| SooperKanoon Citation | sooperkanoon.com/903949 |
| Court | Chennai High Court |
| Decided On | Sep-03-2010 |
| Case Number | Habeas Corpus Petition No.2227 of 2009 |
| Judge | M.SATHYANARAYANAN, J |
| Appellant | Abdul Rahman S/O Rahim. |
| Respondent | The State of Tamilnadu, the Union of India, and anr |
| Appellant Advocate | Mr.S.Palanikumar, Adv. |
| Respondent Advocate | Mr.Babu Muthumeeran; Mr.S.Udayakumar, Advs. |
| Cases Referred | G.Balaji vs. State of Tamil Nadu |
2. The facts necessary for the disposal of this Habeas Corpus Petition are as follows:-
According to the petitioner, the detenu came from Singapore by flight and arrived at Anna International Airport, Chennai on 8.10.2009. On deboarding of the plane, he went to Customs area. The officials attached to the Directorate of Revenue Intelligence (DRI), had intercepted him as if he brought electronic goods and gold in excess value, though the detenu has brought lesser value of the goods.
3. It is further stated by the petitioner that without giving sufficient opportunity to the detenu to make proper declaration before the Customs Officers, and without taking into consideration, the total value of the goods declared by the detenu as Rs.60,000/-, the officers assessed the value of the goods approximately at Rs.14,00,484/-.
4. It is further alleged by the petitioner that DRI officials had obtained statement from the detenu 8.10.2009, as if he brought the goods for commercial purpose and arrested him on 9.10.2009. The detenu was produced before the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai on 9.10.2009 for the purpose of remand and at that time, the detenu was not in a position to make a complaint of ill-treatment due to the warning given by the officials. On remand, the detenu was sent to judicial custody up to 23.10.2009 and later on, on the request made by the Department, the period of remand was extended up to 6.11.2009.
5. The detenu moved an application for bail before the lower Court and he was enlarged on bail vide order dated 24.10.2009. The detenu had executed necessary sureties and came out on bail and while he was complying with the conditions imposed by the lower Court, the order of detention came to be passed on 19.11.2009 by the first Respondent and the same was executed on 20.11.2009 and in pursuant to the same, the detenu was taken in to custody and at present, he is lodged at Central Prison, Puzhal, Chennai.
6. The petitioner would also state that the conditions for bail were also modified and the Detaining Authority in spite of aware of the same, has not taken into consideration the said vital aspect. It is also the specific case of the detenu that in confession statement given before the officers on 8.10.2009 were retracted and the application for bail filed by him before the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai and the said aspect has also not taken into consideration by the Detaining Authority while clamping the order of detention. The petitioner would further urged that the material documents such as Circular issued by the Central Government under the Customs Act and other documents which form the basis for the Detaining Authority to arrive at a subjective satisfaction/conclusion to detain the detenue, have not been supplied to the detenu in spite of his specific request in writing and the representation dated 11.11.2009 sent by the Advocate appearing for the detenu to the adjudication authority, and the Compounding Authority namely Chief Commissioner of Customs, has also not placed before the Detaining Authority.
7. It is further contended by the petitioner that on receipt of pre-detention representation dated 22.10.2009 submitted to the Honble Minister for Law, Government of Tamil Nadu, and para wise remarks were called for and the said remarks have not been supplied to the detenu along with the grounds of detention.
8. The sum and substance of the case of the petitioner is that the relied upon documents sought for by the detenu so as to enable him to make an effective and detailed representation have not been supplied to him in spite of his request. Some material documents have also not been placed before the Detaining Authority and therefore, the impugned order of detention is vitiated and liable to be quashed.
9. The first Respondent has filed a counter stating that on the basis of specific intelligence, the detenu who was arrived by Jet Airways Flight from Singapore on 8.10.2009 was intercepted while he was proceeding to Customs table No.14 in the Customs arrival hall with his Customs declaration. The detenu in the baggage declaration, had declared that the value of the goods brought by him from Singapore is worth about Rs.60,000/-. Search was made in the two checked in baggages and a hand baggage brought by the detenu and they found to contain electronic goods in commercial quantities and assorted gold jewellery items also found in the hand baggage along with electronic goods.
10. It is further stated by the first Respondent the electronic items were valued by adopting the purchase price in Singapore Dollars reflected in the invoices viz., M/s. Venki Enterprises Private Limited, Singapore and M/s. Pawa Brothers Trading Private Limited, Singapore, both dated 7.10.2009 found in possession of the co-passenger, who had traveled in the same flight along with the detenu. Wherever prices of electronic goods mentioned in the Annexure to the mahazar were not available, the prices were determined by referring to OS registers with the assistance of Customs Officers and by looking at values from the internet after giving due abatement towards Customs duty and profit margin. The detenu was also shown a range of prices downloaded from the internet and the officers adopted least of the said range of prices so available and the detenu agreed to the same.
11. As regards the gold jewellery found in possession of the detenu, it was valued by one B.Mohan Achari, Government of India Certified Gems Consultant (Gold Smith) and he valued the gold weighing 219 grams with purity of 22 Carat at Rs.3,24,558/- at the market value rate of Rs.1482/- per gram.
12. The first Respondent would further state in the counter that the detenu gave a statement under Section 108 of the Customs Act 1962 before the Senior Intelligence Officer, DRI, Chennai, wherein, he has stated that he is having Indian Passport issued at Chennai which is valid upto 26.7.2019 and that about four years back he started going to Foreign Countries viz., Singapore, Hong Kong and so far he has made 20 trips and each trip he carried flowers and sold the same in shops known to him and earned money and on return from Foreign Countries, he brought electronic goods and sold at Burma Bazaar, Chennai.
13. Likewise, the detenu went to Singapore on 6.10.2009 and stayed there for three days wherein he met one Raja and he in turn gave electronic goods and gold jewellery and asked him to give them to the particular person who will be waiting outside the Airport and the said person will identify the detenu and after collecting the goods from the detenu, he will pay a sum of Rs.3,000/- and accordingly the detenu brought the above said goods by concealing it in the form of two packets in his hand bggage and also not making proper declaration and the subsequent valuation by the officials revealed that he brought the goods valued at about 14,00,484/- and whereas he made a declaration valued at about Rs.60,000/- only.
14. It is further stated by the first Respondent that as per the Circulars of Central Board of Excise and Customs No.29/2000 dated 11.04.2000 and 9/2001 dated 22.02.2001, import of goods in commercial quantities by a passenger would not be permissible within the scope of the baggage rules even on payment of baggage rate of duty on the ground that such goods brought by a short visit passenger do not constitute a bona fide baggage and have to be confiscated by imposing appropriate penalties so as to offset the margin of profit and to act as a strong deterrent against repeat offences and that declaration is a condition precedent and mis-declaration or non-declaration is violation of the said condition making the goods prohibited goods.
15. It is further stated that at the time of search, the detenu was not in possession of any documents such as invoices/cash bills showing the purchase value and as per his confession statement, the goods in question were given by one Raja at Singapore for the purpose of delivery to a particular person at Chennai who on receipt of it will pay a sum of Rs.3,000/- to the detenu.
16. As regards the contention with regard to the retraction of the statement and obtained by the first Respondent, the first Respondent would submit that the order of the Court granting bail with conditions was placed before the Detaining Authority who on consideration of the same, has thought fit to detain the detenu under COFEPOSA Act. As far as the reliance on bail is concerned the first Respondent would submit that the said order cannot have any bearing on the factual position about the abetting in the smuggling of goods on the part of the detenu.
17. It is a specific stand of the first Respondent that all the documents relied on by the Detaining Authority were supplied to the detenu under acknowledgement.
18. With regard to the disposal of representations, the first Respondent would submit that a detailed reply was given to the detenu for his representations dated 2.12.2009 and 27.1.2010 vide Government letters dated 18.12.2009 and 15.02.2010 and the replies were also acknowledged by the detenu on 19.12.2010 and 16.02.2010 respectively.
19. In so far as the representation dated 11.11.2009 said to have been sent by the detenus counsel to the adjudicating authority and the Compounding Authority, the Sponsoring Authority was not aware or made aware of any such letter at the time of passing the detention order or before the meeting of the Advisory Board.
20. In so far as the seizure of the passport of the detenu and the possibility of the detenu indulging in similar kind of offences in future, the first Respondent in paragraph 15 of the counter, has stated that the detenu has disclosed that he has been making regular visits abroad for bringing goods as carrier of third parties for monetary consideration and on one such occasions, the goods brought by him were seized and released on payment of fine and penalty. The first Respondent would further state that the possibility of escaping from the country by illegal channel by the detenu cannot be ruled out and hence the order of detention was clamped on him. Therefore, for the said reasons, the first Respondent prayed for dismissal of the Habeas Corpus Petition.
21. The second Respondent has also filed its counter dealing with specifically the representation dated 2.12.2009 submitted by the detenu in Tamil to the COFEPOSA Unit, Ministry of Finance, Department of Revenue, New Delhi. After calling for translation copy of the representation from the first Respondent, it was rejected on 15.12.2009 and intimation in this regard was also sent to the detenu vide Memorandum dated 16.12.2009.
22. Mr.S.Palanikumar, learned counsel appearing for the petitioner has raised the following grounds for the quashment of the impugned order of detention:-
(a) The documents relied on by the Officers in consultation with Airport Customs Officers such as OS Register, values downloaded from the internet in respect of articles, have not been supplied to the detenu and therefore, the detenu has been deprived of his right to make an effective and meaningful representation for revocation of the order of detention.
(b) The detenus representation dated 27.1.2010 requesting for supply of documents relating to the valuation, have not been supplied. The Detaining Authority had relied upon the documents i.e. Notification No.31/2003 dated 1.3.2003 and the same has not been supplied to the detenu and the said notification has also been placed before the Detaining Authority while passing the order of detention and hence the subjective satisfaction of the Detaining Authority is based upon the non-existing materials and the same would amount to extraneous consideration.
(d) The parawice remarks submitted by the Sponsoring Authority to the pre-detention representation dated 22.10.2009, have not been supplied to the detenu along with the grounds of detention and as such the detenu could not make a meaningful, proper and effective representation.
(e) The impounding of passport of the detenu, has not been taken into consideration by the Detaining Authority while arriving at the subjective satisfaction that he would indulge in such kind of activities in future.
(f) The non consideration of the application for compounding submitted by the detenu and the report by the Sponsoring Authority would also vitiate the order of detention.
(g) The legal assistance sought for by the detenu at the time of his personal hearing before the Advisory Board has been unjustly rejected.
(h) Though the bail application containing retraction was available prior to the detention order the Detaining Authority, the said material fact has not been reflected in the grounds of detention and non-consideration of the same would also vitiate the order of detention.
(i) The detenu is incarcerated for the past 8 months in pursuant to the impugned order of detention and therefore, he is to be released by quashing the order of detention.
23. Per contra, Mr.Babu Muthumeeran, learned Additional Public Prosecutor has drawn the attention of this Court to the averments made in the counter affidavit filed by the first Respondent and also the typed set of documents and the file maintained by the first Respondent with regard to the order of detention and would submit that the Detaining Authority after taking into consideration entire materials available on record and after due and proper application of mind to it, has rightly passed the order of detention. The learned Additional Public Prosecutor would further submit that the representations submitted by the detenue were considered and disposal has been given within a short span of time and replies have also been communicated to the detenu without any wastage of time. Since the detenu was found to be regularly indulging in the above kind of activities, and in respect of his last voyage he brought the goods given by one Raja at Singapore only for the purpose of handing over to a third party on payment of commission of Rs.3,000/-, the order of detention was rightly clamped on him.
24. It is vehemently contended by the learned Additional Public Prosecutor that in view of the activities of the detenu, the country is losing its revenue which is ultimately affecting the public at large and consequently the economy of the country is also getting affected and therefore, prayed for the dismissal of this Habeas Corpus Petition.
25. This Court has carefully considered the submissions made by the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor and also perused the materials available on record in the form of typed set of documents and the file maintained by the first Respondent.
26. Ground Nos.(a), (b) and (c): As regards ground No.(a), paragraph No.(iv) of the order of detention reads as follows:-
(iv) The officers of DRI, Chennai valued the electronic items by adopting the purchase price in Singapore Dollars reflected in the Invoice No.007/OCT/2009 dated 7.10.2009 of M/s.Venki Enterprises Pvt. Ltd., Singapore and No.90105064 dated 7.10.2009 of M/s.Pawa Brothers Trading Pvt. Ltd., Singapore which were found in the possession of Thiru.Kattubawa Abdul Sathik a co-passenger who had traveled in the said flight. The officers of DRI, Chennai determined the values of the electronic items wherever prices were not available by referring to OS register with the assistance of Customs Officers and by looking at the values from the internet after giving due abatement towards Customs duty and profit margin. You were shown a range of prices downloaded from the internet. The Officers of DRI, Chennai adopted least of the said range of prices so available and the same were shown to you and you agreed to the same. The items of gold jewellery found in two small paper packets were assayed by Thiru B.Mohan Achari, Government of India certified Gems Consultant (Gold Smith Licence No.109/85) and certified to be of 22 Carat gold weighing 219 grams. The electronic goods and the gold jewellery were seized under the mahazar along with your travel documents. The total value of the electronic goods is Rs.10,75,926/- (CIF) and the market value of the gold jewellery is Rs.3,24,558/- and hence the total value of the goods seized is Rs.14,00,484/-.
27. The detenu vide his representation dated 27.1.2010 submitted before the State Advisory Board (COFEPOSA) at the time of his personal hearing, has raised the ground that in respect of the seized gold jewellery on what basis the valuation has been done, has not been furnished to him and in fact, he asked for the documents on the basis of which, the valuation of the articles brought by him have been done. The detenu also further requested for the furnishing of Circular dated 1.3.2003.
28. In response to the said request, a reply dated 15.2.2010 has been sent to the detenu which was also served on him. The reply would indicate that the goods in question were judicially valued based on the invoices found in possession of another co-passenger who traveled in the same flight and wherever the price of electronic goods were not available, the prices were determined by referring to OS Registers with the assistance of the Customs Officers and by looking at the values from internet after giving due allowance towards abatement towards Customs duty and profit margin. The gold jewellery was also assayed by a certified Goldsmith, who valued the same as per the market value and the invoices which were found in possession of the co-passenger. The relevant page of the OS Register and the certificate of the Goldsmith, have also been furnished to the detenu and range of price downloaded from the internet were also shown to the detenu and he also agreed to the same and therefore, the same were adopted while arriving at the valuation.
29. As regards non-furnishing of Customs Notification No.31/2003 dated 1.3.2003, in the reply it has been stated that as per the said notification, a passenger of Indian Origin or a passenger holding a valid passport issued under the Passports Act, 1967 who is coming to India after a period of not less than six months stay abroad is eligible to import gold in any form including tola bars and ornaments, but excluding ornaments studded with stones or pearls on payment of Customs duty at the appropriate value. The detenu being a short visit passenger is not eligible to import jewellery by availing the benefit of the said notification. It is further stated in the reply that the detenu cannot feign ignorance of the provisions relating to import of baggage as he has traveled abroad quit number of times and admittedly bringing goods in commercial quantities. Since the said notification being a legal provision, the detenu is supposed to aware of the same as he has been making regular visits to abroad. Thus, the reply proceeds on the footing that the detenu cannot claim any prejudice in this regard.
30. It is to be pointed out at this juncture the detenu gave a statement dated 8.10.2009 under Section 108 of the Customs Act at the Office of the DRI, Chennai, wherein, he has stated among other things that he has visited foreign countries about 20 times carrying flowers from the country of his origin and after selling the same, used to buy electronic goods and bring it back to India and sold the same to traders at Burma Bazaar, Chennai and he has also paid Customs duty and cleared the goods. In so far as the seizure of articles on 7.10.2009, in the said statement the detenu has stated that while he was abroad visited to Singapore, he met one Raja and he gave him electronic goods and gold jewellery and asking him to give the same to a person who will be waiting outside the Airport and who would identify the detenu with identical policies given by Raja and the said person on collecting the goods from the detenu, will pay a sum of Rs.3,000/-. The detenu would further state in the said statement, that on arrival he declared the value of the goods at Rs.60,000/- and when he was intercepted by the officers and searched, it was found that the detenu had concealed two packets of gold jewellery and also other electronic items which on valuation, was found worth Rs.14,00,484/-.
31. A perusal of the booklet supplied to the detenu would disclose the Assistant Commissioner of Customs (Airport), has passed an order against the detenu ordering confiscation of the goods valued about 35,000/- with an option to pay a fine of Rs.17,500/- within a stipulated time and also penalty of Rs.5,000/- was also imposed.
32. The detenu challenging the vires of the said order, dated 27.3.2009, made in O.S.No.708 of 2009 passed by the Assistant Commissioner of Customs (Airport), has preferred an appeal to the Commissioner of Customs (Appeals). The said appeals along with other appeals were taken up for disposal by the said official and vide order dated 28.5.2009 the following order came to be passed:- It is not in dispute that the appellants did not make a true declaration of the contents as per Section 77 of the Customs Act, 1962. As the goods brought by the appellants are commercial goods in trade quantity, they do not constitute bonafide baggage in terms of Section 79 of the Customs Act, 1962 read with Para 2.20 of the Foreign Trade Policy in force. As regards the contention that they were not given the benefit of free allowance, it is pertinent to note that for claiming free allowance, the goods should form part of the bonafide baggage of the passenger and in these cases the goods do not qualify as bonafide baggage, therefore, the denial of free allowance by the lower authority is correct. As regards the contention of valuation, it is seen that the valuation is adopted as per norms and methods prescribed for similar goods. In this regard, it is also seen that the cited appeal order does not directly become applicable to these cases. Moreover, during the personal hearing, before the lower authority the appellants have admitted that they brought the goods for sale in the market and to make profit out of it. Therefore, the orders of the confiscation and imposition of penalty by the lower adjudicating authority in all these cases are unassailable.
8. It is felt that redemption fine, which is imposed to wipe out the profit margin, is on the higher side. Even the Joint Secretary, Govt. of India, Ministry of Finance held similar view in his Order No.212 to 221/07 dated 27.04.2007 in the case of Jabbar Ilayas and Others and reduced the redemption fine. As the appellants are repeated offenders the penalty imposed is not reducible. Therefore, in the interest of justice, the redemption fine is accordingly reduced as enumerated below:-
Sl.No.
Name of the Appellant (S/Shri) Redemption Fine (Rs.)
1. R.Basheer Ahamed 14,500/-
2. Ferozkhan Mohamed Safi 11,500/-
3. Munirathinam Babu 15,000/-
4. Kader Khan K.M. 2,000/-
5. A.W.Kabeer 46,000/-
6. Kalanther Abbas 25,000/-
7. Shamiullah 58,000/-
8. S.Basheer Ahmed 57,000/-
9. Feroz Khan Abdul Rahman 11,500/-
10. Abdul Rahman 9,000/-
9. The appeals are disposed of in the aforesaid terms.
33. A perusal of the order would disclose that before the lower authority, and at the time of personal hearing the detenu had admitted that he brought the goods for sale in the market and to make profit out of it. The appellate authority on taking into consideration the said aspect, has confirmed the orders of confiscation and imposition of penalty. However, the appellate authority also found that the appellants therein including the detenu are repeated offenders and therefore given a finding that the penalty imposed is not reducible. The appellate authority on taking into consideration the interest of justice, has reduced the redemption fine from Rs.17,500/- to 14,500/- in so far as the detenu is concerned and disposed of the appeal accordingly.
34. The learned counsel appearing for the petitioner who is the brother of the detenu is unable to throw any light as to whether any further appeal has been preferred or further proceedings have been taken challenging the vires of the said order. In fact, the representation submitted by the detenu on 27.1.2010 which admittedly came into being subsequent to the above said order passed in the appeal, has not whispered anything about the said orders passed in the appeal. However, the fact remains that the detenu in his representation dated 27.1.2010 has specifically requested for furnishing of certain documents which included the materials based on which, revaluation of articles brought by him, has been done. Now the question is as to the effect of non-furnishing of those documents on the vires of the detention order.
35. Similar issue arose for consideration before this Court in the following decisions:-
1.(2007)2 MLJ (Cri.) 274 (DB) Roja Begam vs. State of Tamil Nadu rep. by Secretary to Govt., Public (SC) Department, Chennai-9 and another.
2.(2007) 2 MLJ (Cri.) 1467-Dhanushu @ Vijay vs. State of Tamil Nadu .
36. In (2007)2 MLJ (Cri.) 274 (DB) Roja Begam vs. State of Tamil Nadu rep. by Secretary to Govt., Public (SC) Department, Chennai-9 and another, like the present case, valuation has been done with the assistance of Customs Officer, internet etc., and they were relied upon materials and in spite of the detenu requested for furnishing of those materials, they were not furnished. A Division Bench of this Court in the said decision, has held that in spite of the specific request to furnish those documents, the reply mechanically rejecting the same cannot be sustained and quashed the order of detention on that ground also. Similar view has been taken in the subsequent decision reported in (2007) 2 MLJ (Cri.) 1467-Dhanushu @ Vijay vs. State of Tamil Nadu (cited supra).
37. In the case on hand a perusal of the impugned order of detention would disclose that the Detaining Authority has placed reliance upon the said notification as well as the price downloaded from the internet with regard to range of price and in spite of the specific request made by the detenu vide his representation dated 27.1.2010 submitted in personal before the Advisory Board, the said documents have not been furnished. In the considered opinion of this Court, non-furnishing of those documents in spite of the specific request made by the detenu, had deprived the detenu from submitting an effective representation for revoking the order of detention.
38. The next ground urged by the learned counsel appearing for the petitioner that the remarks submitted by the Sponsoring Authority to the Detaining Authority, in spite of his representation dated 27.1.2010, have not been furnished to the detenu and therefore, he is put to prejudice. In the considered opinion of this Court the said submission lacks merit and substance. A cursory perusal of the files maintained by the first Respondent would disclose that the detenu has submitted his representation dated 27.1.2010 in person to the Advisory Board and the same was forwarded by the first Respondent to the Additional Director General, Directorate of Revenue Intelligence, Chennai-17 vide letter dated 29.1.2010.
39. The Directorate of Revenue Intelligence, Chennai-17, had submitted its Para war remarks to the first Respondent vide their letter dated 8.2.2010. The first Respondent by taking into consideration the said remarks, had sent a detailed reply to the detenu vide their letter dated 15.2.2010 and it was also acknowledged by the detenu on 16.2.2010. A perusal of the reply dated 15.2.2010 would disclose that careful consideration has been made to the representation and in view of the same, this Court is of the opinion that the detenu is not put to prejudice on account of non-furnishing of Para war remarks. It is also not necessary to furnish Para war remarks to the detenu, as it is an internal correspondence between the first Respondent and the Directorate of Revenue Intelligence and non-furnishing of the same, would not vitiate the detention order. Therefore, the said ground raised on behalf of the detenu, is rejected.
40. The next ground of attack is with regard to the impounding of passport and in this regard submission has been made to the effect that once the passport is impounded, the detenu cannot go abroad for the purpose of indulging in smuggling activities and hence subjective satisfaction arrived at by the Detaining Authority is vitiated on account of placing reliance upon the non-existing materials. The said ground is liable to be upheld for the following reasons:-
41. The Detaining Authority while passing the impugned order of detention, has not taken into consideration of the fact that in the remand application dated 9.10.2009 signed by the Senior Intelligence Officer, Directorate of Revenue Intelligence, Chennai-17, (page No.43 of the Booklet) and in paragraph No.11 of the said application, it has been clearly stated that the Indian Passport of Shri Basheer Ahmed (detenu) bearing No.Z1760538 issued at Chennai on 20.7.2009 is submitted herewith". The said vital aspect has not been taken into consideration by the Detaining Authority while passing the impugned order of detention on 19.11.2009 even though the said document has also been produced before him while passing the order of detention. No doubt in the counter affidavit filed by the first Respondent it has been averred that even though the passport of the detenu had been recovered, the possibility of escaping from the country by illegal channels cannot be ruled out. The subjective satisfaction of the Detaining Authority on that aspect, is not found place in the order of detention. In this connection, it is useful to refer to the order dated 3.12.2002 made in H.C.P.No.735 of 2002 Izadeen v. State of Tamil Nadu and others. In paragraph No.19 of the said order it has been held as follows:- 19. Therefore, the fact of the impounding of the passport on the detenu deprived of the passport was undoubtedly a very relevant fact. What we have before us is, only the fact that the passport was retained in the judicial custody. That in our opinion, would not be taking into consideration the result of the deprivation of the detenu of his passport. In our opinion, the concerned authority should have been more elaborate and should have shown that it had applied its mind to this particular circumstance. When we see paragraphs 5 and 6 on page 7 of the detention order, all that is stated is that though the petitioner was in custody, he was likely to be released on bail and if he was released on bail, he was bound to indulge in such activities and that further recourse to normal criminal law would not have the desired effect to effectively prevent him from carrying on with these activities. Therefore, the most relevant fact that weighed with the detaining authority to take the decision to detain was the likelihood of the petitioner to be released on bail. At the same time, when the backdrop of the detention was a patternised smuggling activity and the deprivation of the passport was bound to put a complete stop to that pattern, it was imperative, in our opinion, for the detaining authority to take that fact also into consideration and there is nothing in the grounds that that fact has been taken into consideration. Therefore, in our opinion, in the facts of this case, the retaining of the passport was a paramount importance and it was liable to be taken into consideration and not having taken that into consideration, the detaining authority has failed to take into consideration the very material fact, which has affected his thinking process and ultimately the decision. We hasten to add that we should not be taken to mean that in all the cases where the passport is impounded, the mentioning about the same is a must, we are particularly taking this view, in view of the patternised smuggling activity in this case. Even a cursory look at the grounds would suggest that the detaining authority has not applied its mind to this vital fact of the deprivation of the detenu from his passport. In that, the detention order suffers and is vitiated.As the Detaining Authority failed to take into consideration the impounding of passport even prior to the passing of detention, in the considered opinion of the Court, the subjective satisfaction on his part, has not been properly arrived. Therefore, on this ground also the impugned order of detention is vitiated.
42. As regards non-consideration of application for compounding submitted by the detenu, in paragraph 14 of the reply dated 15.2.2010 sent to the detenu, the first Respondent has taken a specific stand that no such application has been received by the Commissioner of Customs and no recommendation has also been emanated from him. In the absence of any such material, in the considered opinion of the Court, the said ground urged by the learned counsel for the petitioner is unsustainable.
43. The detenu also sought legal assistance at the time of his appearance before the Advisory Board and the said ground has also been raised by the detenu in his personal representation dated 27.1.2010 and the same was dealt with by the first Respondent in paragraph No.17 of the reply dated 15.2.2010 wherein it has been stated that by virtue of Section 8 (e) of the COFEPOSA Act, 1974, it is not open to the detenu to have a right of legal assistance at the time of his appearance before the Advisory Board and on request, he can have an assistance of his next friend who is not a lawyer. In the teeth of the said specific provision, it is not open to the detenu to have a right of legal assistance through a lawyer at the time of his appearance before the Advisory Board and therefore, the said ground is liable to be rejected.
44. Non consideration of retraction statement: As per the grounds of detention, the detenu gave a confession statement under Section 108 of the Customs Act on 8.10.2009 and according to the learned counsel appearing for the petitioner, the said confession was retracted at the time of filing of the bail application dated 12.10.2009 in Crl.M.P.No.2082/2009. The Directorate of Revenue Intelligence, has filed a counter in the said bail application wherein it has been stated that the detenu was enquired under Section 108 of the Customs Act and he voluntarily gave a statement in his own in writing in Tamil setting out the facts and circumstances under which he has acted and even at the time of remand, he has not made any complaint to the jurisdictional Magistrate. It is further stated in the counter that the retraction made in the application for bail is nothing but an after thought motivated to make out a point for bail only.
45. It is pertinent to point out at this juncture that the Additional Chief Metropolitan Magistrate E.O.I, in charge, Chennai-8, while enlarging the detenu on bail vide order dated 24.10.2009, has taken into consideration the fact of the detenu being in judicial custody for the past 16 days and passed the following order:- 5. From the perusal of the records, it is clear that the petitioner/accused is in judicial custody for the past 16 days. In this case the petitioner/accused had been arrested and his voluntary statement has been recorded. The goods brought by the petitioner/accused were also recovered from him under cover of mahazar. Hence major part of the investigation had been completed. Further the witnesses are only official witnesses. Hence, the tampering of the witnesses does not arise.
6. Hence, the petitioner/accused is ordered to be released on bail on his executing a bond for Rs.25,000/- with two sureties for like-sum each and with a condition to stay at Chennai and sign before the respondent daily at 10.00 A.M. and 5.00 P.M. until further orders and to appear before this Court on 06.11.2009 and on subsequent hearing dates.In fact in paragraph No.5 of the order, the retraction of confession made by the detenu and stated in paragraph No.8 of his application for bail, has not been taken into consideration.
46. A perusal of the impugned order of detention would disclose that the Detaining Authority has not arrived at the subjective satisfaction solely based upon the statement under Section 108 of the Customs Act and according to the Detaining Authority, there are other materials available against the detenu to detain him under COFEPOSA Act. Therefore, in the considered opinion of the Court, the non-consideration of the retraction statement, would not vitiate the order of detention.
47. The period of incarceration by way of preventive detention over 8 months in pursuant to the impugned order of detention cannot be the sole ground to quash the order of detention.
48. Decisions reported in AIR 1991 (SC) page 1375- K.Satyanarayan Subudhi vs. Union of India and followed in 2007(1) MLJ (Cri) page 663-G.Balaji vs. State of Tamil Nadu, relied on by the learned counsel appearing for the petitioner have not laid down any ratio on that point. As long as the Detaining Authority is having power to detain a particular person for a particular period under Section 3(1)(ii) of the COFEPOSA Act 1974, it cannot be said that the long period of incarceration by way of preventive detention, would vitiate the said order.
49. Hence, for the reasons assigned in paragraphs 37, 40 and 41, the impugned order of detention is liable to be quashed.
50. In the result, the HCP is allowed and the order of detention dated 19.11.2009 passed by the first Respondent, is quashed. The detenu is ordered to be set at liberty forthwith unless his custody/detention is required in connection with any other proceedings/case.
51. Before parting with the case, this Court would like to observe that the Detaining Authority before passing an order of detention shall take into consideration all vital factors. Due to non-compliance of the mandatory procedures, the economic offenders are allowed to go scot free which in turn, affect the economy of the country. The concerned authorities are required to take note of the same before passing orders of preventive detention and see to that the orders passed by them are sustained in the event of challenge before the legal forums.