(Order of the Court is made by P.MURGESEN, J.) The petitioner, who is the father of the detenu, challenges the order of detention, dated 04.02.2009, passed by the second respondent against the detenu viz., Mani @ Estate Mani, under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974).
2. On 21/22.01.2009, the officers of Directorate of Revenue Intelligence (DRI), Thoothukudi, conducted search of the premises of M/s.Baywoods Exim, owned by the detenu in the presence of independent witnesses and in the presence of one Ramesh, In-charge of the said place and his assistant one Mariappan, based on specific intelligence to the effect that M/s.Baywoods Exim imports 'betel nuts' by misdeclaring the same as 'cashew nuts' in the import documents; that while moving the containers with the permission of customs under the guise of being taken to CWC CFS from Thoothukudi Port (import section), the same are taken to the premises of M/s.Baywood Exim, where the seals of the containers are break opened and the betel nut bags are unloaded from the containers and substituted with cashew nut bags and that the containers are then locked with the substituted duplicate seals kept in the company and taken to CFS for Customs examination after filing of Bill of Entry; that M/s.Baywoods Exim Firm is engaged in such evasion of duty in large scale, as higher import duty is levied for the import of betel nuts and no Customs Duty is levied for the import of cashew nuts.
3. During search, DRI officers found that a green colour cargo container No.CLHU-2233488 with one time lock MAERSK ML ID 054 9898, laden on container lorry KA-01-AC-5457 was about to start and leave the premises; that adjacent to the above said lorry, a lorry bearing Registration No.KA-01-B-2111 was found fully loaded with gunny bags containing betel nuts; that bags of betel nuts and bags of cashew nuts were stacked there on the floor; that on enquiry about the goods in the lorry and stacked on the floor, the said Ramesh informed that the betel nut bags loaded in the lorry were the betel nut bags unloaded from the container CLHU 2233488 after breaking open the seal of the container and that the betel nut bags stacked on the floor were the balance of the betel nuts off- loaded from the imported containers three days back and sent out in 8 lorries; that the cashew nut bags (raw cashew nuts) stacked on the floor were intended to be substituted in place of the betel nut bags from the import containers arriving today. During that time, another lorry bearing Registration No.TN-69-P- 9087, laden with container MSKU 2855042 and with one time lock MAERSK ML ID 0626929, driven by one Kumar, entered the said premises; that when the DRI officers broke open the seal of the aforesaid container, it was found stuffed with betel nut bags; that on enquiry, the said Ramesh, Mariappan and driver Kumar informed that the above said container, as per the orders of the detenu was brought to the above said place for exchange of the goods; that in all, 488 bags of betel nuts weighing 43.470 MTs. and 607 bags of raw cashew nuts weighing 43.490 MTs were found and the officers of DRI seized them under the provisions of the Customs Act, 1962 under a mahazar; that the officers also seized the container lorries and the two broken parts of the seal mentioned MAERSK ML ID 0626931 which were found near the container lorries.
4. After recording the statement given by the detenu and one Michael Charles Boopathy, the Manager of the said Firm and after observing formalities, the detention order was clamped on the detenu.
5. The learned Senior Counsel appearing for the petitioner raised the following grounds to set aside the detention order:-
(i) Non supply of retracted Confessional Statement of Michael Charles Boopathy vitates the detention proceedings.
(ii) Non supply of Phytosanitary Certificate affects the order of detentin; and
(iii) Furnishing of additional documents after the detention order would show that the detenu was not given due opportunity to give an effective representation, and that would vitiate the impugned order of detention;
6. The first ground is that Michel Charles Boopathy allegedly gave a confession statement before the Customs authorities. Thereafter, when he was produced before the learned Magistrate, he retracted the confession. So, there is a retracted confession and that document was not furnished to the detenu to make effective representation. In support of his contention, he relied on the decisions reported in 1988 (1) SCC 287 (State of U.P. v. Kamal Kishore Saini) and 2000 SCC (Cri) 1304 (A.Sowkath Ali v. Union of India and others) and argued that it is an obligation of the sponsoring authority to place all relevant documents before the detaining authority to form a subjective satisfaction, and non-placement of any such relevant documents vitiates the detention order.
7. The learned senior counsel has also relied on the decisions reported in 1990 SCC (Crl) 258 (M.Ahamedkutty v. Union of India and another); and 1999 SCC (Crl) 231 (Powanammal v. State of T.N. and another); and 2007 (1) MLJ (Crl) 1040 (Farzana Haji Sumar v. State of Tamil Nadu) for non supplying the documents. In Agamedkutty's case and also Pownammal's case, the Hon'ble Supreme Court has pointed out that 'whereas the non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because the non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order.'
8. In 2007 (1) MLJ (Crl) 1040 (cited supra), this court has held that the satisfaction arrived at by the detaining authority is defective and in any event, the detenu is prejudiced due to the non-supply of relevant documents for making effective representation and it vitiates the impugned detention order.
9. In a decision reported in 2009 (2) MLJ 245 (E.Raja v. State of Tamil Nadu), a Division Bench of this Court has held that non-furnishing of surrender petition and remand order will have an adverse effect on the right of detenu to make an effective representation as to any of the observations made in the remand order. In the above said case, the Division Bench after analysing the Judgments of a Full Bench of this Court reported in G.kalaiselvi v. State of Tamil Nadu (2007 (2) MLJ (Crl) 1841) and Powanammal's case, came to the conclusion that furnishing of remand warrant is an important document.
10. The learned Senior counsel would submit that Hon'ble Supreme Court has categorically held that bail application and bail order are vital documents and non-supply of the vital documents is a violation of
Article 22(5) of the Constitution of India.
11. According to the learned Senior Counsel, the alleged statement given by the said Michael Charles Boopathy is an admission and his subsequent retraction is a material to this case.
12. The learned Public prosecutor vehemently stressed that the statement given by the said Michael Charles Boopathy is not a confession and it is an exculpatory statement. In support of his contention, he relied on a decision reported in AIR 1952 SC 354 (Palvinder Kaur v. State of Punjab), wherein it has been held that "a confession must either admit in terms the offence, or at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. A statement which when read as a whole is of an exculpatory character and in which the prisoner denies his guilt is not a confession and cannot be used in evidence to prove his guilt."
13. In the above said case, the Hon'ble Supreme Court considered the confession statement of Palvinder dated 15.04.1950. In that case, One Jaspal Singh was fond of hunting as well as of photography. From hunting whatever skins (khalls), he brought home he became fond of colouring them. He also began to do the work of washing of photos out of eagerness. One day in December 1949 Jaspal Singh said to my cousin Mohinderpal Singh to get him material for washing photos. The said Mohinderpal Singh said to Harnam Singh, who is head clerk in Ballev Nagar Camp, to bring the same from the Cantt. Harnam Singh went to the Cantt. and on return said that the material for washing photos could be had only by a responsible Government Official. He told so to Mohinderpal Singh, who said that Harnam Singh should take his name and get the medicine. Thereupon, Harnam Singh went to the Cantt. and brought the medicine. As the medicine was sticking to the paper the wife of Jaspal Singh put it in water in a small bottle and kept it in the almirah. One day she placed the medicine bottle in the almirah, where medicine for washing photos had been placed. Her husband took that medicine by mistake and fell down.
14. In the case on hand, the statement given by the Michael Charles Boopathy is available at page 78 of the typed set of papers. A perusal of the said statement would show that he collected the EIR copy and handed it over to the said Ramesh and he was aware of the illegal transaction. Further he admitted that he assisted the detenu in CFS and he also handed over the documents.
15. His statement would show that he knew the offence and was actively took part along with the detenu. The learned senior counsel for the petitioner submitted that the statement of Michael Charles Boopathy is an admission and the said document was not supplied to the detenu. The statement of the Michael Charles Boopathy before the authorities would show that he was aware of the transaction and it can be treated as a confession statement. If it is considered as a confession statement, it should have been furnished to the detenu.
16. Learned Public Prosecutor would oppose the claim of the petitioner on the ground that the retracted statement is not a necessary document to be supplied to the detenu. In support of his contention, he relied on the decisions reported in 2006 (3) SCC (Cri) 270 (Vinod K. Chawla v. Union of India and others) and 1992 SCC (Cri) 1 (Abdul Sathar Ibrahim Manik v. Union of India) and stressed that the non supply of retraction statement of Michael Charles Boopathy will not vitiate the proceedings.
17. In 2006 (3) SCC (Cri) 270 (cited supra), the Hon'ble Supreme Court has held that law does not require that every document or material in possession of sponsoring authority must necessarily be placed before the detaining authority. This view has been followed in several decisions of this Court. In Abdul Sathar Ibrahim Manik v. Union of Inida, it was held as under:-
"12.(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority, it does not amount to suppression of relevant material. The question of non- application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody."
Hence, the Hon'ble Supreme Court was of the view in the above case that failure to supply the statement of the detenu's son will not vitiate the detention order.
18. In 1992 SCC (Cri) 1 (cited supra), the Hon'ble Supreme Court found that the documents, which are not relied on need not be considered and failure to supply them will not affect the detention. In the said decision, the Hon'ble Supreme Court has also considered the Judgment in M.Ahamedkutty v. Union of India reported in (1990 (2) SCC 1) and distinguished the said Judgment.
19. The learned Public Prosecutor relied on a decision reported in 2009 (2) SCC 612 (State of Andhra Pradesh v. M.Radha Krishna Murthy) and argued that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the act situation of the decision on which reliance is placed.
20. In this case, the detaining authority came to the conclusion that the confession of the Michael Charles Boopathy was one of the grounds to take suitable action against the detenu. The confession statement given by the said Michael Charles Boopathy would show that he assisted the detenu in his business and the statement of the said Michael Charles Boopathy was relied on and considered by the detaining authority. The said Michael Charles Boopathy gave a statement about the corrections made in the Phytosanitary Certificate.
Paragraph 4 of the detention order reads as follows:-
"While arriving at the subjective satisfaction to detain you under the conversation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into consideration all the facts and material referred to and relied upon in the grounds mentioned above and also the statements, bail petitions and mahazars."
21. So, it is seen that the detaining authority has considered the statement of the said Michael Charles Boopathy and also other documents and came to the conclusion about the detention. So, these documents are relied upon by the detaining authority to arrive at the subjective satisfaction. While these documents were relied on by them, such documents would have been furnished to the detenu. The failure of the detaining authority to supply the documents would affect the case of the prosecution and it would vitiate the order of detention.
22. Tested the case in the light of the above said decisions, we are of the considered view that the Judgment relied on by the learned Senior Counsel in 2009 (2) MLJ 245 (cited supra) is squarely applicable to this case, and the decision relied on by the learned Public Prosecutor as reported in 2009 (2) SCC 612 (cited supra) would not be applicable to the facts and circumstances of this case. So, the non supply of retracted confession of the Michael Charles Boopathy is a ground to set aside the detention.
23. The next ground urged by the learned Senior Counsel for the petitioner is that in spite of a specific request, the Phytosanitary certificate was not furnished and such action would vitiate the detention order. In support of his contention he relied on Kalaiselvi's case and a decision reported in 2008 (2) MLJ (Crl) 379 (Remya and another v. State of Tamil Nadu) wherein a Division Bench of this Court has held that 'when a document is relevant, refusal to supply a copy thereof, despite the detenu's request therefore, without valid reason, will vitiate the detention order.'
24. In this case, the Phytosanitary Certificate was relied on by the detaining authority and the document was sent to the expert opinion. It is the stand of the detaining authority that the documents were corrected to show as if "cashew nuts" were imported and not "betel nuts". Learned Public Prosecutor has also pointed out that a perusal of the documents would clearly show that the word "betel nuts" was erased and "cashew nuts" was substituted. The documents were sent to the expert opinion. So, it is a material document. The detenu also requested the said document. That was rejected, as immeterial one. Non furnishing of the copy of this document vitiates the order of detention.
25. The learned Senior Counsel for the petitioner submits that after the detention order was passed, a letter dated 17.04.2009 was sent to the detenu by the Secretary to Government stating that the following copies are sent to the detenu, as per direction of the Assistant Director, Directorate of Revenue Intelligence, Chennai:-
1) Copy of the mahazar dated 03.03.2009 drawn at CWC, CFS, Tuticorin for seizure of 362.160 Mts of Betel nuts imported by M/s.Baywoods Exim, Tuticorin in 20 containers declaring the description of the goods as raw cashew nuts;
2) Copy of the statement dated 24.03.2009 of Thiru K.Daniel, Manager- Customer Service, Maersk India (P) Ltd., Tuticorin. In this statements he has stated interalia about his presence during the examination and seizure proceedings under mahazars on 02.02.2009, 03.02.2009, 05.02.2009 and 04.03.2009, about the movement of the import containers at the instance of M/s.Baywoods Exim;
3) Copies of the request of M/s.Baywoods Exim, Tuticorin, Form B-1 Application of M/s.Maersk Line and application of Central Warehousing Corporation, Tuticorin, all addressed to the Customs, Tuticorin, for movement of import laden containers from PSA Sical to CWC, CFS, Tuticorin, in respect of 59 containers out of the 69 containers which were examined under mahazar on 05.02.2009 at CWC, Sical, Tuticorin;
4) Further notice dated 10.03.2009 for disposal of seized betel nuts;
5) Letter dated 24.03.2009 of M/s.Calileo Unggul Logistics, Indonesia, Interalia praying for stopping all further proceedings with regard to the disposal of their goods pursuant to notice dated 16.02.2009 and 10.03.2009; return of the goods to them; to pay the value of the cashew nuts found missing in 69 containers;
6) Reply dated 06.04.2009 sent to M/s.Galileo Unggul Logistics, Indonesia, for their above mentioned letter dated 24.03.2009;
7) Letter dated 01.04.2009 from Thiru Nita-Diah-Patuan, Indonesia, addressed to the Assistant Director, DRI, Tuticorin, regarding application to cancel or discontinue the process of selling the betel nuts and to re-route the seized perishable goods;
8) Reply dated 15.04.2009 for the above letter dated 01.04.2009 of Thiru Nita-Diah-Patuan, Indonesia.
26. Relying on the above said documents, the learned Senior Counsel for the petitioner has submitted that after the detention order, additional documents were furnished, from which it is clear that the detenu was not in a position to make effective representation to the detaining authority. In support of his contention, he relied on a decision reported in 1999 SCC (Crl) 299 (State of Tamil Nadu v. Senthil Kumar and another), wherein the Hon'ble Supreme Court has held that the manner in which the documents were served on the detenu did cause confusion to the detenu as he was kept in the dark about the purpose of furnishing the documents and far from giving him the earliest opportunity to make an effective representation, it deprived him of the chance of making a representation which resulted in infringement of the right guaranteed under
Article 22(5) of the Constitution of India.
27. In the light of the above said Judgment of the Hon'ble Supreme Court, we are of the view that the detenu was not in a position to give effective representation, as the additional documents were furnished following the detention order. Hence, on this ground also, the detention order is liable to be set aside.
28. The learned Senior Counsel for the petitioner raised a new ground that the remand report was not furnished to him. For this, he relied on a decision reported in 1992 Crl.L.J. 1927 (1) (K.P.M. BASHEER V. STATE OF KARNATAKA AND ANOTHER), wherein it has been held that legal plea can be raised before the court even though not specifically taken in memorandum of appeal.
29. For this, learned Public Prosecutor relied on a decision reported in 2007 (3) SCC (Crl) 439 (Mukesh Tikajo Bora v. Union of India and others) and argued that new ground cannot be raised at all.
30. The learned Public Prosecutor submitted that there is no pleading to this effect. So, he cannot raise such a new plea. To strengthen his case, he further relied on the decisions reported in 1972 SCC (Crl) 811 (Netaipada Shah v. The State of West Bengal); and 1973 SCC (Crl) 695 (Arun Kumar Sinha v. The State of West Bengal); and 1988 (1) SCC 296 (K.Aruna Kumari v. Government of Andhra Pradesh and others).
31. In 1972 SCC (Crl) 811 (cited supra), the Hon'ble Supreme Court has observed that in the absence of any averment in the petition, it cannot be raised.
32. In 1973 SCC (Crl) 695 (stated supra) also, the absence of pleadings was considered. In that case, the plea of FIR was not raised in the petition. So, the Hon'ble Supreme Court was of the view that such a plea cannot be raised subsequently.
33. Per contra, the learned Senior Counsel for the petitioner relied on the decisions reported in AIR 1980 SC 1983 (Icchu Devi v. Union of INdia); and 1987 SC 1977 (Mohinuddin v. District Magistrate, Beed and others); and 1992 Crl.L.J.1927 (cited supra).
34. In AIR 1980 SC 1983 (stated supra), the Hon'ble Supreme Court has held that in case of an application for a writ of habeas corpus, the practice evolved by Supreme Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail is sufficient to activise the court into examining the legality of detention. The Supreme Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention.
35. In 1987 SC 1977 (stated supra), it has been pointed out that it is not proper to disallow the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioners cannot be permitted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. It is well settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and inconformity not only with the mandatory provisions of the Act but also strictly in accordance with the constitutional safeguards embodied in Art.22(5).
36. The above said rulings would show that the pleadings need not be considered strictly in a writ of habeas corpus. Even in 2007 (3) SCC (Crl) 439 (cited supra), relied on by the learned Public Prosecutor the Hon'ble Supreme Court has held that though there can be no quarrel with the proposition that in some cases new grounds can be permitted to be urged. Hence, the petitioner is entitled to raise the new ground. The remand report was not furnished to the detenu which would also affect the detention.
37. The learned Public Prosecutor would vehemently oppose this petition on the ground that the detenu is an economic offender. So, he is not entitled to the relief in this petition. He relied on a decision reported in AIR 1982 SC 1 (Rattan Singh v. State of Punjab), wherein it has been held as follows:- "May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian Economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus.
Section 11 (1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention."
In the above case, even in case of a smuggler, the right of a detenu to make representation was pointed out.
38. On considering the rival submissions made by both sides and the Judgments relied on by the learned Senior Counsel and the learned Public Prosecutor, we are of the view that the valid documents were not furnished and the mandatory provisions were not followed. Hence, the detention order is liable to be set aside.
39. Accordingly, the order of detention passed in letter No.SR.1/097- 3/2009 dated 04.03.2009 by the first respondent is quashed. The Habeas Corpus Petition is allowed.
rj2 To
1. SECRETARY TO GOVERNMENT PUBLIC (SC) DEPARTMENT, SECRETARIAT, FORT ST.GEORGE, CHENNAI - 600 009
2. THE SECRETARY TO GOVT.,UNION OF INDIA,MINISTRY OF FINANCE. (DEPT.OF REVENUE) NEW DELHI, CENTRAL ECONOMIC INTELLIGENCE BUREAU,JANAPATH BHAVAN,B WING, 6TH FLOOR, JANAPATH BHAVAN, NEW DELHI 100 001
3. THE JOINT SECRETARY TO GOVERNMENT (PUBLIC LAW AND ORDER) FORT ST. GEORGE, CHENNAI 9
4. THE DEPUTY INSPECTOR GENERAL OF POLICE, CID, INTELLIGENCE, CHENNAI 4
5. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI
6. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI