K. Sethuraman and Another vs The Government of Tamil Nadu

Gokulakrishnan, J.—W.P. 3043 of 1983 is filed by one K. Sethuraman for the issue of writ of habeas corpus or any other appropriate writ directing the Respondent therein to produce the Petitioner before this Court and to release him from detention.

W.P. 3044 of 1983 is filed by S.C. Gopalan for the issue of a writ of habeas corpus or any other appropriate writ directing the Respondent therein the produce the Petitioner before this Court and to release him from detention.

The short facts which are common to both the writ petitions are as follows: Acting on information, officers of the Madras Customs House were keeping surveillance near the junction of Sowbagya Avenue and Pondicherry Road in Kottur, Madras 85. On 16th September, 1982 at about 2:50 p.m., the officers noticed one Ambassador taxi bearing Registration No. TMW 9329 coming and halting in front of door No. 3, Sowbagya Avenue, Kottur, Madras 85. They also noticed Sethuraman, one of the detenues, occupying the taxi along with the taxi driver and taking out two cardboard cartoons from the dicky of the said taxi and entering the aforesaid premises Door No. 3, Sowbhagya Avenue. The two cardboard cartoons each carried by the detenu Sethuraman and the driver were received by Gopalan, the detenu in W.P. No. 2044 of 1983 who is the occupant of the said house. The detenue in both the writ petitions along with the driver were intercepted by the Customs officers when they were in possession of those two cartons. In the presence of independent witnesses the two cartons were opened and examined and seizure lists were prepared. The signatures of the detenus were taken in the search lists and statements were also obtained from them and also from one S. Rajendran. The said two cartons were marked as carton I and carton II for the purpose of identification. On examination they were found to contain various goods of foreign origin such as watch movements, tape recorder heads, integrated circuits and players stylus along with one envelope captioned ''PAT'' containing some bills. There were as many as 11 items in carton I and 112 items in carton II valued in all at Rs. 8,78,000. On 16th September, 1982, statements were recorded from the detenus and they were produced before the Additional Chief Metropolitan Magistrate, on 17th September,- 1982. The detenue Gopalan was released on bail along with others on 18th September, 1982. The detenu Sethuraman was released on bail on 22nd September, 1982.

On 19th September, 1982, Gopalan, the detenue in W.P. No. 3044 of 1983, wrote a letter to the Collector of Customs retracting his statement. In that letter, he has stated that he was not aware of the exact contents of the statements made by him to the Customs officers, since he was in an agitated mood. He has also mentioned in that letter that such a statement was obtained against his will and under pressure from the officers to suit their case. On 23rd September, 1982, Sethuraman the detenue in W.P. 3043 of 1983 retracted his confession. In that letter he has stated that he was arrested by the Customs officials on 16th September, 1982, that the Customs Officials obtained a statement from him by force, that the Customs officials ill-treated him and forced him to write a statement and that the statement given by him was not voluntary. On 6th October, 1982, Sethuraman wrote another letter to the Collector of Customs wherein he has stated as follows-

Some articles have been seized by your department in the above mentioned case. Your department has proceeded against me on the allegation that I am knowingly concerned with the alleged contraband goods. I understand that the goods seized in connection with the above mentioned cases are not liable for confiscation under the Customs Act. The goods are covered by bills and are all of Indian origin.

I submit that a statement had been obtained from me by your department officials by force and pressure. I have already sent you a letter about this. I request you to kindly enquire into the matter and take appropriate action and render justice to me.

On 10th October, 1982, one Shah Parasmal sent a telegram to the Collector of Customs, Madras, alleging that his department has seized goods in O.S. 792 of 1982. as if they are contraband goods and that the said Shah Parasmal is having records to prove that they are not contraband goods and those articles are the absolute properties of the said Shah Parasmal. On 6th October, 1982 the detenu Sethuraman has written a letter to the Joint Secretary Public (SO Government of Tamil Nadu, Madras, specifically stating that the goods seized are not liable for confiscation under the Customs Act and they are all covered by bills and are of Indian origin. On 19th November, 1982, the aforesaid Sethuraman wrote another letter to the Collector of Customs, Madras, wherein he referred to his letters, dated 23rd September, 1982 and 6th October, 1982, and also mentioned that such type of goods are easily available in the market, that those goods are not notified under Chapter IV A, that as such no formalities are necessary to possess those goods and that those are not contraband goods. On 28th December, 1982 the detenu Sethuraman has sent a letter to the Chief Secretary to the Government of Tamil Nadu. In that letter he has referred to the previous letters sent by him to the Customs officials and to the heads of other departments and stated that the goods seized from him are goods which are freely available in the market and that they are not contraband goods. There is also a specific averment in that letter to the following effect:

Now I reliably understand that one Mr. M.N. Thakkar of Vipul Apartment, Block No. 23. R.P. Road. Bombay 80, has sold to Parasmal the alleged goods which he has purchased from the Customs department. I am enclosing photostat copies of the bills and delivery notes to prove my claim. These goods have been seized by the customs department.

I am afraid that I may be detained under the COPEPOSA Act, although I have not contravened the provisions of the said Act.

In view of the above facts and circumstances and in view of the fact that the goods involved are not contraband goods, I request that I may be exonerated from the above charges and justice may kindly be rendered.

It is subsequent to all the above correspondence that orders of detention were passed on 23rd February, 1983.

Mr. Natarajan, learned Counsel for the Petitioners in both the writ petitions submitted that in respect of the very same goods alleged to be contraband goods, both the detenus are sought to be detained under the COPEPOSA Act. The learned Counsel further submitted that the material facts which are necessary to come to a conclusion as to whether the detenus in these cases have to be detained under the COFEPOSA Act have not been placed before the detaining authority and that as such the orders of detention are vitiated. The learned Counsel particularly drew the attention of this Court to the letter sent by Sethuraman, the detenu in W.P. 3043 of 1983, and submitted that, the detaining authority has not properly considered the said letter and the bills sent along with it. which will conclusively prove that the goods seized from the detenus are not contraband goods but they are goods purchased at Bombay under valid bills. The learned Counsel also submitted that a mere reference to those documents will not absolve the authorities from the responsibility of discussing those documents and that the failure to consider those documents in the proper perspective has vitiated the whole detention orders.

On the other hand, Mr. Rajamanickam, learned Public Prosecutor, took us through the counter-affidavits and submitted that it has been specifically mentioned in the counter affidavits that the letter, dated 20th December, 1982 , has been taken into consideration and that the photostat copies of the bills sent along with the said letter have also been taken into consideration by the detaining authority. The learned Public Prosecutor further submitted that this Court cannot substitute its decision for the subjective satisfaction arrived at by the detaining authority and the very fact that the detaining authority has taken into consideration all the documents necessary to arrive at a conclusion is sufficient to uphold the validity of the orders of detention.

Mr. Natarajan, learned Counsel for the detenus, in his submission also referred to the counter affidavits filed by one Naresh Gupta, Joint Secretary to Government, Public (SC) (Land O-D) Department Fort St. George, Madras, and submitted that the said Naresh Gupta is not the detaining authority who can effectively refute the allegations made in the affidavits filed in support of the writ petitions. The learned Counsel submitted that he is not disputing the power of this particular Joint Secretary to file a counter affidavit but only questioning as to how far he can deny the allegations which are in the exclusive knowledge of the particular detaining authority who has applied his mind. He also submitted that definitely and admittedly the detaining authority is not the person who has sworn to the present counter affidavits.

Mr. Rajamanickam, learned Public Prosecutor, referring to certain decisions, submitted that under the Business Rules which are framed by virtue of Article 166 of the Constitution, the present Joint Secretary who has sworn to the counter affidavits has authority to do so and it is binding upon the Petitioners herein.

We have carefully gone through the documents and also the detention orders passed in both these cases. It is needless to say that if we come to the conclusion that the goods seized are not contraband goods or that it has not been found that they are contraband goods, the fact that the detenu Gopalan has sent a letter like the one sent by the detenu Sethuraman on 28th December, 1982 will not in any way affect the merits of the case. When once it is found that the goods seized are the goods got under a valid purchase, as alleged in the letter, dated 28th December, 1982, sent by detenu Sethuraman to the Chief Secretary, there remains nothing to fasten the liability on the detenu Gopalan. as if he was in possession of contraband goods. It is clear from the detention orders that the detaining authority considered Shah Parasmal as a co-conspirator with the detenu Sethuraman. In the detention orders in respect of both the detenus we are able to find only a reference to the various letters mentioned by us in paragraphs supra and there is absolutely no discussion about the same. The relevant and vital document which in our opinion would have definitely made the detaining authority to form an opinion one way or the other, is the letter, dated 28th December, 1982, sent by detenu Sethuraman to the Chief Secretary to the Government of Tamil Nadu, enclosing photostat copies of the bills to prove that the goods are the goods validly purchased from the customs department. There is absolutely nothing in the detention orders to show that the detaining authority has applied his mind to this vital document.

Mr. Rajamanickam, learned Public Prosecutor, pointing out the counter affidavits filed by Naresh Gupta, submitted that there is an averment therein to the effect that the detaining authority considered the letter sent by the detenu Sethuraman, dated 28th December, 1982, and that the bills sent along with the said letter did not spell out that they related to the goods seized. As correctly put forth by the learned Counsel Mr. Natarajan appearing for the detenu, the counter affidavits sworn to by the Chief Secretary, who is not the person who actually passed the orders of detention cannot speak to this aspect of the case, when the orders of detention themselves lack the said particulars in the body of the order. The said Joint Secretary cannot speak to a thing which can be only within the exclusive knowledge of the person who actually passed the orders of detention and as such we are not able to attach any importance to this averment made in the counter-affidavit. There is absolutely no quarrel about such counter-affidavit being filed by present Joint Secretary as per the Business Rules. But the contention that he can also speak to the fact which is in the exclusive knowledge of the person who actually passed the orders of detention cannot be countenanced.

In as much as we have held that an important and vital document has not been considered by the detaining authority, we can usefully refer to the decision of the Supreme Court in Ahmadevi v. K. Shivaraj, AIR 1979 S.C. 447: 1979 L.W. (Cri ) (S.C.) 47 (S.N.), wherein the Supreme Court has categorically held that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before us are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal. In the instant case, the material and vital documents, such as, the enclosures to the letter, dated 28th December, 1982, have not been considered at all by the detaining authority.

In Mohmood Abubukar Marwari Vs. Union of India and others, a Beach of the Bombay High Court has observed as follows:

The requirement of law properly construed, therefore enjoins scanning of the entire material sifting the relevant from the irrelevant and drawing of conclusion spelling out the prejudicial activity, to prevent a person from engaging in which detention order is made. The only guarantee that the authority has in fact gone through this process and has not passed the order casually, is the record of his such conclusion. The satisfaction of the authority is to be based on such conclusion. The mere existence of material, however, weighty, will not by itself indicate that the authority had reached requisite satisfaction before passing the order.

On a reading of the detention orders in both the cases, we are clearly of the opinion that the detaining authority has not at all applied his mind by scanning through the relevant materials before he arrived at the subjective satisfaction.

Mr. Natarajan also cited the decision of the Supreme Court in Mohmood Abubukar Marwari Vs. Union of India and others, wherein the Supreme Court has deprecated the failure on the part of the detaining authority in filing a counter affidavit. In that case, the Supreme Court held that there was no proper explanation to rebut the allegations made by the detenu. On that ground alone, the Supreme Court set aside the detention order and released the detenu . The said decision will apply on all fours to the facts of the present case. The allegations in the affidavits filed in support of the writ petitions which are to be attributed to the exclusive knowledge of the detaining authority whoever it may be, have not been controverted by that person by appropriate counter affidavits. Even on this ground we are of the view that the orders of detention have to be set aside.

For all these reasons, we are of the view that the orders of detention are vitiated and accordingly they are set aside and the writ petitions are allowed; The detenus in both the writ petitions are directed to be set at liberty forthwith.