K.V. Jesudasan vs State of Tamil Nadu and Another

David Annoussamy, J.—This is a petition under Art. 226 of the Constitution of India, by the detenu himself for the issuance of a writ of

habeas corpus praying this Court to quash the order of detention passed against him by the first respondent and to set him at liberty.

The order of the detention was passed by the first respondent on 10-3-1987 in exercise of the powers conferred by S. 3(1)(iii) and 3(1)(iv) of

the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (Central Act 52 of 1974) with a view to preventing him

from engaging in keeping smuggled goods and dealing in smuggled goods, otherwise than by engaging in transporting or concealing or keeping

smuggled goods.

A request was made by the detaining authority to the Central Government for a declaration under S. 9(1) of the Conservation of Foreign

Exchange and Prevention of Smuggling Activities Act 1974, on 18-3-1987, and a reply was received from the Central Government by the

Collector of Customs, Madras, on 3-4-1987 to the effect that a declaration under S. 9(1) was not issued in respect of the petitioner-detenu; but

the order of detention passed by the first respondent is alive.

On 22-9-1986 the officers of the Central Excise searched the premises of the detenu in the presence of independent witnesses, as well as in the

presence of the detenu. In the course of the search several account books were recovered from the bedroom of the detenu. In addition to those

account books, Indian currency to the tune of Rs. 50,300/- was seized. In a statement given before the Superintendent of Customs, Madras on

23-9-1986 under S. 108 Customs Act, the petitioner stated, inter alia, that he and his brothers were buying and selling Video Cassette recorders,

video cassette players, televisions, etc., that his shop is not one meant for notified goods under the Customs Act, that the account books were

written by the petitioner and that they contained particulars of foreign goods, purchased and sold by him, that the petitioner used to purchase

foreign goods from passengers coming from abroad and from the brokers and used to sell them to the petitioner''s customers and other shop

keepers in Burma Bazar. As a follow-up action, the shop owned by the detenu was searched by a party of Customs officers on 23-9-1986 in the

course of which 14 Nos. of National Video cassette tapes were recorded, and the detenu was not in possession of any valid documents or bills to

show their licit origin and legal acquisition of the aforesaid tapes. The detenu was arrested under Customs Act on 24-9-1986 and released on bail

on 27-9-1986. In pursuance of the order of detention, the petitioner was arrested on 11-3-1987 and he is on detention from that date.

The learned counsel appearing for the petitioner detenu raised several grounds in support of his prayer to quash the order of detention. The first

of such ground is that the detaining authority who relied on the statement of Jhaganghir on 8-12-1986 failed to place his reply to the show cause

notice before the Advisory Board. As per the grounds of detention, the name of Jhaganghir came to the knowledge of the Customs Officials from

the fact that his phone number was found in the documents seized from the detenu. Jhaganghir gave a statement on 8-12-1986 before the

Superintendent of Central Excise, Tuticorin, stating inter alia that he had been to Singapore on 11-3-1985, that on return from Singapore, he

brought one T.V.V.C.P. textiles and other goods, that the T.V. was booked as unaccompanied baggage, that as he had no money to pay duty for

the T.V. he wanted to sell his textiles and other goods, and accordingly he went to Burma Bazar, Madras and met the detenu to whom he sold his

goods for Rs. 4500/- and that he has not sold any smuggled goods to the detenu. But in the statement of the petitioner, it is indicated that

Jhaganghir used to sell smuggled goods to the detenu. Thereafter, a show cause notice was issued to Jhagaghir on 16-3-1987. A reply was sent by

Jhaganghir, which reply was received by the Customs office on 26-3-1987. The Advisory Board was scheduled to meet on 15-4-1987, but

actually met only on 23-4-1987. The case of the petitioner is that the show cause notice and the reply of Jhangaghir were not placed before the

Advisory Board, and that the failure to place those materials before the Advisory Board vitiated the order. He has raised this ground specifically in

para 11 of his affidavit. In reply thereto, in the counter-affidavit it is stated that the show cause notice to Jhaganghir was issued to him by the

Customs department on 16-3-1987, after the detention order was passed as against the detenu, and therefore, it was not placed before the first

respondent, and consequently, not placed before the Advisory Board.

The first question which therefore arises is, whether a document which comes into existence after the detention order and which has some

relevance as regards the detention order has to be necessarily placed before the Advisory Board. The learned counsel for the petitioner placed

reliance on three decisions. The first decision is the one passed by a Bench of this Court in A. Vellanai v. Collector and Dt. Magistrate, Tirunelveli,

1984 Cri LJ 68 in which it has been observed as follows -

In other words the action of the detaining authority in withholding of subsequent information tending to falsify or belie the earlier materials on which

the earlier detention order was based, would stand unchallenged. In that case, there is the danger of the detaining authority in every case

withholding all materials even if they have got a vital bearing on the matter in issue in order to see that his order of detention is sustained. This

would definitely lead to a situation where the personal right and liberty of a person would be at stake at the hands of the executive and the

safeguard provided by the Constitution for the protection thereof would be impaired.

The other two decisions of two other Benches of this Court are unreported. One dt. 27-1-1987 in Thangavel v. State of Tamil Nadu rep. by Addl.

Secretary to Govt. Public (SC) Dept. Madras W.P. 4929 of 1986, and the other passed on 25-11-1987 in Mani v. State of Tamil Nadu by Dy.

Secretary to Govt. Public (SC) Dept. Madras W.P. 6582 of 1987; In both these decisions, the principles laid down in the earlier decision have

been followed. What emerges from the above decisions is that all relevant materials which come to the knowledge of the Government before the

meeting of the Advisory Board should be placed before the Advisory Board.

The learned Public Prosecutor appearing for the first respondent contends that inasmuch as the reply to the show cause notice is only a replica

of the statement already made, it was not necessary to place that rely before the Advisory Board. In the first place, this connection is not entirely

correct factually. For instance, in the reply dt. 24-3-1987, to show cause notice Thiru Jhaganghir has come forward to state as follows -

What he (detenu) has stated that I used to sell him the foreign goods is an imaginary one and not true.

Secondly, as per the counter of the first respondent, para 13, this reply to the show cause notice of Jhaganghir was not even in the hand of the

detaining authority. It was still in the hand of the Sponsoring department.

In law, the responsibility of the Advisory Board in the scheme of preventive detention is extremely important. It is a body independent from the

Detaining Authority, whose duty is to go into the facts in order to appreciate whether it is proper or not to keep the person concerned under

detention. The detaining authority has to abide by the opinion of the Advisory Board in case the Advisory Board opines that it is not necessary to

detain the person concerned. Therefore, the detaining authority cannot vest on himself any discretion regarding the opportunity of forwarding or not

forwarding to the advisory board any material which may have some relevance on the detention. The relevance is to be ascertained having regard

to the nature of document and not to its content in respect of which one may be lead to form a subjective opinion. In this case, the order of

detention clearly indicates some connection between Jhaganghir and the detenu in matter of dealing in smuggled goods and therefore whatever

reply Jhaganghir gives to the show cause notice issued to him by the Customs Department is palpably a relevant document. The failure to place it

before the Advisory Board vitiates certainly the detention order.

Another contention of the learned Public Prosecutor appearing for the first respondent is that the connection of Jhaganghir with the detenu is a

ground which is severable from the other grounds, and therefore, even if such ground is found to be bad on account of the failure to forward the

reply of Jhaganghir to the show cause notice, the order would still be valid by virtue of S. 5A of the Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act 1974. This contention does not in the first place take into account the true nature of ground as such. Even

otherwise the detention order now is found to be bad and vitiated not because one specific ground of detention is found to be invalid, but because

a golden rule to be followed in matter of procedure regarding the detention has not been followed. In fact, when one document which has to be

placed before the Advisory Board was not placed no one can predict what would have been the opinion of the Advisory Board had that document

also been placed, all grounds taken together. The severance of ground does not arise at that stage. Therefore, this contention of the learned Public

Prosecutor also is not acceptable.

Though the learned counsel for the petitioner raised several other grounds challenging the order of detention, since we have found that the

order is fatally vitiated on this first ground, we need not go into the other grounds. In the result, this writ petition is allowed; the order of detention in

set aside, and the petitioner is directed to be set at liberty forthwith unless required otherwise.

Petition allowed.