(Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to an order of the first respondent in Letter.No.S.R.1/489-7/2008 dated 12.8.2008 whereby one Hussain Abdullah was ordered to be detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner.
3. The order under challenge came to be passed under the following circumstances.
The petitioner/detenu was intercepted by the Officers of the Directorate of Revenue Intelligence Chennai at aero bridge of Singapore Airlines Flight SQ.529 on 17.7.2008 at Chennai Anna International Airport. The detenu was found carrying baggage and also produced his passport. When he was questioned, whether he has any checked in baggage, the detenu replied that he has one but he did not produce the baggage tag. The checked in baggage bearing number SQ.203230 relating to the detenu ticket was identified. When he was enquired by the officers as to whether he was in possession of Ketamine Hydrochloride, he replied in the negative. Then, there arose a necessity to open the baggage and make an inspection. He was taken to the Air Intelligence Unit room. The baggage was opened in the presence of two independent witnesses. It was found to contain Ketamine Hydrochloride in 25 pockets weighing 24.451 kgs. He was questioned whether he has any permission or document for possession or to export the same, but he replied in the negative. He has also not obtained no objection certificate from the Narcotic Commissioner, Central Bureau of Narcotics for exporting. When it was found that it was liable to be confiscated under the Customs Act, 1962, it was seized under a cover of mahazar as contemplated under the Customs Act 1962. He came forward to give confession statement and the same was also recorded. The detenu was produced before the Court of Additional Chief Metropolitan Magistrate, E.O. II, Egmore, where he applied for bail and the same was rejected. The value of the seized Ketamine Hydrochloride was fixed at Rs.8,55,785/-. He made a representation which was found to be baseless and devoid of merits and hence, the same was rejected. The State Government on being satisfied that in view of the facts and circumstances it was necessary to detain him under the provisions of COFEPOSA Act 1974 in order to prevent him from indulging in smuggling activities in future, passed an order of detention which is the subject matter of challenge before this Court.
4. Advancing the arguments on behalf of the petitioner, learned counsel brought to the notice of the Court the following points.
(a) Firstly, a perusal of the order would clearly indicate that at the time of seizure, three samples each weighing 5 gms was taken and they were sent for analysis. Learned counsel took the Court to page Nos.122 and 123 of the booklet wherein the report of the Analyst was attached and it was found that the weight of the samples was shown as 26.5. gms, 34.2 gms. and 24.2 gms and at the time of returning the same, its weight was shown as 20.1 gms., 26.6 gms. and 19.7. gms. respectively. Commenting on the same, learned counsel would submit, if really 5 gms was taken as sample the quantity which was received by the department could not be shown as found in the certificate. Thus, it would be clear that what was actually taken by the analyst was not the one that was sent by the authorities, which according to them, was seized.
(b) Secondly, the value of the seized goods viz., Ketamine Hydrochloride was shown as Rs.8,55,785/-. How the said figure was arrived or the goods was valued remains unknown.
(c) Thirdly, the department relied on notification No.67 of 2007 dated 27.12.2007 and has also pointed out that in view of that notification though Ketamine Hydrochloride was not in the schedule attached to the Narcotic Drugs and Psychotrotic Substances Act, no objection certificate should have been received from the Commissioner of Narcotic but it was not obtained in this case. When the said document namely, the Notification No.67/2007 was relied on by the department, a copy of the same should have been supplied to the detenu but not done.
(d) Lastly, accordingly to the department, the detenu was found in possession of the contraband on 17.7.2008 at the airport and the same was seized on the same day and he was sent for judicial remand. He filed bail application on 28.7.2008 and the same was also pending. While the bail application filed was pending before the Court, the authorities should not have observed in the order that "the State Government was aware that you have filed a petition for bail and the same is pending before the Court. In view of the facts and circumstances set out above, the State Government are satisfied that there was real possibility of you coming out on bail....". Thus, when the bail application was pending, the detaining authority namely the State Government has taken its own view that there is real possibility of the detenu coming out on bail and hence, it is a premature one. Under such circumstances, the order would suffer on that ground also.
5. Heard the learned counsel for the State on the above contentions.
6. The factual position as recorded above was that when the petitioner boarded the flight to Singapore, the department entertained suspicion and he was intercepted. Then, the checked in baggage was actually opened in the presence of witnesses and found to contain Ketamine Hydrochloride and the same was seized under a cover mahazar and the same was weighed and found to be 24.451kgs and it is also valued at Rs.8,55,785/-. In notification No.67/2007 the said contraband was not one of the scheduled items annexed to the Narcotic Drugs and Psychotrotic Substances Act but as per the notification dated 67/2007 dated 27.12.2007, the detenu should have obtained a certificate from the Narcotic Commissioner of India but he has not done so. Under such circumstances, he was not only to be prosecution under the provisions of Customs Act but the State Government thought it fit, in order to prevent him from indulging in such activities in future, it has became necessary to invoke the provisions of COFEPOSA Act and detain him, accordingly, the order of detention came to be passed.
7. The grounds of attack on which the order under challenge was assailed were put forth by the learned counsel for the petitioner as stated above.
8. The learned counsel for the department took the Court to page No.123 where the analyst has found the weight of the samples along with the plastic cover when it was received, was shown as 26.2 gms, 34.2 gms and 24.2 gms and at the time of return it was shown as 20.1 gms., 26.6 gms and 19.7 gms. Therefore, what was taken as sample for analysis was 5 gms as pointed out by the department. Thus, the contention of the learned counsel for the petitioner do not carry any merit and it is liable to be rejected and the same is rejected accordingly.
9. As far as the valuation of the seized goods is concerned, the same was valued at Rs.8,55,785/- but nowhere it is stated in the order that the value was fixed either taking into account the market value or taking into account the internet value and it has to be taken as fixed by the department. So long as the value is not fixed on a particular document or any source and the copy of the same was not supplied to the detenu, it is evident by the the order that the valuation was not fixed by the authorities on there own calculation since nowhere it was stated in the order that it was valued taking into account the market value or the internet value. Even assuming for a moment that the valuation was randomly fixed, it cannot be a ground so long as it is not relied upon by any document or any source that it has been fixed by the authorities. Thus, this ground also would raise to ground.
10. In so far as the third ground that notification No.67/2007, relied on document, was not supplied to the detenu as required in law is concerned, the Court is able to see sufficient force in the contention of the learned counsel for the petitioner. The contraband Ketamine Hydrochloride which alleged to have been smuggled by the detenu is one of the item not including in the schedule annexed to the Narcotic Drugs and Psychotrotic Substance Act. It is also admitted that no objection certificate was not obtained from the Commissioner of Narcotics. It was one of the fact which led the authorities to pass the order. It is not in dispute that it was one of the relied on document by the State Government. If to be so, the law would require that the copy of the said notification should have been served upon the detenu but not done so. Under such circumstances, it has to be stated that the detention order in that regard is infirm.
11. So far as the bail application is concerned, it is also admitted, as could be seen from the order under challenge, that the bail application was filed on 28.7.2008 and the same was also pending but when the detention order came to be passed it is stated therein that there is likelihood of the detenu coming out on bail while the bail application was pending before the court of law. Thus, it is highly premature for the authority to state that there was likelihood of the petitioner coming out on bail. Such observation was without any basis or material whatsoever. Thus, it could be stated that it is only an expression of apprehension in the mind of the authority. Though the Court is unable to agree with the petitioner's case in so far as the first and second grounds are concerned, the Court has to agree with the third and fourth grounds and on those grounds, the petitioner is entitled to have to order of detention set aside.
12. Accordingly, this habeas corpus petition is allowed setting aside the order of the first respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
vsi To
1. The Secretary to the Government, Public (SC) Department, Fort St.George, Chennai 600 009.
2. The Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA- Unit), Central Economic Intellegence Bureau, Janpath Bhavan, 'B' Wing, 6thFloor, Janpath, New Delhi.
3. The Superintendent of Central Prison, Central Prison, Puzhal, Chennai 600 066