Nagasundaram and anr. Vs. the State Govt. of Tamil Nadu and ors. - Court Judgment

Annoussamy, J.

1. These are two writ petitions referring to the same transactions, which were heard together and are disposed of by this common order.

2. In both the writ petitions, what is sought for is the quashing of the detention orders and the setting at liberty the detenus. In the first writ petition (W.P. No. 11262/88), the name of the detenu is Kamalanathan and it is filed by the father of the detenu. In the second writ petition (W.P. No. 11263/88), the name of the detenu is Gopalakrishnan and it is filed by his wife.

3. Both the detention orders were passed by the State Government on 30-8-1988 under Section 3(i)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing the detenus from engaging in transporting smuggled goods.

4. The facts leading to the present detention are spelt out in detail in the grounds of detention and it is not necessary to extract them here. Summarily stated, on 1-4-1988 the Custom Officers, Madurai, and Director of Revenue Intellegence Officers, Tiruchy, acting on information kept surveillance near the house of one Suryamoorthy, Madurai, at about 6 p.m. Noticing two persons entering the said house at about 7 p.m., the officers also entered the house. Smt. Mangayarkarasi, wife of Suryamoorthy and the two detenus were present in the house. In the course of search, the officers located a secret cavity in the bottom of an alymyrah fixed in the wall. The same was opened by the said Mangayarkarasi with a specially devised key. On examination, the officers found 82 gold bars with foreign markings. There was no valid documents in the possession of Mangayarkarasi for the importation of the said gold bars. Mangayarkarasi gave a statement that the two detenus came to her house at about 7 p.m. on 1-4-1988 and handed over the packets containing the abovesaid foreign gold bars. Kamalanathan admitted in his statement that Gopalakrishnan gave him a packet containing 20 gold bars at about 12.30 p.m. and he delivered it to Mangayarkarasi. He further added that at about 7 p.m., Gopalakrishnan gave him another packet containing 62 gold bars and that the same was also delivered to Mangayarkarasi. Kamalanathan accepted that he accompanied Gopalakrishnan when he carried the abovesaid gold bars. He has also admitted that he had carried gold bars to Suryamoorthy 5 or 6 times earlier. Gopalakrishnan has stated that on 1-4-1988 Narayana Asari gave him 20 gold bars with instructions to deliver them to Suryamoorthy. Gopalakrishnan had further admitted that both of them on nearing the house of Suryamoorthy, Gopalakrishnan followed Kamalanathan at a distance and that when Kamalanathan entered the house of Suryamoorthy, Gopalakrishnan was apprehended by the officers. Gopalakrishnan has also stated that he has utilised Kamalanathan four or five times earlier for this kind of activity and that he has been assisting Narayan Asari in the trade for the past 10 years.

5. Learned counsel for the detenus placed before us the following eight grounds, which are common to both the detenus :

(1) Non-placing and non-consideration of the detailed retraction letter sent by each of the detenu;

(2) Non-consideration by the detaining authority of the letter of retraction sent from jail on 4-4-1988 to the Additional Chief Judicial Magistrate, Madurai, by each one of them;

(3) Non-consideration of the telegram of Mangayarkarasi retracting her statement dt. 3-4-1988, that is to say on the second day after the seizure;

(4) Non-application of mind to different contradictory versions about the course of action of Kamalanathan and Gopalakrishnan as borne out in the documents and in the grounds;

(5) Material contradictions about the number of packets seized;

(6) Non-application of mind regarding the place of seizure, as there is difference regarding the door number between Tamil and English documents;

(7) Difference in number of gold bars between the documents; and

(8) Contradictions in the statements of Narayana Asari's wife Vadivu, i.e. at the time of seizure of the money, she has stated that she did not know anything about the origin thereof, whereas in the statement recorded in the Customs Office, she has stated that the money consisted of the sale proceeds of gold;

6. We shall take up first the first three grounds, which are more or less of the same nature. First ground was taken by the petitioner in W.P. No. 11262 of 1988 in his affidavit in paragraph II(i). In the Counter, it is stated as follows :

'Since the respondent has already considered all the fail petitions filed by the detenu before 4-6-1988, non-placing of detenu's retraction letter dt. 4-6-1988 will not in any way alter the situation.'

The very same ground was taken in W.P. No. 11263 of 1988 in paragraph II(i) of the affidavit and the reply is found in paragraph 18 of the counter and it is in the same words as in the counter filed in W.P. No. 11262 of 1988.

7. The second ground is regarding the non-placing of retraction letter sent from fail on 4-4-1988 to the Additional Chief Judicial Magistrate, Madurai. This ground was taken in W.P. No. 11262 of 1988 in paragraph II(i) and in W.P. No. 11263 of 1988 in paragraph II(i). Reply to the same is found in the counter filed in both the writ petitions in the same pattern and it is as follows :

'The representation sent by the detenu from jail on 4-4-1988 to the Additional Chief Judicial Magistrate, Madurai, was not within the knowledge of the Customs Department until the same was mentioned by the detenu in his representation sent from Central Prison, Madurai, on 26-9-1988. Hence, this document was not placed before this respondent.'

But in paragraph 18 of the counter filed in W.P. No. 11263 of 1988 and in paragraph 17 of the counter in W.P. No. 11262 of 1988, the first respondent has stated that all the bail petitions were duly placed before the first respondent. Therefore, there is vital contradiction between the statements contained in each of the counters between two succeeding paragraphs. Further it is also brought to our notice by the learned counsel for the petitioners that among the documents supplied to the detenus, there is one affidavit of the petitioners in which they have stated that when they were in jail, all their bail petitions have been rejected by the Additional Chief Judicial Magistrate, Madurai and there is a specific reference to the complaint filed being along with the bail petitions filed before the Magistrate on 4-4-1988. Therefore, the statement of the respondent on the counter that the letters of retraction sent to the Magistrate were not available with the detaining authority is entirely untenable.

8. The third ground is non-consideration of the telegram of Mangayarkarasi dt. 3-4-1988. Be it remembered that the seizure took place on 1-4-1988 at the house of Mangayarkarasi and that her statement was also recorded then. That telegram addressed to the Director of Revenue Intelligence, Madras and the Additional Chief Judicial Magistrate, Madurai, is to the effect that Revenue Intelligence and Madurai Customs officials created false records of seizure of gold bars from her house and obtained false statements from her under threat and coercion and that her statements were not voluntary and she prayed for intervention. That telegram appears in the list of documents furnished to the detenus. But there is no reference whatsoever in the grounds of detention to the telegram sent at the earliest point of time by the person from whom gold was seized. This ground was taken by the detenu in W.P. No. 11262 of 1988 in paragraph 4(I)(K) and in W.P. No. 11263 of 1988 in paragraph 4(I)(F). The counter which is in the same terms in both the cases is to the following effect :

'Copy of telegram has been duly supplied to the detenus. The fact that the retraction was made immediately after the occurrence was known to the first respondent. It is a fact that the date was supplied to the detenus, but the copies do not bear the date. The reply sent to Mangayarkarasi as found at page 149 or the Index makes it clear that the telegram was dt. 3-4-1988 and therefore, the fact that the retraction was immediately after the occurrence was known to the first respondent.'

We have now to examine whether the non-supply of the first two documents and the non-reference in the grounds of detention of the third document will vitiate the order of detention or not. The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority. 'Subjective', does not mean capricious but that it may vary from one person to other. It is one possible opinion which any reasonable person can arrive at. 'Satisfaction' denotes the intimate opinion of the person concerned and not the logic conclusion arrived at in accordance with the strict rules of evidence. Such subjective satisfaction has to be arrived at on two points. Firstly on the veracity of facts imputed to the person to be detained and secondly on the prognostication of the detaining authority that the person concerned is liable to indulge again in the same kind of nefarious activities. Of course, the second point depends on the first, but the subjectiveness is higher as regards the second point. Circumstances prevailing at that time in the society may also be taken into account. This is a matter of expediency not subject to judicial review. But, as far as the first point is concerned, the detaining authority which has to form an opinion about the veracity of facts has to take into account all the facts, those which are against as well as those in favour of the person concerned and the approach of the detaining authority should disclose that he has effectively engaged himself into such an exercise. Courts do not have to find out whether the opinion arrived at is sound, but to verify whether the detaining authority has proceeded in the proper manner and approach to apprehend the reality with all the materials at its disposal. In fact, the preventive detention is an exceptional provision in our Constitution. That is why the Constitution has made elaborate provisions and safeguards to prevent abuses of power of preventive detention in Art. 22. More especially, the right of representation given to the detenu under Art. 22(5) and the corollary obligation of the detaining authority to consider such representation show that the detaining authority though passes an order, administrative in form, is in fact exercising a quasi-judicial function while assessing the facts. Now, when we refer to the grounds of detention, it is more in the form of indictments than in the form of an attempt to know the truth about the matter. All the grounds refer only to acts or statements which put the blame on the detenus. There is not a single reference to any documents, which may alleviate the misdemeanour of the detenus. If upon considering such documents also the detaining authority feels that they did not weigh much in the balance, he is perfectly entitled to pass an order of detention. Some minor omission will not vitiate the order, but the total absence of reference of any document available in favour of the person to be detained would be indicative of colourable exercise of power. Therefore, upon reading the detention orders, we are satisfied that the approach of the detaining authority was not the proper one and the learned counsel for the petitioners is right in saying that the orders of detention are vitiated on account of the non-consideration of the bail applications prior to and after being released on bail and non-reference to the telegram of Mangayarkarasi in the grounds of detention.

9. Learned counsel appearing for the prosecution which defended the decision of the detaining authority with tenacity placed before us three decisions to justify the orders, in spite of the defects noted. First one is the decision in State of Gujarat v. Sunil : 1988CriLJ933 in which it was held that it is not necessary to mention the reaction of the detaining authority in reference to every piece of evidence separately. That decision will not have any application to the facts of these cases because the present ones are not cases in which one or two documents have not been referred to in the grounds of detention. These are cases in which as observed earlier, the detaining authority has not at all paid any attention to any materials which could be in favour of the detenus. He has formulated his grounds of detention in the form of determined indictments.

10. The second decision relied upon is the one in-Prakash Chandra v. Commission and Secretary, Government of Kerala : 1986CriLJ786 in which it was held that even if the confessional statements, which were retracted are excluded there are other facts independent of the confession statement which can reasonably lead to the satisfaction, which the authorities have come to. But in that case, as far as the detenu was concerned, there was the fact of seizure of 60 gold biscuits from the suit case of daughter in the presence of the father (detenu) which belonged to the father and admitted by him as belonging to him. But, in the present case, the imputation is that the detenus have served as intermediaries to carry smuggled gold from one person to another. No recovery was made from them. The recovery was made in the house of Mangayarkarasi, when the gold was already well hidden in a cavity. Therefore, the only incriminating pieces of evidence as against the detenus are the statements obtained from the detenus themselves and some others. Therefore, when such statements are retracted, the detaining authority has to consider, whether, in spite of those retractions, the detention order is still necessary or not. Therefore, since the facts are entirely different, this decision also would not be of any help to the respondents

11. The third decision placed before us is an unreported decision by a Bench of this Court, to which one of us was a party, in W.P. No. 2085 of 1987 (K. Praisoody v. State of Madras) dt. 21-1-1988, in which it was held that if one retraction by a detenu is placed before the detaining authority, it is not necessary to place other retractions and that the failure of placing other retractions world not vitiate the order. This decision again would not further the case of the respondents, because in the present case none of the retractions of any one of the two detenus has been placed before the detaining authority. Therefore, we are unable to accept the contentions of the learned counsel for the respondents and we find that the vital materials in this case have not been placed and adverted to properly by the detaining authority, which fact vitiates the order.

12. In view of the conclusion arrived at above, it is not necessary to examine the other grounds raised by the petitioners.

13. In the result, both the writ petitions are allowed and the orders of detention are set aside.

14. Petitions allowed.