This habeas corpus petition is filed by the wife of the detenu by name Ahamed Ibrahim Abdul Jaleel, who is detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (hereinafter referred to as 'COFEPOSA Act, 1974') and confined in the Central Prison, Madurai, pursuant to the order of detention dated 4.11.2010, which was executed on 22.8.2011.
2. The detention order was passed on the ground that the detenu indulged in smuggling of gold when he came from Columbo by Jet Lite Flight No.S2 542, which arrived at the Anna International Airport, Chennai on 10.7.2010. The Immigration Authoriites of the Airport intercepted the detenu on the ground that he brought 699 grams of gold worth Rs.12,83,713/-. The detenu was arrested on 10.7.2010 at 13.00 hours for the alleged contravention of the provisions of the Customs Act, 1962. He was produced before the Additional Chief Metropolitan Magistrate, EO-II, Egmore, Chennai, on the same day and remanded till 23.7.2010. Bail was granted to the detenu on 16.7.2010 with a condition to appear before the respondent daily. The said condition was modified on 4.9.2010 with a direction to appear before the respondent once in a month. After a long time, the detention order was passed, that was on 4.11.2010, which was executed by detaining the detenu on 22.8.2011.
3. The said detention order is challenged in this habeas corpus petition by raising various grounds viz., show cause notice issued and the reply to show cause notice submitted by the detenu and sanction for complaint was not placed before the State Advisory Board/ Confirming Authority; there was delay in execution of the detention order for about 9 months and 18 days; and that, the representation sent by the detenu dated 19.10.2011 to the detaining authority has not been properly considered. Petitioner also filed M.P.No.1 of 2011 and raised additional grounds attacking the order of detention.
4. The first respondent has filed counter affidavit to the main petition as well as to M.P.No.1/2011 contending that the show cause notice dated 24.11.2010 and the reply to the show cause notice dated 30.11.2010 submitted to the Additional Commissioner of Customs have not been received by the State Government and therefore placing the same before the State Advisory Board/Confirming Authority does not arise. Insofar as the second ground viz., delay of about 9 months and 18 days in execution of the detention order, it is stated that the detenu was not available in the address furnished and he was absconding from the date of detention in order to evade his arrest and a notification was made on 22.1.2011 in the Government Gazette directing the warrantee to appear before the Superintendent of Police, Ramanathapuram District as contemplated under Section 7(1)(b) of the COFEPOSA Act, 1974. The detenu failed to appear and thereafter action under section 7(1)(a) of the COFEPOSA Act, 1974 was initiated on 9.5.2011 and after knowing about the appearance of the detenu before the Court on 22.8.2011, he was arrested on the same day at Chennai and the detention order was executed and as such there is no delay in execution of the detention order. With regard to the contention that there is delay in passing the detention order, it is replied in the counter affidavit that the proposal for detaining the detenu was received from the Sponsoring Authority on 23.7.2010 and after investigation process was completed, the last relied upon document was received on 5.10.2010 and after thorough scrutiny of materials and after arriving at subjective satisfaction, the detention order was passed on 4.11.2010. Hence there is no delay in passing the detention order.
5. Mr.S.Palanikumar, learned counsel appearing for the petitioner stressed two points viz., (a) not placing the relevant documents before the Advisory Board/Confirming Authority, and (b) delay in execution of the detention order, and submitted that if the Court is not satisfied with the said two grounds, the other grounds raised may be considered. Insofar as non-placing of the show cause notice and reply to show cause notice, the learned counsel argued that the show cause notice dated 24.11.2010 was issued and on receipt of the same the detenu submitted a reply to the show cause notice on 30.11.2010 to the Additional Commissioner of Customs, Air Cargo Complex, Meenambakkam, Chennai-27, which was acknowledged on 3.12.2010 and the same was not placed before the Advisory Board in the meeting held on 19.10.2011. The learned counsel also cited some decisions in support of his contention and stated that not placing the show cause notice and reply to the show cause notice before the Advisory Board and before the State Government has vitiated the continued detention of the detenu.
6. Insofar as the second contention that there was inordinate delay of 9 months and 18 days in execution of the detention order, the learned counsel submitted that the detenu was very much available at Chennai as he was directed to appear before the Additional Chief Metropolitan Magistrate, EO-II, Chennai, as per the bail condition on every hearing date and he appeared before the said Court on 6.4.2011, the charge sheet was given to the detenu on 20.4.2011 and even thereafter the detenu appeared before the said Court on 26.4.2011, 4.5.2011, 21.5.2011, 14.7.2011, 28.7.2011 and on 22.8.2011. The detenu also received recovery notice dated 9.8.2011 from the Customs Department on 11.8.2011 while staying at Chennai. The detenu also sent representation on 19.10.2011 to the detaining authority enclosing the Court records relating to his appearance on all hearing dates. The learned counsel also cited few decisions in support of his contention that the delay in execution of the detention order will vitiate the detention order.
7. Mr.A.Ramar, learned Additional Public Prosecutor relying on the averments made in the counter affidavit submitted that the show cause notice and the reply to show cause notice have not been received by the first respondent and therefore the same were not placed before the Advisory Board/Confirming Authority. Insofar as the delay in execution of the detention order, the learned Additional Public Prosecutor contended that the detenu was not available in the address furnished and he was absconding from the date of detention to evade arrest and therefore there was delay, which is explained in paragraph 8 of the counter affidavit.
8. We have considered the rival submissions made by the respective counsels. The two grounds we are called upon to decide in this habeas corpus petition are,
(a) Whether non-placing of the show cause notice dated 24.10.2011 and the reply to show cause notice dated 30.11.2010 before the State Advisory Board/Confirming Authority, vitiates the order of detention ?
(b) Whether there are justifiable reasons for the delay in execution of the detention order dated 4.11.2010, which was executed only on 22.8.2011 ?
9. With regard to the first ground viz., whether non-placing of the show cause notice dated 24.10.2011 and the reply to show cause notice dated 30.11.2010 before the State Advisory Board/Confirming Authority, vitiates the order of detention is concerned, the learned counsel for the petitioner placed reliance on the order dated 5.1.2012 made by us in H.C.P.(MD)No.635 of 2011, wherein in paragraph 11 we have considered the said issue and held as follows: “11. As regards the second ground i.e, the show cause notice issued to the detenue dated 11.8.2011 subsequent to the order of detention and the reply submitted by the detenue dated 15.9.2011 were not placed before the State Advisory Board/Confirming Authority in its meeting held on 21.9.2011, the order of confirmation issued by the first respondent in G.O.Rt.No.3481 Public (Law and Order) Department, dated 12.10.2011 nowhere refers the show cause notice and reply of the petitioner.
(a) In the decision reported in 2000 (3) CTC 97 (Rajeswari v. Joint Secretary to Government) this Court considered the issue as to whether show cause notice and reply to show cause notice are bound to be placed before the State Advisory Board and not placing the same will vitiate the decision of the Advisory Board. In paragraph 23 it is held as follows: “23. In their counter affidavit, the respondent Central Government points out that such a show cause notice was, in fact, served on 24.7.1999 while the detenu was in jail but before that itself, the detention order was already passed on 14.7.1999 and, therefore, there was no question of the said show cause notice being considered by the detaining authority so far there can be no notice being considered by the detaining authority so far there can be no complaint. The counter makes a reference to the reply by the detenu dated 3.8.1999 wherein the detenu had stated about the liberalized policy for importation of gold and had also offered some explanation for licit import or acquisition/possession of the seized gold-bars. While it is the admitted position that the said documents were not placed before the Advisory Board, it is tried to be suggested that the document which originated after the passing of the detention order and which could not be within the knowledge of the detaining authority need not be produced before the Advisory Board. This is how the contention goes:
“The role of the Hon'ble Advisory Board is clearly stipulated in Section 8(c) of the COFEPOSA Act, 1974. It is far too much to stretch an argument/contention to the effect that the documents accrued after the passing of the Detention Order which could not therefore be within the knowledge of the Detaining Authority while passing the Detention Order must also be placed before the Advisory Board by the Department. As per this provisions of Section 8(b) of the COFEPOSA Act a reference is required to be made by the appropriate Government to the Advisory Board within the prescribed period in respect of a Detention Order and to place before the Advisory Board, the Detention Order, the Grounds of detention and the relied upon materials. Thereafter, the role of the Advisory Board is clearly stipulated in Section 8(c) of the Act, including the opportunity to be given to the detenu for hearing. It is respectfully submitted that these provisions were strictly complied with in this case. In this case the Hon'ble Advisory Board heard the detenu through his counsel Shri B.Kumar and thereafter only expressed its opinion. It was for the detenu to put forward his case and submit whatever documents he deemed fit in is interest during the hearing before the Advisory Board. It is incorrect on the part of the petitioner to suggest that the Detaining Authority should have placed the said documents which came into existence after passing the order of detention but before the date of hearing by the Hon'ble Advisory Board.”
Very significantly, the counter does not say that the above referred documents were neither relevant nor material. In the counter, the authorities take a bald stand that the show cause notice and the replies thereto need not have been placed before the Advisory Board. In this behalf, the learned counsel for the petitioner took a very clear stand that these documents were extremely relevant and material documents. He points out that the said documents clarified the stand on facts as also on law by the detenu regarding the possession of the gold-bars and, therefore, these documents were extremely relevant documents and could have helped the Advisory Board to come to the conclusion whether there was in fact any justification for passing the order of detention or not. Unfortunately, this aspect has not been countered by the respondents and then it is a tacit admission that the documents were relevant and material documents. In this behalf, our attention was invited to the decisions of this Court in K.V.Jesudasan v. State of Tamil Nadu, 1989 Crl.L.J. 637; H.C.P.No.1459 of 1999, decided on 23.4.1996; as also the H.C.P.No.1672 of 1998, decided on 17.3.1999, to the last judgment one of us (V.S.Sirpurkar, J.) was a party. In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining authority is under a duty to put those documents before the Advisory Board. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J.637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector & District Magistrate, Tiruhklvkli, 1984 Crl.L.J. 68. The two judgments of the Division Bench of this Court are binding on us and, therefore, it would have to be held that in not placing these relevant and material documents before the Advisory Board there is a breach of duty on the part of the detaining authority and the subsequent detention has thus become illegal.”
(b) The said decision is followed in (2009) 4 MLJ (Crl) 945 (Elizabeth Rani v. State of T.N.) and in paragraphs 10 and 11 it is held thus, “10. So far as the second contention that there was a show cause notice which was followed by a reply were not actually placed before the Advisory Board is concerned, it is not disputed by the State that actually the show cause was issued and following the same, a detailed reply was given by the detenu on 6.1.2009 but they were not actually placed before the Advisory Board. Paragraph 3 of the counter filed by the State reads as follows:
“The show cause notice was issued on 19.12.2008 i.e., after the issue of the detaining order and hence not relied upon for passing detention order. The show cause notice is part and parcel of the adjudication proceedings which is quasi- judicial in nature and it issued without prejudice to the action under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974). The proposals in the show cause notice nowhere deviates from the sponsoring authority's stand before the detaining authority that the watches are liable for confiscation and do not interfere with the detention order. During the State Advisory Board proceedings, it was open to the detenu to place on record any material in his support including Show Cause Notice dated 19.12.2008 and his reply dated 6.1.2009. The fact that the Honourable State Advisory Board also did not call for any further information from the Government as provided under clause of Section 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 shows that the Honourable State Advisory Board was convinced of the actions against the detenu. Therefore, it may be seen that the contentions of the petitioner are frivolous in nature. Hence, the allegations are denied.”
11. A reading of the above paragraph of the counter would clearly indicate that according to the State, a show cause notice was sent and a reply was received and they need not be placed before the Advisory Board in fact they were actually not placed also. As far as the contention that whether it is necessary to place the show cause notice and the reply sent by the detenu or not, this Court had occasion to consider this fact in the judgment Rajeswari v. Joint Secretary to Government (supra) in HCP.No.1444 of 1999 wherein their Lordships have held as follows:
“In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining authority is under a duty to put those documents before the advisory Board. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J.637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector & District Magistrate, Tiruhklvkli, (1984) Crl.LJ. 68. The two judgments of the Division Bench of this Court are binding on us and therefore, it would have to be held that in not placing these relevant and material documents before the Advisory Board there is a breach of duty on the part of the detaining authority and the subsequent detention has thus become illegal.”
This Court is unable to see any reason to deviate from this decision taken by this Court following the earlier judgment. It is a case where those documents have been considered to be relevant and material. Though the documents came into existence subsequent to the passing of the order of detention, so long as it is considered as relevant and material, the authorities are duty bound to place those documents before the Advisory Board but they have not done so. Under such circumstances, the detention order has got to be declared illegal.”
Not placing the show cause notice and reply, which are also relevant documents for consideration by the State Advisory Board, is a material irregularity/illegality committed by the respondents. Therefore the detention order confirmed on 12.10.2011, without placing the relevant documents before the State Advisory Board has vitiated the order of confirmation.”
10. The next ground of attack for consideration is delay in execution of the detention order dated 4.11.2010, which was executed only on 22.8.2011. From the affidavit filed and the records produced it is evident that the detenu was arrested on 10.7.2010 and was released on bail on 16.7.2010 on condition to report before the Superintendent of Customs, Prosecution (Air), Chennai, and the detenu also appeared before the said Officer in compliance of the bail order till it was relaxed on 4.9.2010 and also appeared before the Court on every hearing date i.e, on 6.4.2011, 20.4.2011, 26.4.2011, 4.5.2011, 12.5.2011, 21.6.2011, 14.7.2011, 28.7.2011 and on 22.8.2011. On 13.8.2010 the detenu filed application for relaxation of the bail condition imposed. The said application was not opposed even though counter affidavit was filed. In the counter affidavit filed, which is found at page No.147 of the booklet, it is stated that the detenu was appearing before the Superintendent of Customs daily and the condition may be modified givig direction to the detenu to appear as and when required. The condition was also relaxed by the learned Additional CMM, EO-II, Egmore, Chennai-8, by order dated 4.9.2010 to appear before the respondent office on every first working day of the English Calendar month at 10.00 a.m. and sign.
11. From the above said facts it is evident that the detenu was appearing before the Superintendent of Customs daily until the condition was relaxed and before the Court on each hearing date as stated supra. Therefore, the contention raised in the counter affidavit that the accused was absconding from the date of detention, that was from 4.11.2010 till he was arrested on 22.8.2011, is contrary to the Court records and the stand taken by the respondent before the Criminal Court in not opposing the relaxation of the condition imposed.
(a) Similar issue was considered by the Supreme Court in the decision reported in 2000 SCC (Crl) 411 : (2000) 2 SCC 360 : 1999 (7) Scale 274 (A.Mohammed Farook v. Joint Secretary to Government of India). In the said judgment the delay of 40 days in executing the detention order having not been satisfactorily explained, the detention order was held vitiated. In the said case also the detenu appeared before the Court of Additional CMM, Madras on 25.2.1999 as well as on 25.3.1999. Despite such opportunities, the detaining authority nor the executing agency as well as sponsoring authority were not diligent in serving the detention order and the Honourable Supreme Court set aside the detention order against the detenu, who was also detained under Section 3(1)(i) of the COFEPOSA Act, 1974.
(b) The above said decision was followed by this Court in H.C.P.No.2380 of 2010 order dated 24.8.2011. In the said case the detention order passed on 11.10.2010 was executed on 13.12.2010 and in the dates in between, the detenu was appearing before the Additional CMM, EO-II, Egmore, Chennai-8 for satisfying the conditions imposed in the bail order. The said delay in executing the detention order was found as a vitiating factor and this Court set aside the detention order on that ground, including other grounds. (c) Same is the view taken by the Honourable Supreme Court in the decision reported in 1998 SCC (Crl) 1534 (SMF Sultan Abdul Kader v. Joint Secretary to Government of India).
(d) In 1999 SCC (Crl) 498 (Manju Ramesh Nahar v. Union of India) the delay of more than one year in arresting the detenu on the vague explanation that the detenu was absconding was held as a vitiating circumstance and the detention order was set aside.
(e) The Kerala High Court in the decision reported in (2000) MLJ (Crl) 575 (Vol.XLIV) (Assia v. State of Kerala) held that if there is unreasonable delay between the date of detention and the date of arrest, which is not satisfactorily explained, the order of detention can be set aside. (f) Same is the view taken by the Kerala High Court in the decision reported in 2004 (2) KLT 1094 (Lekha Nandakumar v. Government of India).
12. Applying the above cited decisions to the facts of this case, we are of the view that the detention order passed against the detenu cannot be allowed to stand as there are unreasonable and unexplained delay in execution of the detention order dated 4.11.2010 till 22.8.2011 and on the ground of not placing the relevant documents before the State Advisory Board/Confirming Authority.
13. As we are setting aside the detention order on the above two grounds, we are of the view that the other grounds raised by the petitioner need not be gone into.
14. In the result, the habeas corpus petition is allowed. The detention order dated 4.11.2010 is set aside. The detenu is ordered to be set at liberty forthwith, if his detention is not required in any other case. Connected M.P.No.1 of 2011 is closed.