KUMARAVEL Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) THE order of preventive detention dated 1. 2. 2007, passed with a view to prevent the detenu from smuggling of goods 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 "the COFEPOSA Act" is the subject matter of challenge in the present Habeas Corpus Petition.

(2.) THE order of detention dated 1. 2. 2007 was effected on 2. 2. 2007 and the grounds of detention were served on 3. 2. 2007. From the grounds of detention it appears that the detenu was a passenger proceeding to Shanghai via Kualalumpur. He had one hand baggage and two checked-in baggages. These hand baggage and checked-in baggages were intercepted on 5. 1. 2007 by the Customs Officer and the detenu was questioned. He declared that he was in possession of Chinese Yuan equivalent to Rs. 25,000/- and US Dollars 500. However, on suspicion, the detenu was brought to Air Intelligence Unit, Customs room and search of hand baggage resulted in recovery of EURO 5000 kept in an envelope of "bhagya travels and tours pvt. Ltd. , Chennai 600 008. " and Chinese Yuan to the tune of 3650 and US$310. Personal search of the detenu led to recovery of EURO 5000 kept in pant pocket and EURO 5000 kept in shirt pocket. Thus, in all foreign currencies worth EURO 15000, US$ 310 and Chinese YUAN 3650 equivalent to Rs. 9,16,861/- had been recovered. As the detenu had attempted to smuggle out of India the foreign currencies without possessing any valid document or permit / licence from Reserve Bank of India for the export of the assorted foreign currencies, they were seized under mahazar under Customs Act 1962 read with the provisions of Foreign Exchange Management Act, 1999 (hereinafter referred to as "fema" ). The detenu gave a voluntary statement on 5. 1. 2007 and 6. 1. 2007, wherein he admitted that he had knowingly made gross mistake in attempting to smuggle the foreign currencies. The grounds of detention further recited :-

(3.) ON 6. 1. 2007, the detenu was arrested under Sections 113 (d) and 113 (h) of the Customs Act read with FEMA. The detention order, had already indicated, was passed on 1. 2. 2007. In the Habeas Corpus Petition, it has been specifically pleaded that on 27. 1. 2007, a detailed representation had been sent to the Commissioner of Customs, who is the senior most authority. In such representation, entire defence of the detenu has been clearly set out highlighting as to how his arrest and seizure of foreign currencies were invalid and unfair. Even though such a detailed representation was available much before the detention order, the said vital document was never placed before the detaining authority and, therefore, the order of detention is vitiated on account of the fact that vital relevant materials had not been placed before the detaining authority for consideration. It is further pleaded in this regard that information had been sought for under the Right to Information Act as to how the letter dated 27. 1. 2007 has been dealt with and a reply was furnished stating that file containing COFEPOSA proposal has to be cleared by the Commissioner. From such reply it is apparent that such important document was not at all considered by the detaining authority. It is further asserted that the bail application filed before the Sessions Court on 29. 1. 2007 also contained several vital facts by giving greater details and such copy was served on the Counsel for the Government on 29. 1. 2007 and in fact counter to such bail application was also filed, yet such bail application was never placed before the detaining authority. It has been submitted by the counsel for the petitioner that if these two vital documents, namely, representation dated 27. 1. 2007 addressed to the Commissioner of Customs, who is the Head of the Department available at Chennai, and the bail application, which was filed before the Sessions Court, to which even counter had been filed, would have been placed before the detaining authority, the detaining authority while exercising his subjective satisfaction could have come to some other conclusion and non-placing of such vital documents has the effect of vitiating the order of detention.