AI Structured Summary
Not yet generated for this judgment
Judgment
V.S. Sirpurkar, J.—An order passed by the first respondent, dated 22-05-2003, under the provisions of Sec. 3(1)(i) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short ''COFEPOSA''), directing the preventive detention of one A.T.
Maideen, son of A.L. Ahmed Thambi,, with a view to prevent him from smuggling the goods in future is in challenge in this habeas corpus petition.
Upon the intelligence information, the officers of the Directorate of Revenue Intelligence (DRI) came to know that red sanders (prohibited
wood) were being exported as popcorn maize under Shipping Bill NO.1585090 dated 25-4-2003 filed in the name of M/s. Vatchala Enterprises
and that the detenu and one Abdul Lasa were concerned in the said illicit export. The DRI officials located the said container covered by the
aforesaid shipping bill, which was loaded on the trailer inside the Container Terminal at the Chennai Harbour on 26-4-2003 and detained the
same.
2 .1. The said container was examined at Bharathi Dock Yard of Chennai Harbour in presence of the independent witnesses and also in the
presence of R. Adhikesavan, Proprietor of M/s. Vatchala Enterprises, Chennai and Custom House Agent (CHA), M/s. Fame Shipping Agency,
Chennai, S. Chengalvarayan, owner-cum-driver of the concerned trailer, B. Lenin of Container Agent M/s. Goodrich Maritime, Chennai as also
one Balaji, Manager of Numbal A.S. Shipping Agencies (P) Limited, B. Prabhakar, Forestor, Forest Protection Squad , Chennai and the officers
of the Customs Department.
2.3. As per the shipping bill, the name of the consignee was mentioned to be M/s. Golden Global Impex Pte. Ltd. at Singapore and the declared
consignment was 400 bags of popcorn maize, weighing 25 Kgs. each. It was also found that the container was cleared by the Customs at Numbal
CFS on 26-4-2003 and despatched and the consignment arrived Chennai Harbour by an identified trailer.
2.4. It was found on the examination, though the Customs seal and the seal of M/s. Goodrich Maritime were found intact, one of the latches of the
container was found to be tampered and on further examination of the container by cutting open the seals, it was found to contain 205 gunny bags
containing reddish wooden logs of different sizes and some popcorn maize spilled on the floor of the container. The reddish wooden logs were
confirmed as being red sanders.
2.5. An investigation began on this. Thiru Adhikesavan, Proprietor of M/s.Vatchala Enterprises, Chennai and the Customs House Agent stated that
he was not the actual owner of the goods and he had lent his company''s name and the IMPEX Code for the export of popcorn maize for
monetary consideration and that one Thiru Kaleel had approached him and mediated for the said export. The owner of the trailer had stated during
the investigation that Abdul Lasa had met him at Numbal CFS and paid Rs.1,000/- towards diesel expenses for the transport of export-cargo from
Numbal CFS to Chennai Port and the balance amount would be paid by the detenu, who was the owner of the consignment.
2.6. These red sanders, weighing about 10.475 MTs., were seized by the officers of DRI under a mahazar as the same were prohibited items for
export. They were re-packed and kept in the same container. The logs were thereafter handed over the authority for safe custody. The broken
lock and the Goodrich Seal were also seized.
2.7. The residential premises of the detenu were searched on 27-4-2003 and during the search, it was found that a sum of Rs.8,00,000/- in Indian
Currency was kept inside the cupboard in the bedroom. It was stated in the presence of some independent witnesses by the detenu that this
amount was part of the sale proceeds of the red sanders consignment exported under the guise of export of Popcorn Maize in March 2003. That
amount was seized. The office premises were also searched by the DRI officials in presence of the independent witnesses as also in presence of
Abdul Lasa, Manager of M/s.Genexpo Trading (P) Ltd., Chennai and during the search two keys were found. Abdul Lasa stated that the keys
were of the godowns at Puzhal where the declared export cargo, viz. Popcorn Maize was destuffed and the red sanders were stuffed in the above
said container. The keys were also seized.
2.8. The godown at Ambattur was identified by Abdul Lasa and that was also searched wherein 400 gunny bags were found containing popcorn
maize. On enquiry, Abdul Lasa informed that the said gunny bags were the declared cargo of the above said shipping bill, which were removed on
the previous day from the container and substituted by the red sanders, which were earlier available in the godown.
2.9. The owner of the trailer gave a statement that at the instance of one Khan Bhai one empty container was transported from Sanco CFS to
Numbal CFS in his trailer and on 26-4-2003 popcorn maize was loaded whereupon Abdul Lasa came there and gave Rs.1,000/- to Khan Bhai
for diesel expenses and that when the container was being moved to Chennai Harbour, a lean, black and medium height person also came in the
trailer, which was driven by Khan Bhai, and at the instance of the said person, the trailer was stopped near Kolathur Double Lake on the Puzhal
road and thereafter they went for food and when they returned back, the trailer was not there and after half-an-hour another driver brought the
trailer and then they reached the Chennai Harbour. When he asked Abdul Lasa for the balance amount, he was informed that the goods belonged
to the detenu and that the detenu would pay the balance.
2.10 The authorities got the clue from the statement of Adhikesavan that he had lent his company''s name and the IMPEX Code for a monetary
consideration of Rs.5,000/- to one Khaleel at the instance of one Arokiasamy, a broker and as per the arrangement, it was decided to send an
empty container to Numbal CFS with a clerk; that Khaleel''s company would bring the procorn maize for stuffing at Numbal CFS; M/s. Fame
would handle the CHA work and their clerk would take up the processing of papers and stuffing of container at the CFS and would be there till
the container was stuffed and sealed and all paper work completed and thereafter the stuffed container would be handed over to the transporter
arranged by Khaleel, who would take care of the transportation of the container to the Port and all other export work relating to the said container.
As per this arrangement, on 19-3-2003, they filed a shipping bill, bearing No.1570116 in the name of M/s. Vatchala Enterprises for the export of
a consignment of popcorn maize to Singapore. Adhikesavan further stated that though the name of his company, M/s. Vatchala Enterprises was to
be found in the bill, he was not in any way concerned with the seized consignment and that he had only lent his company''s name and the IMPEX
Code for the monetary consideration to Khaleel.
2.11. The detenu himself had made a statement that he was doing the export-import business from the year 1993, exporting goods to Singapore,
Malaysia and other countries and that for the past two years he had been exporting Agarbathis, onion, steel goods in the name of M/s.Genexpo
Trading Company. He further owned up that the goods in the said container were red sanders, which were stuffed in the said container and that he
got a message from Khaleel that on the morning of 26-4-2003, popcorn maize was loaded into the container at Numbal CFS and was cleared. It
was owned up by the detenu that he asked Abdul Lasa to wait near Kolathur Double Lake and on arrival of the trailer with the stuffed container,
he was to exchange the goods therein as told by Khaleel and after exchanging the goods, the detenu was also informed by Lasa. The DRI officials
further came to know from the statement of the detenu that Khaleel was a trader in foreign goods at the Burma Bazaar and Chennai Airport and
that he owns a shop in Burma Bazaar, Chennai and that about a month back, Khaleel had approached him to introduce the party having red
sanders as he would arrange for the export of the same, which the detenu had accepted and arranged a party called Mathi, who had the red
sanders. He also accepted to have taken Rs.50,000/- from Ganesan and it was at the instance of Khaleel that the further deals were arranged. It
was also owned up in the statement that Rs.8,00,000/-, representing the sale proceeds of the red sanders sent by him in March, 2003 and that
popcorn maize loaded into the container was procured by Khaleel; that Abdul Lasa was working in his company and that he attended his office
work as per his instructions.
2.12. In short, it was owned up by the detenu that he was deeply involved in smuggling out the prohibited goods like red sanders and that he had
done it systematically by tampering with the Customs seals and that he was benefited in that. From the other materials, the authorities came to the
conclusion that the detenu was knowingly involved in the whole racket and that he had committed the offences under the Customs Act.
2.13. The detenu as well as Abdul Lasa were arrested on 27-4-2003 and were remanded to the judicial custody. They were also being
proceeded against on the criminal charges. It was on this basis that the above mentioned detention order came to be clamped against the detenu.
Shri Jabbar, learned counsel appearing for the detenu/petitioner, painstakingly took us through the grounds of detention as also the other allied
records.
3.1. The first contention of Shri Jabbar is that there is non-application of mind on the part of the detaining authority and for this, it was pointed out
by him that in paragraphs (xxiii) to (xxv) of the grounds of detention, bail applications and some other documents were relied upon to suggest that
in these bail applications, the detenu had claimed to be an innocent and that his statement was obtained by coercion. Learned counsel then drew
our attention to paragraph (xxv) and pointed out that a statement was made therein that on 12-5-2003 a petition for extension of remand was filed
before the Magistrate. However, the detenu was not produced as it was stated in the letter by the jail authorities that the detenu was admitted in
the hospital and, therefore, the Magistrate directed to produce the detenu on 14-5-2003. The complaint of the learned counsel against this is that
the detaining authority, though had noted that the detenu was admitted in the hospital, did not note the fact that between 12-5-2003 and 14-5-
2003, the detenu was not in the custody of the jail authorities. Learned counsel further points out that the remand was then extended on 14-5-
2003 till 28-5-2003 and it was during this period that the detention order came to be passed on 22-5-2003. According to the learned counsel, it
was incumbent upon the detaining authority to note that between 12-5-2003 and 14-5-2003, the detenu was not in the jail custody and he was not
produced and, therefore, the order passed shows non-consideration of a vital fact that at the time when the detention order was passed, the detenu
was in the hospital.
3.2. In our opinion, this contention is completely incorrect. In the first place, the contention that the detenu was not in the jail but was in the hospital
as he was admitted as an indoor patient and, therefore, he could not be deemed to be an inmate of the jail is itself incorrect. We are satisfied from
the documents on record that since the detenu was not well, he was sent to the hospital and admitted as an indoor patient in the hospital, a ward of
which is itself treated as a jail. That is the argument of the learned Public Prosecutor, which has really not been controverted seriously by the
learned counsel for the petitioner. This is apart from the fact that even this was not so yet, if the detenu was admitted as an indoor patient in the
hospital at the instance of the jail authorities, he would always be deemed to be in the jail custody even if physically he was not inside the jail
premises. In our opinion, the non-mentioning of the fact in the grounds that the detenu was admitted in the hospital as an indoor patient would not
make any difference. All that the detaining authority has to know is whether the detenu was in the ''jail custody''. There is no dispute that the detenu
herein was in the custody of the jail authorities by a valid remand. We, therefore, do not think that there was any error or non-application of mind
on any count. The first contention is, therefore, rejected.
Learned counsel secondly urged that the detenu did not have any working knowledge in English and the translations of the English documents 12
to 14 at pages 138 to 141 of the paper-book were not supplied to him and that when they were supplied, it was beyond representation on the
basis of those documents. This is apart from the fact that those documents are neither ''relied upon'' documents nor ''referred to'' documents.
Therefore, when it is admitted by the learned counsel that ultimately the translations of those documents were supplied, though a little later, we do
not see any prejudice to the detenu or for that matter, any infraction of any rule or right of the detenu. The second contention is, therefore, rejected.
The further contention is that the detention was for the purpose of preventing the detenu from smuggling the goods in future whereas, from the
grounds all that it could be said was that he had abetted in smuggling the goods. Learned counsel invited our attention to the language of Sec. 3(1)
(i) of COFEPOSA wherefrom, according to the learned counsel, it appears that ''smuggling goods'' was different from ''abetting'' of the smuggling
of goods. He, therefore, suggests that there has been non-application of mind on the part of the detaining authority.
5.1. The argument is wholly incorrect because in paragraph 2, the authority has stated that the State Government are satisfied that the detenu had
''indulged in smuggling goods''. We have deliberately given the facts in details to show that it was clear to the detaining authority from the material
that the detenu had not merely abetted smuggling but, he was himself a party to the smuggling racket and had thus smuggled the goods.
5.2. Under Sec. 2(39) of the Customs Act, ''smuggling'' is defined as under:
smuggling, in relation to any goods, means any act or omission which will render such goods liable to confiscation u/s 111 or section 113
Sec. 2(e) COFEPOSA defines ''smuggling'' as follows:
smuggling has the same meaning as in clause (39) of section 2 of the Customs Act, 1962 and all its grammatical variations and cognate
expressions shall be construed accordingly
Therefore, it is obvious that the detenu was engaged in an act, in relation to the goods which rendered such goods liable for confiscation. The
authorities have in the grounds specifically stated that the goods, which the detenu was trying to smuggle out of India, were liable for confiscation.
This is apart from the fact that abetment of smuggling is not by itself made an offence under the Customs Act. It is clear from the grounds and more
particularly ground (xxvi) that goods which were dealt with by the detenu were liable for confiscation. The authorities have clearly mentioned that
the accused had committed an offence under Sec. 114 read with Sec. 135 of the Customs Act. We, therefore, do not think that there was anything
wrong in the detaining authority saying that the accused had committed the act of smuggling and that it was necessary to clamp the preventive
detention for preventing him from smuggling the goods. The contention is, therefore, rejected.
Learned counsel further took us to the detenu''s representation dated 2-6-2003 and pointed out that he had sought certain documents, including
the shipping documents and the subsequent documents. Our attention was invited to paragraph 7(iv) wherein, the detenu had sought copies of all
the export documents relating to the export referred to in that paragraph. It is the argument of the learned counsel that in his representation, the
detenu had stated that in the grounds of detention, it was noted that he had involved in illicit export of prohibited items on earlier occasions in a
similar manner and, therefore, he had sought the export documents relating to the said previous shipments. It is also pointed out that even the
subsequent documents, which include the shipping documents, were sought for in this representation. Learned counsel says that these documents
not having been supplied to him there was a breach of the right on the part of the detenu.
6.1. In the first place, these documents were never ''relied upon'' or even ''referred to'' in the grounds. Secondly, the petitioner in his representation
had never specifically asked any specific documents. A round about request by generally referring to some documents would be of no
consequence and would not entail any liability on the part of the detaining authority or the State Government to supply the documents. We are
completely convinced that the contention has no merits. It is, therefore, rejected. The so-called shipping bills, etc., in our opinion, were completely
irrelevant.
6.2. Learned counsel tried to buttress his contention further by saying that two statements of Arokiasamy were supplied to him and from those
statements, it was clear that the petitioner had no direct hand in the smuggling. Arokiasamy''s statement is undoubtedly a referred to document. Mr.
Jabbar wanted us to note from the statements of Arokiasamy that it was essential that the documents sought for by the detenu in his representation
were bound to be supplied to him. In spite of going through both the statements, we do not find any relevance. Nor do we see any necessity to
supply to the detenu the documents which were not even properly or specifically mentioned in the representation.
The next contention raised by the learned counsel is that these two statements of Arokiasamy dated 12-6-2003 and 10-7-2003 were not put
before the Advisory Board. It was pointed out by the learned counsel that the Advisory Board had met on 15-7-2003 and, therefore, the
statements of Arokiasamy, which were recorded by the Customs authorities were bound to be placed before the Advisory Board. We do not see
how Arokiasamy''s statements, which were recorded during the further investigation, would in any manner become relevant documents to the
detention of the detenu. The argument is undoubtedly based on the decision of this Court in K.V. Jesudasan v. State of Tamil Nadu 1989
Cri.L.J.637 in which the Division Bench of this Court held that even if a document comes into existence after the detention order, if it has some
relevance to the detention, it should necessarily be placed before the Advisory Board. Even applying this test, we do not see as to how the
statements of Arokiasamy are in any way relevant to the subject of detention. We have gone through the statements ourselves. There is nothing in
those statements to suggest that the earlier allegations made against the petitioner were falsified in any manner. We, therefore, do not think that this
contention can be accepted. The contention is, therefore, rejected.
Learned counsel further contended that the State Government failed to send the relied upon documents to the Central Government along with
its'' report under Sec. 3 of the COFEPOSA and, therefore, the Central Government was handicapped while deciding the same.
8.1. Learned Central Government Standing Counsel invites our attention to the counters of the State Government and the Central Government. In
paragraph 17 of the counter filed by the State Government, it is specifically pointed out that the copies of the detention order and the grounds of
detention were sent to the Central Government as per the provisions of COFEPOSA by speed post. The grounds of detention would mean also
the materials in support of the grounds. That is precisely the import. Even from the counter of the Central Government, it can be said that the
Central Government had considered the whole records sent by the State Government. If this is so, there can be no question of accepting the
argument that the necessary material documents supporting the grounds were not sent by the State Government. We would not, therefore, attach
any importance to this argument and would choose to reject the same.
Lastly, learned counsel suggested that in this case, the last document is dated 22-5-2003 while the detention order is also dated 22-5-2003
and, therefore, it was clear that the document dated 22-5-2003 was added only subsequently after the detention order was passed. Learned
counsel relied on the decision in Sadiq Batcha v. The Deputy Secreatary to Government of Tamil Nadu, 1989 L.W. Crl. 379. In that case, there
was a clear finding that the corresponding documents were added in the grounds of detention after the detention order was passed by the
competent authority. There can be no question that such exercise is not possible. However, we do not see anything there in the pleadings or in the
records to suggest that such a thing has happened. Merely because the last document is dated 22-5-2003, it does not mean that the same came to
be added only after the detention order was passed and not before it.
We do not see any merit in the matter. The writ petition is, therefore, dismissed.