures were arrived at in the said tabular column. We verified the details furnished in the tabular column. As already stated, the calculation under the head, "quantity imported" must be as per the bills of entry or packing lists.

11. Though learned Additional Public Prosecutor has disputed the claim of the learned senior counsel for the petitioner, as said earlier, after verification of the grounds of detention, we are of the view that since reference has been made to the packing lists and bills of entry, however, copies of those documents have not been supplied to the detenu.

12. The grounds of detention also show that the imported stainless steel sheets/coils have been diverted to local market and the quantity of goods so sold in the local market as rejects have been entered in the finance books. It is the grievance of the detenu that the said finance books have not been supplied to him.

13. It is also brought to our notice from the grounds of detention that statements were recorded from Nanditha, Managing Director of the Company, M/s. Karware Impex (P) Ltd., and she was in charge of production planning. It is also pointed out that one Manjula, Manager-Finance, Chennai Hitech Home Appliances (P) Ltd., gave statement relating to journal entries in three private small notebooks and by relying on the same, it is stated that the diverted imported goods were sold in cash and the entries thereof were written by Manjula, Manager-Finance. The ground (xv) specifically refers to the journal entries in private small notebooks. As rightly pointed out, the detaining authority heavily relied on the entries made therein. Though the authorities have seized the said three small notebooks, it is the grievance of the detenu that copies of the same have not been supplied to him.

14. Though in the affidavit dated 23.2.2005, there is no specific reference to this contention, but a reference in general has been made. It is not in dispute that the petitioner has filed HCMP.Nos.94/20 05 and 122/2005 seeking permission to file supplementary affidavit raising additional grounds. It is also not in dispute that by order dated 6.10.2005, this Court ordered both the miscellaneous petitions. As a matter of fact, the first respondent has filed a lengthy counter affidavit opposing the above applications. Hence, we are satisfied that all the above objections have been taken by way of additional grounds and the respondents are also aware of the same.

15. In the earlier part of this order, we have observed that if a document is really relied upon by the detaining authority when he passed the order of detention detaining the detenu under COFEPOSA Act, undoubtedly, the detenu is entitled to copy of the document. Section 3(3) of COFEPOSA Act mandates the authority to furnish copy of the relied upon document ordinarily within five days from the date of detention and in exceptional cases, within 15 days from the date of detention. Apart from the above statutory provision, Article 22(5) of the Constitution of India also makes it mandatory that copies of the relied upon documents should be communicated to the detenu for making an effective representation.

16. In the case of Mulchandani vs. Assistant Secretary, Government of Maharashtra reported in AIR 1982 SC 1221, their Lordships have held that where a list of smuggled goods is recovered from a detenu and is relied on in grounds of detention, it is a material document and non-supply of that document to the detenu would render the order of detention void. They also held that until the list was supplied, it was not possible for the detenu to make an effective representation against the order of detention to the detaining authority. Before the Supreme Court, a contention was raised that the most important document, which is the sheet-anchor of the allegations against the detenu has not been supplied to him up till today even though it was relied upon in the order of detention. The said document is in the nature of a slip which was recovered from the detenu and is said to have been written and handed over to him by the other detenu. In one of the grounds of detention, it is clearly stated that the summary made by another detenu in respect of the articles smuggled was recovered from him and was admitted by him before the Customs Officer during the adjudication proceedings. After referring to the relevant portion of the grounds of detention, their Lordships have concluded,

"It is, therefore, clear that until the actual account which was seized from Gulab Gopaldas Manghnani and was attested by two witnesses, was supplied to the detenu, it was not possible for the detenus to make an effective representation against the order of detention to the detaining authority. Mr. Rana appearing for the respondent submitted that although the slip of paper containing the accounts was seized from the possession of one of the detenus, it was not necessary to supply a copy of the same to them because in the statement which the detenu made before the Customs Authorities the details of Articles being smuggled were already given there. This argument is, however, not sufficient to meet the requirements of law because the statement made by the detenu is not admitted and in absence of the detailed account, the statement itself is not quite intelligible. In these circumstances, we are of the opinion that Mr. Jethimalani is right in contending that the slip containing the accounts was a material document which was undoubtedly referred to and relied on by the detaining authority and should have been supplied to the detenus pari passu the grounds of detention. For these reasons, the orders of detention are void. Accordingly, the petitions are allowed and the detenus are directed to be released forthwith."

It is clear from the above judgment that the slip containing the accounts was a material document and relied upon by the detaining authority; hence, the document should have been supplied to the detenu along with the grounds of detention.

17. A heavy reliance was placed on the decision of the Division Bench of this Court in the case of Seematti vs. Secretary, Government of Tamil Nadu, Home Department reported in 2005 Cri. L.J.738. In that case it was contended that since the officer recovered certain amount of foreign currencies, visiting card and a small "chit" containing certain writings on both sides from his pant pocket, and the same were relied on by the detaining authority, the detenus are entitled to copies of the same. The recovery of the Indian and foreign currencies and a "chit" containing some writings on both the sides were admitted. It is also the claim of the petitioner therein that in spite of the fact that the "chit" was recovered from the detenu and contents of the same were relied on by the detaining authority, the details found in one side of the "chit" were not furnished to the detenu. After finding that the contents of the chit (both sides) were heavily relied on in the grounds of detention, and in the absence of supply of the copy of the same, relying upon AIR 1982 SC 1221 (cited supra) and the case of Sophia Gulam Mohd. Bham vs. State of Maharashtra reported in AIR 1999 SC 3051, this Court concluded that since the detenu was not given the relied upon document in spite of the request made by him, the detention was not valid under the provisions of law. The said decision applies to the case on hand on all fours.

18. It is clear that the question of demanding documents as the same are relied on by the detaining authority is wholly irrelevant, because it is the constitutional mandate on the part of the detaining authority to furnish the documents relied on in the order of detention pari passu with the grounds of detention enabling the detenu to make an effective representation immediately, instead of waiting for the documents to be supplied with.

19. The true meaning and import of Article 22(5) of the Constitution of India is two-fold; (1) the detaining authority must communicate the order of detention as soon as the order of detention has been made; (2) the detaining authority must offer to the detenu the earliest opportunity of making representation against the detention order. These are the safeguards to be made before an executive authority can be permitted to detain a person in the name of public good and social security so as to safeguard his right and personal liberty.

20. Sub-section (3) of section 3 of COFEPOSA Act makes it clear that the grounds of detention must be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances, for the reasons to be recorded in writing, the time may be extended, but in any event, not later than 15 days from the date of detention. As said earlier, one of the primary objects of communicating the grounds of detention and the relied on documents to the detenu is to enable him at the earliest opportunity to make his representation against the order of detention and it is difficult to see how the detenu can possibly make a representation unless he is furnished with copies of documents, statements and other materials relied upon in the grounds of detention. In the case of Icchu Devi vs. Union of India reported in AIR 1980 SC 1983, their Lordships have held that there are no exceptions or qualifications provided to the above said Rule which operates in all its rigor and strictness and if there is any breach of this Rule, it must have the effect of invalidating the continued detention of the detenu.

21. We are satisfied that the above mentioned materials, namely, packing lists, bills of entry, finance books and small notebooks, three in number, were heavily relied upon by the detaining authority, in order to detain him under the COFEPOSA Act, and all of them have not been furnished to the detenu in terms of section 3(3) of the Customs Act, 1962 and Article 22(5) of the Constit ution of India, enabling him to make an effective representation against the detention order.

22. Another contention was raised that the detaining authority had failed to apply his mind to the fact that the steel items are fully importable under DEEC Scheme and export obligations were complied with and imports were regularized on payment of duty on import basis. It is also stated that though as per the Scheme the detenu had further time for the fulfillment of export obligations; hence, action under the COFEPOSA Act is not warranted and in any event, it is premature. In view of our conclusion on the ground of non-supply of materials and relied upon documents, we are of the view that there is no need to go into the merits of the above contention.

23. Apart from the infirmities pointed out above, learned senior counsel appearing for the petitioner, by drawing our attention to the fact that the detention order was passed as early as on 27.12.2004 and the detenu is in prison all along, namely, for over 10 months and the order of detention is for a period of one year, would contend that the detenu may be ordered to be released. In support of his claim, he relied upon the judgment of the Supreme Court in the case of K. Satyanarayanan Subudhi vs. Union of India reported in AIR 1991 SC 1375. In that decision, after finding that there was non-placement of retraction of confessional statement by the detenu before the detaining authority and also non-consideration of the same while arriving at his subjective satisfaction of the order of detention which goes to the root of the detention order and makes the order of detention invalid and also after noting another aspect that the detenu was in prison for 8 months and the period of detention is one year, the Apex Court quashed the order of detention therein. In the light of the above referred decision of the Supreme Court, in the case on hand also the detenu is in custody for more than 10 months and the period of detention is one year, we also consider this aspect in addition to our earlier conclusion.

24. It is made clear that we have not pronounced upon the validity of the order of detention, but merely held that the continued detention of the detenu is illegal on the ground of non-compliance of the requirements of clause (5) of Article 22 of the Constitution of India and sub-section (3) of section 3 of the COFEPOSA Act and therefore, nothing observed by us in this judgment will be considered as an expression of opinion on the validity or correctness of the order of detention made.

Under these circumstances, the order of detention impugned in this petition is set aside and the petition is allowed. The detenu is directed to be set at liberty forthwith from the custody unless he is required in connection with any other case.

Index:Yes

Internet:Yes

kh

To

1. The Secretary

Government of Tamil Nadu

Public (Law and Order) Department

of Revenue, Secretariat,

Chennai 600 009.

2. The Secretary

Government of India

Ministry of Finance

Department of Revenue (COFEPOSA UNIT)

Central Economic Intelligence Bureau

"B" Wing, 6th Floor, Janpath

New Delhi 110 001.

3. The Additional Director General,

Directorate of Revenue Intelligence

Chennai 17.,

4. The Director General of Police

Chennai 4.

5. The Commissioner of Police,

Greater Chennai, Chennai 8.

6. The Additional Director General

of Prisons, Egmore, Chennai 8.

7. The Superintendent of Prisons,

Central Prison, Chennai 3.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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