Lakshmibar vs State of Tamilnadu and Union of India

M. Karpagavinayagam, J.—Lakshmi Bai, the petitioner herein, the mother of the detenu S. Jagannath, challenging the order of detention

directing the detenu to be detained u/s 31(l)(i) of the COFEPOSA Act. 1974. with a view to prevent him from smuggling goods in future, passed

by the Secretary to the Government. Public Department. State of Tamil Nadu, the first respondent herein in G.O.S.R. 1/1222-7/91 Public (SC)

Department dated 22.9.1999. has filed this Habeas Corpus Petition before this Court invoking the Article 226 of the Constitution of India, seeking

to quash the same and to set the detenu at liberty.

The factual matrix leading to the passing of the order of detention, to some extent is essential in order to understand the controversy which is to

be dealt with in this case-

(a)S. Jagaunath, the detenu on 4.8.1999, the holder of Indian Passport came from Singapore to Chennai After completion of his immigration

formalities, he collected his two registered baggages and one polythene hand bag from conveyor belt and proceeded to Table No. 14. There he

declared to the Table Superintendent that he had goods valued at Rs. 1,20.000/-. At that stage, the Directorate. Revenue Intelligence Officers

collected two more registered baggages booked in his name available near the conveyor belt. On suspicion that he left the registered baggages

near conveyor belt in order to evade customs duty, the D.R.1. Officer took him to the A.1.1 J. room along with the other baggages which were in

his possession for examination. When he was questioned, he stated that he was not in possession of any contraband including electronic goods.

(b)Thereafter, the Officer opened and examined four registered baggages and one hand baggage. These four registered baggages on being

opened, found to contain several Panasonic Portable V.C.D. Player with accessories, Samsung Cellular phones. Panasonic Cami Corder,

Panasonic Cordless Phone. Pioneer Car Stereo worth about Rs.5.58.100/-(CTF) and Rs.8J7.150/- (market value). On further interrogation, he

gave a voluntary statement that he went to Singapore and booked four baggages in his name containing electronic goods and declared the goods to

the Superintendent of Customs contained only in two baggages by giving the value of Rs. 1,20,000 and the D.R.1. Officials found two other

baggages booked in his name and when questioned him, he admitted the ownership of those baggages also which were found to contain electronic

goods and that he knew that it is an offence to smuggle these baggages with electronic goods without declaring to customs

(c) On 5.8.1999 he gave further statement that he had earlier been arrested by the customs and detained under COFEPOSA Act in 1995 for

attempting to smuggle electronic goods The authorities found that he committed the offences punishable under Sections 112. 132 and 135 of the

Customs Act and the goods which were attempted to be imported to India were liable for confiscation u/s 111(d), (1) & (m) of the Customs Act,

1962.

(d)The said Jagannath was arrested and the goods were seized. He was produced before the Additional Chief Metropolitan Magistrate. E.O.-I,

Chennai and he was remanded to judicial custody. On his behalf, a bail petition was filed on 6.8.1999 stating that he was innocent and that he did

not give any voluntary statement to the officials The Customs Department, filed a counter denying the assertion made by the detenu in the bail

petition. Ultimately, the said bail petition was dismissed on 17.8.1999. as the same was withdrawn by the counsel for the detenu.

(e)Thereafter, on his behalf, representation was sent to the Commissioner of Customs that no contraband was seized from him under voluntary

confession and the Customs Department did not fix the correct value as he brought the goods worth about Rs.4.00.000/- only and requesting to

furnish the statement of the Customs Officers and to fix the correct value. The Customs Department sent a reply refuting those allegations and

rejecting the request.

(f)Thereafter, the detaining authority, the State Government on the basis of the materials placed by the sponsoring authority formed the subjective

satisfaction to detain him under custody under the COFEPOSA Act in order to prevent him from indulging in such smuggling activities in the future

by the order dated 22.9.1999. This order is the subject matter of the challenge before this Court in this Habeas Corpus Petition filed by the mother

of the detenu seeking for the intervention of this Court.

On behalf of the detenu though in the affidavit filed by the petitioner, several grounds were raised assailing the impugned order of detention, in

view of the counter filed by the respondent giving the factual details. Mr. B. Kumar, the learned senior counsel appearing for the petitioner would

confine himself to three contentions.

As a matter of fact, the main ground urged in paragraph 11 of the affidavit filed by the petitioner that these sponsoring authorities did not place

before the detaining authority the earlier detenu order detaining the detenu under COFEPOSA Act and the order of the High Court which quashed

the same on being challenged in the earlier H.C.P. and that therefore, the subjective satisfaction derived by the detaining authority is entirely

vitiated.

In reply to this ground, counter has been filed by the first respondent stating that the sponsoring authority placed both earlier detention order and

the High Court''s order which quashed the said order and the same were taken note of. but however, those things were not relied upon to clamp

the order of detention on the detenu.

In the light of the stand taken in the counter. Mr. B. Kumar, the learned senior counsel has raised only three contentions, as referred to above.

They are the following:-

(A)Under Section 77 of the Act. any passenger intending to clear any baggage brought by him shall make a declaration. Where a person does not

want to clear the goods, then there is no obligation upon him to make the declaration as to the contents of the baggage. He declared two baggages

containing the goods worth about Rs.4.00,000/- To say that he declared only for Rs. 1,20,000/- is false"". The other two baggages though

registered in his name were not intended to be cleared by him. Therefore, there cannot be any accusation against him that he attempted to smuggle

the goods contained in all the four baggages by putting the total value of Rs.5,58.100/((CIF)) and Rs.8,37.150/- (market value).

(B)Though the detenu was earlier detained under COFEPOSA Act by the order dated 6.12.1993, the said order was subsequently quashed by

the High Court order in the Habeas Corpus Petition. Therefore, the non-est order under which he was earlier detained had been considered and

relied upon by the detaining authority to pass the present order of detention. Hence, the detention order is illegal.

(C)On behalf of the detenu, a representation had been sent to the authorities requesting for the above referred prominent documents, namely,

earlier detention order and High court qua string order, but the same were not furnished. This is clear violation of Article 22(5) of the Constitution

of India which would render the detention of the detenu illegal.

In reply to these contentions, the learned Additional Public Prosecutor would submit that there are materials to show that the detenu has

committed offences under the Customs Act. as he had attempted to smuggle the goods by evading the customs duty and that the documents such

as. the earlier detention order and the High Court quashing order though were placed by the detaining authority, they were not furnished to the

detenu, as they were not the relevant material documents so as to be relied upon and consequently, the detention order cannot be said to be

vitiated on any ground.

To begin with, it shall be noticed that the ground Nos.2 and 3 have not been specifically raised in the petition though there is reference about the

first ground in the petition. As noted above, these fresh grounds, namely, second and third grounds were urged only during the course of arguments

on coining to know of the factual details given in the counter filed by the respondent.

It is quite important to note that the grievance of the petitioner at the initial stage that these two documents referred to above were not placed

before the detaining authority and if they have been placed, those things would have weighed in the mind of the detaining authority, which in turn

would have taken some other decision. But. that grievance is no more available at present, in view of the assertion by the detaining authority

through the counter that the same were placed before it. for consideration.

In the light of this statement, now. the present grievance of the petitioner is that they have not been furnished the said documents, even though

they were placed for consideration before the detaining authority, despite the request made on behalf of the detenu.

As noted above, these additional grounds have not been raised in the pleadings by filing the petition seeking to raise the same. In addition to

that, the learned senior counsel appearing for the petitioner has also not given details as to when such a representation requesting for furnishing the

said copies was sent and as to whether the said requisition was received by the authorities. But, it is clear that the said requisition had not been sent

till 20.10.1999 on which date the present petition had been filed before this Court, as there is no reference about the said requisition in the affidavit

which accompanied the petition

It is argued by the learned senior counsel that since the said oral plea with reference to the requisition was not denied by the learned Additional

Public Prosecutor, it must be taken that the documents were requested to be furnished and the same were not furnished Without going into this

aspect, it would be better to straightway consider the merits of the contentions one by one urged by the learned senior counsel.

Regarding the first contention, it is noticed that the grounds of detention and other documents including the confession statements of the detenu

dated 4.8.1999 and 5.8.1999 would show that after leaving the two baggages near the conveyor belt, the detenu went to the Table No. 14 and

declared that the electronic goods contained only in the other two baggages, that too for a lesser value of Rs. 1.20.000/-. It is stated through

representation and through this petition that the detenu declared that the goods in two baggages are not for Rs. 1.20.000/- but for the value of

Rs.4.00.000/-. But as seen in the declaration document, it is revealed that the detenu had declared the value of the goods contained in the two

baggages as Rs. 1,20.000/-

Furthermore, as admitted by him in his statement given on 4.8.1999 and 5.8.1999 that he deliberately left the two other baggages near the

convey or belt and collected two baggages only for customs clearance in order to take those two baggages without duty some times later with

other two baggages opted for clearance These facts would clearly show that he attempted to evade the customs duty by giving a misdeclaration in

violation of Section 77 of the Customs Act. Consequently, the goods that were attempted to be imported to India through smuggling were liable to

be confiscated u/s 111(d) (1) & (m) of the Customs Act.

Further it is alleged that these electronic goods were being attempted to be imported in total contravention of the Rules In hatching a careful

plan by leaving the two baggages near the conveyor belt in order to take them away after getting clearance of the other two baggages without

making any payment of the customs duty for those goods and as such, this act would definitely be dubbed as an act of attempted to smuggling as

defined in Section 2(39) of the Customs Act.

Anyway, the truth or otherwise in regard to the accusation contained in the various documents of the customs authorities in the light of the rival

contentions of the parties, cannot be gone into this Habeas Corpus Petition by this forum.

As laid down by the Apex Court in Ahamed Nussar v. State of Tamil Nadu (200(1 CRI L.J.33). the merits and demerits with regard to the

factual position cannot be the subject matter for consideration in Hebeas Corpus Petition In those circumstances the first contention would fail.

The grounds 2 and 3 as they are interconnected, can be considered jointly It is the contention of the learned senior counsel for the petitioner,

the important documents which would influence the mind of the detaining authority, were placed and that the earlier detention also was considered

to pass a second detention order and as such, they would be entitled to those copies in order to enable the detenu to make an effective

representation and at any rate, he must have been furnished the said copies, as he had requested through his representation and non-supply of the

said documents would make his detention illegal.

To deal with this point, it would be appropriate to understand the settled principles of law on this aspect by referring to the various decisions

given by this Court as well as the Apex Court cited by the counsel for both.

In M. Ahamedkutty v. Union of India (1990 S.C.C. (Cri.) 258). the Apex Court has held as follows:

The constitutional imperatives in Article 22(5) are twofold: (1) The detaining authority must, as soon as practicable after the detention,

communicate to the detenu the grounds on winch the order of detention has been made, and (2) the detaining authority must afford the detenu the

earliest opportunity of making the representation against the order of detention The right is to make an effective representation and when some

documents are referred to or relied on in the grounds of detention, without copies of such documents, the grounds of detention would not be

complete. The detenu has. therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relied on. If

there is failure or even delay in furnishing the documents, it would amount to denial of the right to make an effective representation.

In Khudiram Das Vs. The State of West Bengal and Others, . the Supreme Court has held thus:-

Therefore, in a case where the material before the District Magistrate is of a character which would in all reasonable probability'' be likely to

influence the decision of any reasonable human being, the Court would be most reluctant to accept the ipse (sic) of the District Magistrate that he

was not so influenced and a fortiori, if such material, is not disclosed to the detenu, the order of detention would be vitiated, both on the ground

that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as

also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention.

In Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, it has been observed as under:

There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3. sub-section (3) of the COFEPOSA

Act. it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other

materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than

five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days From the date of detention. If this

requirement of clause (5) of Article 22 read with Section 3. sub-section (3) is not satisfied, the continued detention of the detenu would be illegal

and void.

In L.M.S. Ummu Saleema v. B.B. Gujaral (AIR 1982 S.C. 1191). the Apex Court has observed as follows:

it is, therefore clear that even failure to furnish copy of a document to which reference is made in tile grounds of detention is not an infringement of

Art. 22(5) fatal to the order of detention It is only failure to furnish copies of such documents as were relied upon by the detaining authority.

making it difficult for the detenu to make"" an effective representation, that amounts to a violation of the Fundamental Rights guaranteed by Art.

22(5) In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of

facts and which are not relied upon by the detaining authority in making the order of detention.-

In Kamarunnissa and Others Vs. Union of India and another, . the Supreme Court has held thus -

It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the

non-supply has impaired the detenu''s right to make an effective and purposeful representation Demand of any or every document, however

irrelevant it may be for the concerned detenu, merely on the ground that there is a reference thereto in the grounds of detention cannot vitiate an

otherwise legal detention order No hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the

failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insignificant it ma\

be In the present case, except stating that the documents were not supplied before the meeting of the Advisor, Board, there is no pleading that it

has resulted in the impairment of his right nor could counsel for the petitioner point out any such prejudice.

In Subhiah v. Commissioner of Police, Madras City (1993 (L. W. (Cri.) 113). this Court has held as follows -

Having regard to the scope and object and the facts disclosed in the order of detention, we have to examine whether the documents asked for b\

the detenus have any relationship to the allegations made against the detenus It will not he proper to hold that the detenue can ask for the moon and

if it is not made available, the order of detention is vitiated.

In Madan Lal Anand v. Union of India (1990 S.C.C. (Crl.) 51), it has been observed thus:-

Only copies of documents on which the order of detention is primarily based should be supplied to the detenu and not am and even, document We

must not how ever, be understood to say that the detaining authority will not consider any other document All that has to be shown is that am

document which has bearing on the subjective satisfaction of the detaining authority hut not relied upon by him was before the detaining authority''

at the time he passed the order of detention:-

In Abdul Sathar Ibrahim Manik v. Union of India (1992 S. C. C. (Cri) 1), the Apex Court has held as follows:-

When the detaining authority has merely referred to some documents in the narration of events and has not relied upon them, failure to supply bail

application and order refusing bail will not cause any prejudice to the detenu in making an effective representation Only when the detaining

authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may. in

certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India Whether in a given case

the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds

winch aspect can be examined by the Court.

In Powanammal Vs. State of Tamil Nadu and Another, , the Supreme Court has observed thus:-

However. this court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of

detention and a document which finds a mere reference m the grounds of detention Whereas 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. Tins is

because 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 But. it would not be so where the document merely finds reference in the order

of detention or amount to the grounds thereof In such a case, the detenu''s complaint of non-supply of document has to be supported by prejudice

caused to him in making an effective representation.

In Changan Bhagwan Kahar v. N.L. Kalna (1989 S.C.C. (Cri.) 367). it has been held as follows -

A fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said

order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite

subjective satisfaction to pass a fresh order because once the court strikes down an earlier order by issuing rule it nullifies the entire order.

In Ramesh Vs. State of Gujarat and Others, ). the Supreme Court has observed as under -

On a careful scrutiny of the grounds of detention, we unreservedly hold that the detaining authority has taken into consideration, the two criminal

cases mentioned under Sr.Nos.l and 2 of the table which were the materials in the earlier order of detention, that had been quashed and that it

cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenu

In Ibrahim Bachu Bafan Vs. State of Gujarat and Ors, the Apex Court has held as under:-

Where an order of preventive detention is quashed by the High Court in exercise of its extraordinary jurisdiction, the power of making a fresh

order under S. 11 (2) is not available to be exercised. Such a fresh order under S. 11(2) can be made only when the previous order is revoked

under S. 11(1) of the Act

In Vijayraj Jivraj Solanki Vs. Union of India and others, , the Bombay High Court has held thus:-

It is therefore clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been

quashed by the Court., and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the

detaining authority is making a detention order the order of detention will be vitiated.

In Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others, the

Apex Conn has observed as follows:-

Two propositions having a bearing on the points at issue in the case before us clearly emerge from She aforesaid resume of decided cases, (a) all

documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority

in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds .....(b) all such material must be furnished to

him in a script or language which, he understands. Failure to do either of the two things would amount to a breach of the two duties cast on the

detaining authority under Article 22(5) of the Constitution.

The reading of the above judicial pronouncements would provide the following mandates, which shall be reminded of for the purpose of

dealing with the facts of the present case:-

(a) The detenu has the right to be furnished with the grounds of detention along with the documents referred to or relied on. If there is a failure, it is

a denial of right to make an effective representation.

(b)Where the material before the detaining authority is of a character, which would in all probability be likely to influence the decision of the

authority. is not disclosed to the detenu, the order of detention would be vitiated.

(c)Every failure to furnish copy of a document to which reference is made is nor an infringement of the Article 22(5). It is unnecessary to furnish

copies of documents to which casual or passing reference made and which are not relied upon in making the order of detention. (d)Mere statement

that the detenus were not supplied the copies of the documents in tune on demand would not automatically make the grounds of detention illegal.

The detenu must show that the non-supply of the said document had impaired or prejudiced his right, however slight or insignificant it may be

(e) The detenu would be entitled to the copies of documents on which the order of detention is primarily based and not any and every document.

(f)When the detaining authority has merely made some reference to some document in the narration of events and has not relied upon them, the

failure to supply those documents will not cause any prejudice to the detenu

(g)Whether in a given case the detaining authority has casually or passingly referred to those documents or also relied upon them would depend

upon the facts and the grounds, which aspect can be examined by the Court:

(h)In the case of non-supply of the copy of document relied upon in the grounds of detention, the detenu need not show that any prejudice is

caused to him. But. where the document finds mere reference in the order, the plea of non-supply of document on demand has to be supported by

the prejudice caused to him.

(i) When an earlier detention was quashed by the Court, the grounds of the said order should not be taken into consideration to pass a fresh order,

while forming the subjective satisfaction in making the detention order. If it is done, the order of detention will be vitiated.

In the light of the above mandates, we shall now proceed to decide the crucial point involved in this case. To decide the above point, it shall be

decided first whether the detaining authority had relied upon these two documents, namely, the earlier detention order and the High Court order

which quashed the same, for arriving at subjective satisfaction in order to clamp the order on the detenu.

According to the learned Additional Public Prosecutor, the first document, namely, the earlier detention order was not relied upon by the

detaining authority and the said document was referred to as a casual reference in the narration of the events in the order, while giving the crux of

the confession statement given by the detenu to the sponsoring authority and the High Court order was not even referred to in the detention order

and therefore, these documents which were not actually relied upon by the detaining authority need not be supplied to the detenu.

In the context of the above submission, it has become necessary to go into the grounds of detention.

As pointed out by the Additional Public Prosecutor, the reference about the earlier detention order was made by the detaining authority in

paragraph (iii) of the grounds of detention, while stating the contents of the admission made by the detenu. The following is the said reference:-

In your further voluntary statement given before the Customs Officers at Chennai. Custom House on 05.08.99. you. Thiru Jagannath merely

stated....that you had earlier been arrested by Customs and detained under COFEPOSA Act in 1995 vide O.S No. 17/95 for attempting to

smuggle electronic goods into India by using Passport Number R080467 dated 06.12.93. that you had repeated this offence; that you requested

to he forgiven: that you had given the statement voluntarily without am compulsion and written by you

Except in this paragraph, there is no reference about the earlier detention order, in any of the other paragraphs of the grounds of detention. It is

clear that paragraph 1 containing 13 sub- paragraphs would give the entire narration of events. As indicated above, in sub-paragraph (iii). it is

merely stated that the detenu admitted before the customs authorities that he was earlier detained for attempting to smuggle electronic goods into

India and as such, he has repeated the offence. This is merely a reproduction of the statement made by the detenu before the customs authorities

mentioning the earlier detention order.

The reading of the other paragraphs from 2 to 9 would clearly show that the detaining authority derived subjective satisfaction only on the

single incident which took place on 4.8.1999. In other words, it can be safely held that the earlier detention order was not relied upon for the

purpose of clamping the present detention order on the detenu.

As a matter of fact, the first respondent in his counter has clearly stated in page Nos. 14 and 15 of the counter as follows:

The detaining authority did not rely upon the previous detention order in respect of passing the detention order for the offence that had been

committed b\ the detenu on 4.8.99......The materials relating to the offence committed by the detenu on 4X99 were alone taken into consideration

for passing the detention order.

In our view, this statement of fact as contained in the counter- affidavit filed by the first respondent is correct, inasmuch as there is nothing in

the detention order to indicate the said document was considered and relied upon for the purpose of passing detention order. On the other hand, it

can be stated that the reading of the detention order as a whole would make it clear that the detaining authority arrived at subjective satisfaction to

pass the order of detention order regardless of the earlier involvement and the detaining authority arrived at such a subjective satisfaction to pass

the order taking into consideration of the nature of the offence committed on 4.8.1999 alone.

At this juncture, it shall be noticed from the wordings of the counter that the detaining authority. while passing detention order has not only gone

through the earlier detention order but also the High Court order by which the earlier detention order was quashed. According to the detaining

authority, it went through both the detention order and the order of this High Court for verification of the earlier involvement and the result of the

order and found that the earlier order was set aside by the High Court on a technical mistake.

It is settled law. as indicated above, that once the earlier order of detention was quashed by the High Court, that cannot be the subject-matter

of the fresh detention. Therefore, the detaining authority would be well within the limits to go through the High Court order in order to decide

whether the earlier grounds could be considered for the fresh detention. Probably, that was the reason as to why the grounds of earlier detention or

the detention order earlier passed were not relied upon by the detaining authority in any of the paragraphs of the detention order.

As noted above, reference about the admission of the detenu with regard to the earlier detention order is only factual narration. In other words,

the said reference can neither be termed to be consideration nor any reliance for the purpose of passing detention order

In this context, it is worthwhile to refer to paragraph 13 in the counter giving the details of the materials relied upon by the detaining authority

for passing the detention order, which is as follows:-

(l)The detenu admittedly was having three passports The first passport was bearing No.R080467. dated 6.12.93. the second passport was

bearing No.A4434690. dated 4.12.97 and the third passport bearing No.Zl053445 dated 25.3.99 Hence it is clear that the detenu was haying

several passports in his name and he was frequently making visits abroad.

(ii)Even according to his statement dated 4.8.99 he has explained elaborately the modes of operandi. According to him, he used to take ever silver

vessels and used to sell them at Singapore and he used to purchase electronic goods from there and he used to sell them at Chennai.

(iii)Even according to his own statement, the first passport expired fully and he got an additional passport No.11 1053445 This clearly shows that

the detenu has travelled on several occasions to abroad. In his statement he had elaborately explained with regard to the illegal act of smuggling.

(iv)The detenu should have made a true declaration u/s 77 read with Section 111(1) and (m) of the Customs Act. 1962 (Central Act 52 of l962

(vi)But for the timely intervention of the Directorate of Revenue Intelligence officials the detenu would have succeeded in clearing the goods by way

of false declaration without payment of duty (vii)The goods which were brought by the detenu were huge in quantity and they were commercial in

nature.

(viii)The detenu was not having any valid permit or order to import such a huge quantity of goods which are in commercial in nature which is an

offence under the Customs Act read with Foreign Trade (Development and Regulation) Act

(ix)The seizure of the above said goods under a valid mahazar in the presence of independent witnesses, the voluntary statement given by the

detenu on 4.8.99 and 5.8.99. the retractions sent by the detenu and the letters written by the Department denying the allegations were taken into

consideration for passing the detention order.

(x)The detenu has cleverly booked four luggages in his name at Singapore. He deliberated left behind two baggages near the conveyor belt and

presented only two baggages in order to take the other two luggages after customs clearance to avoid customs duty. The modes of operandi was

also taken into consideration along with the other materials

On going through the counter and the detention order, we are of the opinion that the detention order has been passed by the authority only on

self-sufficient materials referred to above. Thus, it is clear that the earlier detention order relating to the previous involvement cannot be said to

have influenced the mind of the detaining authority for clamping the order of detention, especially when the detaining authority clearly stated in the

counter that it went through the detention order and High Court order quashing the earlier detention order for verification.

In the case before us. it is true that these two documents, namely, the earlier detention order and the High Court order, the copies of which

were not furnished to the detenu. But. we are satisfied that those documents cannot be said to be the documents which were relied upon by the

detaining authority in making the order of detention. When these documents were not relied upon by the detaining authority as reiterated by the

detaining authority itself in the counter-affidavit, then the detenu would not be entitled to get the same, especially when we feel that these

documents would not weigh in the mind of the detaining authority in any way. while forming the subjective satisfaction in making the order of

detention. As such, we fail to understand as to how the above two documents will assist the detenu to make an effective representation.

The mere fact that there is reference to the earlier detention order as per the statement of the detenu would not lead to any conclusion that it is

a primary document upon which the grounds of detention were formulated. As a matter of fact, the detaining authority in the present case, had

passed the order of detention after perusing both the earlier detention order and the High Court order by which the earlier order was quashed. This

shows that the detaining authority had thought it fit not to rely upon the earlier detention order, in view of the same having been quashed by the

High Court. Under these circumstances, the detenu could not be permitted to complain to the effect that he was not furnished with these

documents.

Furthermore, the detenu also could not complain about the non- supply of documents even on demand, especially when there is no pleading

for the prejudice. Once the earlier detention order was quashed by the High Court and consequently, there is no reliance to the grounds in the

earlier detention by the detaining authority, then there is no point in asking for those documents which are not relevant and which have no bearing

to the subjective satisfaction arrived at by the detaining authority in passing the present order of detention. Virtually, it can be safely stated that even

the inference of any trace of prejudice in the present case could not be drawn due to the said non-supply

For the discussion made in the foregoing paragraphs, we are of the view that the order of detention is perfectly justified and does not suffer

from any illegality and consequently, the Habeas Corpus Petition is liable to be dismissed and accordingly, the same is dismissed.