J. Abdul Hakeem Vs The State of Tamilnadu and The Union of India

@JUDGMENTTAG-ORDER

1. Aggrieved by the order of detention dated 23.7.2004 made in G.O.No.S.R. 1/853-4/2004 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA Act") the petitioner has filed the above writ petition.

2. As per the impugned detention order dated 23.7.2004, on 16.7.2004, the detenu arrived at Anna International Airport, Chennai from Colombo by Sri Lankan Airlines Flight UL-123, brought electronics goods and other items in trade quantity along with him and misdeclared the same with regard to the nature, quantity and value of the goods in order to smuggle the same without payment of duty. Meanwhile, he got intercepted at the Arrival Hall of Chennai Anna International Airport by the customs authority before whom he made a declaration. At the time of inspection, he was found to be in possession of four numbers of checked-in baggage and a hand baggage and declared the value of the goods as Rs. 1,00,000/-. On examination by the officers, they found huge quantity of electronic goods valued at Rs. 19,92,200/- and seized them under a mahazar. Thereafter, on 17.7.2004, a search was conducted by the Customs Officers, but nothing incriminating was recovered. On the same day, the detenu gave a statement before the DRI officer. In that statement, he stated that he went to Hong Kong on 15.7.2004, stayed at Sushik mansion and purchased the goods with the help of one Latif working in Hong Kong who also arranged for money for the purchase of the goods and brought the same. Based on the above statement, the detenu was arrested and remanded in custody up to 30.7.2004. In the meanwhile, an application for bail was filed on 21.7.2004 before the Additional Chief Metropolitan Magistrate, EO II, Chennai. Immediately on the next day, i.e. 22.7.2004, the detenu lodged a retraction letter before the DRI department. From the above facts of the case, the Government of Tamil Nadu passed the impugned detention order dated 23.7.2004 and the same was executed on 24.7.2004 and grounds of detention and the booklet were served on 27.7.2004. The petitioner submitted his representation on 6.8.2004 both to the State and Central Government and thereafter a representation dated 23.8.2004 to the Advisory Board. The representation of the detenu was rejected by the advisory board on 8.9.2004 and the order of detention dated 23.7.2004 was confirmed on 24.9.2004. Hence the above challenge to the impugned detention order.

3. Mr. B. Kumar, learned Senior Counsel appearing for the detenu challenges the order of detention on two main grounds:

(a) Firstly, Mr. B. Kumar, learned Senior Counsel invited our attention to the grounds of detention, wherein it is mentioned that the detenu obtained a passport bearing No.B.5315177 at Trichy; had gone to Hong Kong and Singapore many times, used to bring foreign goods particularly wrist watches to smuggle the same through green channel and sell them out; that under the old passport, he had travelled about 23 times to Sri Lanka; and that he had travelled four times to Hong Kong via Sri Lanka under the current passport, thus was making foreign travels for bringing foreign goods for sale in India and therefore, the Government was satisfied on the facts and materials mentioned therein that he would indulge in such activities; and that the said passport was also recovered from the detenu under a mahazar. Referring to the above grounds, Mr. B. Kumar, learned Senior Counsel complains that the copies of the said passport was not furnished to the petitioner and hence the impugned order of detention is vitiated. In this regard, the learned Senior Counsel places reliance on the decision of the Apex Court in the judgment reported in Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others, and also the decision of the Full Bench of this Court reported in 2002 (2) CTC 321 (Ansar Ali -vs- State Of Tamil Nadu).

(b) Secondly, the impugned order of detention is vitiated for not furnishing the copies of the following documents viz., Tamil translated copies of the passenger list ( ), boarding pass and the baggage tag ( ( )) and passport ( ) which are referred to in pages 7 to 10(A) in the document book, but the same were not furnished to him, even though the same were specifically requested by the detenu in his representation dated 6.8.2004. In this regard, reliance was placed on the decision of the Apex Court in the judgment reported in Ibrahim Ahmad Batti alias Mohd. Akhtar Hussain alias Kandar Ahmed Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Others, , wherein it is held that all documents, statements and other materials referred to in the grounds of detention and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction should have been furnished to the detenu along with the grounds, as otherwise the order of detention is vitiated.

4. Per contra, Mr. Kandasamy, learned Additional Public Prosecutor invited our attention to the reasons that weighed the detaining authority for passing the impugned order of detention.

5. We have given careful consideration to the submissions of both sides.

6.1. As held by the Apex Court in the case of Ibrahim Ahmad referred to supra, it is true that preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and therefore, in preventive detention jurisprudence whatever little safeguards the Constitution and the enactment authorising such detention provide, assume utmost importance and must be strictly adhered to and one of such safeguards is that unless exceptional circumstances really obtain the delay in supply of grounds of detention as also the documents and statements incorporated therein by reference beyond the normal period of five days would be fatal. But it is a settled law vide the judgment reported in Kamarunnissa and Others Vs. Union of India and another, that if the documents referred to in the grounds of detention are referred only for the completion of the narration of events, the detenu cannot have any grievance for non-supply of the same as he is not prejudiced by non-supply of the copy of the same. In the instant case, the passport of the petitioner was very casually referred to only for the purpose of narration of the facts by verbatically repeating the statement of the petitioner dated 17.7.2004. It is therefore impossible for us to presume that the reference of the passport in the grounds of detention while narrating the contents of the statement of the petitioner alone weighed in the mind of the detaining authority to pass the impugned order. The mere non-supply of documents demanded by the detenu, however irrelevant they may be, merely on the ground that there is a reference to them in the grounds of detention cannot vitiate an otherwise legal detention order inasmuch as, what is more important is that the non-supply should have impaired the detenu''s right to make an effective and purposeful representation. The Apex Court time and again has observed that "no hard and fast rule" can be laid down in this regard.

6.2. If a document is not relied upon but only referred to, then the detenu has to show prejudice by non-supply of the said document, as held by the Full Bench of this Court in the judgment reported in 2002 (2) CTC 321 (AnsarAli -vs- State Of Tamil Nadu) In the instant case, the reference to the passport arose only from the statement of the petitioner himself, but not relied by the detaining authority in passing the detention order and therefore, it cannot be stated that the detenu was in any way prejudiced by the non-supply of the copy of the passport. Once no prejudice could be caused to the detenu by not providing the copy of the passport which is only a public document under which the petitioner availed benefit, he cannot now complain that non-supply of the same would vitiate the impugned detention order. As held by the Full Bench in the case referred supra, the passport is nothing but a standard printed part of the public document and merely because it is referred in the grounds of detention, it cannot be said to be a "relied upon" document, particularly when the petitioner could not show or prove satisfactorily that the said document was relied upon except based on the statement given by him on 17.7.2004.

7. Of course Mr. B. Kumar, learned Senior Counsel also invited our attention to the averment found in the grounds of detention that the passport of the petitioner was found to contain all the entries of the foreign visits made by him. The said finding only substantiates the averment made by the petitioner himself in his explanation as a completion of the sequence of narration but not otherwise for the purpose of reliance. Hence the first contention fails.

8. With regard to the second contention that the petitioner was not furnished with translated copies of the documents referred to in pages 7 to 10(A) in the document book, we are satisfied with the reasons that weighed the detaining authority for such refusal as mentioned in the rejection letter of the Government dated 8.9.2004, wherein it is clearly stated that the translated copies of the documents required by the petitioner which are referred to in pages 7 to 10(A) of the document book as well as the passport need not be supplied to him, as the said documents were seized from the petitioner himself, and that they are standard printed public documents like air-ticket, boarding card, conditions printed on the passport, conditions of VISA, etc. which are common in nature and are not required to be translated at all particularly, when the petitioner himself had the knowledge and was benefited by the same. Hence, the second contention also fails.

9. The Habeas Corpus petition is therefore dismissed.