Krishnamurthy Chettiar vs The Government of Tamil Nadu and another

A. Raman, J.—The detenu is the petitioner herein

An order of detention was passed on 14.9.1998 by the 1st respondent viz., the secretary to Government of Tamil Nadu, u/s 3(1)(i) of the

conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, on the ground that the petitioner has indulged in smuggling of

goods and that therefore, it is necessary to detain the petitioner under the provisions of the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, with a view to preventing him from indulging in smuggling of goods in future.

On 22.7.1998, the petitioner Thiru. Krishnamurthy Chettiar, who is a holder of Indian passport, arrived from Singapore by Singapore Airlines

Flight No.SQ 410 on 22.7.1998, with two hand baggage, one baggage with limited release tag, bearing No. SQ. 029093, and one baggage with

checked in tag bearing No.SQ 100683, and declared that he was not in possession of VCR/VCP/TV/Gold, and that he was only in possession of

goods with Rs.80,000 in the four baggages. Suspecting that the value of the goods brought by the petitioner may be more than what he declare,

the officer-in- charge, in the presence of witnesses, took him with the two hand baggages, and two baggages with tag bearing tag Nos. SQ

029093 and SQ 100683, to the AIR Intelligence unit Room and examined the green colour ""Flyway"" Zipper bag brought as hand baggage by the

petitioner. It was found to contain 13 Nos. of Pioneer KEH-P 8650 car Stereos along with its accessories including remote control and 8 Nos. of

Sanyo CLT-X6 cordless Phones with its accessories. The black colour zipper bag ""Flyway"" carried by the petitioner as handbag was examined

and it was found to contain 80 Nos. of Casio FX-100 scientific Calculators and 5 Nos. of Pioneer KEH-P 8650 Car Stereo along with its

accessories including remote control. The examination of black colour ""Flyway"" Zipper bag bearing limited release tag No. SQ 029093, resulted in

the recovery of 16 Nos. of Pioneer KEH P 8650 car Stereos along with its accessories including remote control. The black colour ""Flyway

Zipper bag bearing checked in tag No.100683 was examined and it was found to contain 8 Nos. of Panasonic SLVP.30 Video Compact Disc

players along with its accessories including remote control and 42 Nos. of Sanyo CLT-X6 Cordless phones with accessories. Thus, in all, 34 Nos.

of Pioneer KEH-P 8650 car stereo with accessories, 50 Nos. of Sanyo CLT-X 6 Cordless Phones with accessories, 50 Nos. of Casio FS-100

Scientific Calculators, 8 Nos. of Panasonic SLVP 30. and VCD Player with accessories were recovered from the bags. The Petitioner was not a

Registered Importer. The goods were brought by the petitioner in trade quantity and not as a bona fide baggage. The petitioner has thus attempted

to smuggle the said goods by mis-declaration. The officer-in-charge, in the presence of witnesses, seized the above electronic goods under

mahazar. The travel documents including customs declaration card were also Seized under mahazar. The petitioner gave a Voluntary statement on

22.7.1998, before the customs officer, at Anna International Airport. In his statement, the petitioner had stated that he purchased these items for

12.000 Singapore Dollars and that the petitioner used to take Indian goods to Singapore and sell them at profit, and buy electronic goods and

other items from Singapore and used to sell the same in the local market and make good profit. The value of the electronic items seized is worth

about Rs. 5,65,500. In September, 1994, the petitioner was arrested, as he attempted to smuggle foreign Currency equivalent to Rs. 6,49,865,

and a case was registered in OS.No.l 18 of 1994- RD. In 1992, the petitioner was caught by the Customs Department for having smuggled

electronics goods worth Rs.3,00,000 and a case in O.S. No.321 of 1992-RD was registered. Thereafter, the petitioner was released by this court

on a writ petition filed by him. The petitioner was arrested by the Trivandrum customs in 1991 for having attempted to smuggle electronic goods

and was detained under the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, and later released as per the orders of

the Advisory Board. He was also caught by the Enforcement Department for having kept foreign currency to the value of Rs.8 lakhs without any

permit or licence. In the above circumstances, the order of detention came to be passed by the 1st respondent on 14.9.1998,

Learned senior counsel Thiru, Habibullah Basha raised several contentions, attacking the order of detention. In our opinion, it is not necessary to

consider all the contentions raised by the learned senior counsel for the petitioner, for we are of the view that this habeas corpus petition will have

to be allowed on the short ground of non-application of mind on the part of the Detaining Authority.

On 23.7.1998, before the Magistrate, the petitioner has submitted that he was ill-treated, beaten up and a statement was forcibly obtained from

him. This is evident from the endorsement made by the Additional Chief Metropolitan Magistrate, E.O.II, on 23.7.1998, when the petitioner was

produced by the customs Department officials for remand. After recording the representation made by the accused about the ill-treatment, the

Magistrate had directed the accused to be produced before a Medical Officer. When the petitioner filed an application for bail, he has stated

specifically that he was forced and tortured by the authorities concerned. The petitioner struck to such a case in all his subsequent representations

and correspondences. The Detaining Authority has referred to it in Ground No. (xi), and in paragraph No.22 the Detaining Authority has

mentioned that Thiru. R. Dhanapal Raj. Special Prosecutor, in his letter dated 27.8.1998 has informed the Customs Department that the Hon''ble

Magistrate has not accorded permission for supply of letter dated 23.7.1998 addressed to the Medical officer, Central Prison, and the reply

received from the Medical Officer.

A definite stand had been taken by the petitioner that he was ill-treated, beaten up and tortured by the authorities concerned and that he was

forced to give a statement. This stand has been taken by him before the Magistrate, before whom he was remanded. The Magistrate concerned

has also directed the accused viz., the petitioner to be examined by a Medical officer, Hence the report of the Medical Officer is, definitely a

relevant document, a copy of the report has not been furnished to the petitioner, though he has asked for it. The Detaining Authority has also not

chosen to call for it. The Sponsoring Authority has failed to place it before the Detaining Authority. By merely stating that the Magistrate had held

that the Department is not entitled to the same, the sponsoring Authority cannot claim to have discharged their duties under law. Even assuming that

the Department filed an application for a copy of it and the same was either rejected or returned by the concerned Magistrate, for which, there is

no proof produced at all, excepting the letter of the counsel, even then, nothing prevented the Department from addressing the Jail Authority

concerned and obtain a copy thereof. If the Department had addressed the Medical Officer or the Superintendent of Prisons requesting for a copy

of the report on the examination done of the accused/petitioner, definitely, it would have been made available to them. Even assuming that inspite of

the letter of request, the Superintendent of Prisons has not obliged the Department, atleast, the sponsoring Authority would be then in a position to

say that they have taken all efforts to obtain a copy of the document and that for reasons beyond their control, they were not in a position to obtain

a copy and supply the same to the petitioner or place it before the Detaining Authority.

Coming to the relevancy of the document, definitely, the report of the Doctor will have a bearing upon the question of detention. It is a vital

document. The Detaining Authority, may, on perusing the report of the Medical officer, come to conclusion that it is not a fit case for claiming order

of detention upon the petitioner. For if the Doctor had noted some injuries upon the petitioner, that would probabilise the version of the petitioner

in which case, the voluntary nature of the statement will become belied. Thus, the report of the Medical Officer being a vital documents would have

certainly affected the subjective satisfaction of the Detaining Authority either way. We consider it as a vital document. Applying the law laid down

by the Supreme Court in Abdul Sathan Ibrahim Manik''s case, 1992 SCC 1. We held that it is a document which would definitely influence the

mind of the Detaining Authority either way, just as the absence of injuries may belie the representation of the petitioner, equally, the presence of

injuries may probabilise the case of the petitioner, in which case, the subjective satisfaction of the Detaining Authority will be greatly influenced by

that record. Therefore, the Medical certificate, is an important and relevant document, which will have a great impact upon the subjective

satisfaction of the Detaining Authority. When that vital document was not produced before the Detaining Authority by the Sponsoring Authority

and when a copy of it has not been furnished to the petitioner/detenu, it definitely affects the validity of the order of detention.

On this short ground, we are of the opinion that the plea of the petitioner has to be accepted, quashing the order of detention. In this view of the

matter, we are to hold that it is not necessary to consider the other contentions raised by the learned counsel for the petitioner.

In the result, this habeas corpus petition is allowed, setting aside the impugned order of detention dated 14.9.1998, passed by the 1st

respondent. The detenu is ordered to be set free forthwith unless his detention is required in connection with any other case or cause.