V.S.SIRPURKAR, J.: - (1.) THE petitioner herein challenges the detention of her son ordered by the State Government vide: order dated 19.7.1999 under Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short "COFEPOSA") Act.
(2.) THE grounds supplied to the detenu N.Prabakaran suggest that the said detenu was proceeding to Singapore by Singapore Airlines Flight So-409 of 2.6.1999. When on a tip-off, he was intercepted by the officers of Directorate of Revenue Intelligence, Chennai at Anna International Airport, Chennai after he had cleared immigration and customs Clearance. THE detenu held a passport and an air ticket of an economy class and had a small black colour echolac brief-case as checked in hand baggage and when he was asked in the presence of witnesses, he had informed that he had only 500 US $ and besides that he had no other foreign currency in his possession. As against that, in his black coloured leather purse, 600 US $ were found. When he was interrogated further, he accepted that some more foreign currencies in form of travellers cheques were kept concealed in his chappals and that he had also swallowed certain capsules containing foreign currencies. After the pair of his chappals were searched by peeling the top portion of the chappals, it was found that the travellers cheques totalling to 93,500 US $ were concealed therein in the special cavities made in the bottom of both the chappals, THE said currencies were seized by the officers under a mahazar dated 3.6.1999. THE total value of the seized foreign currencies and Travellers cheques was equivalent to Indian Rs.41,12,170 THEreafter, the capsules, which the said detenu had swallowed, were recovered in the normal course of excretion in the presence of witnesses and totally 50 condom covered capsules were recovered during this process which were washed and cleaned and on examination of each of 50 capsules, it was found that three notes of assorted foreign currencies were rolled in butter paper, wrapped with self-adhesive tape and covered by condoms in a water-proof condition. It was found that there were in all 82 notes each of 500 UAE Dirhams denomination, four notes each of 1000 UAE Dirhams denomination, 54 notes each of 50 Saudi Riyal denomination and 10 notes of 500 Oaar Riyal denomination, total amount equivalent to Indian Rs.8,98,000. THE said foreign currencies were also seized by the officers under a Mahazar dated 3.6.1999. THE grounds also referred to a voluntary statement recorded on 3.6.1999 given before the Senior Intelligence Officer, DRI, Chennai, in which the detenu had admitted that he had joined Kurinji Travels, Chennai as an office Boy that one Saravanan, who used to visit Singapore frequently, came into close contact with the detenu and that he used to send persons to Singapore. THE detenu admitted that Saravanan enquired him whether he could go to Singapore and on his agreeing to do so, a passport was obtained by the detenu in 1994. THEn, the detenu was asked by Saravanan whether he was habituated in swallowing capsules and it was informed to the detenu as to what the capsules are and that the detenu should swallow those capsules and hand over the same to the person named by Saravanan and for which he would get Rs.8,000. On detenu's agreeing to do this, the detenu told Saravanan that he had never been abroad and that he was not habituated in swallowing such capsules and, therefore, Saravanan told him that he would send one other person with him, who would explain everything to the detenu and according to the plan of Saravanan, one Abbas met the detenu on 2.6.1999 at the office where the detenu was working and took him to a room in Buruka Lodge at Mannady. THEre, the said Abbas taught the detenu as to how to swallow capsules by taking Fanta (a soft drink) and also showed by himself by swallowing the capsules and after that, the detenu and Abbas reached the Airport. Before that, Saravanan had instructed the detenu not to show any acquaintance with Abbas and accordingly on reaching the Airport, the detenu separated himself from Abbas and it was when the detenu was about to board the flight that the officers intercepted the detenu. It is suggested in the grounds that it was Abbas who had given a pair of chappals to the detenu in which the foreign currencies were concealed and it was told that these chappals were given by Saravanan. It was admitted by the detenu that he was shown one Renuka of Triplicane, who was a customer of Kurinji Travels who had come twice or thrice to book ticket for going abroad and that she had informed the officers that Saravanan belonged to Tiruchy and whenever he came to Chennai, he used to stay at her residence and that the detenu had also identified the said Saravanan from a family photo album. It is then suggested in the grounds that the detenu was arrested on 4.6.1999 and was produced before the Additional Chief Metropolitan Magistrate, E.O.II, Chennai and was remanded to judicial custody till 17.6.1999 and that there were no complaints by the detenu of any ill-treatment. It is also suggested in the grounds that on the basis of the statement of the detenu, enquiries were made with one Sahul Hameed who was a person incharge of Buruka Mansion, a lodge where the detenu had met Abbas and he, in his statement dated 9.6.1999, stated that after verifying from the two photographs shown to him, the detenu and Abbas had not stayed in the said Mansion on 1.6.1999 or 2.6.1999. It was generally on these grounds that the detention has been ordered. The learned Senior counsel Mr.B.Kumar challenges this detention on various grounds. The learned counsel points out that in the first place, though the grounds suggest that there was a very major role played by Abbas in the whole incident which fact was also relied upon, the statement, of the said Abbas recorded by the Authorities was not supplied to the detenu, so also, though there is a specified reference in paragraph (xi) of the grounds that two photographs were shown to Sahul Hameed, but on seeing them, he had stated that the,two persons, namely, the detenu and Abbas had not stayed in Burukaa Mansion on the relevant dates, the said two photographs were not supplied to the detenu. The learned counsel takes his argument further by suggesting that the detenu specifically asked for the photographs by his request dated 24.8.1999 sent to the Government on 26.8.1999. But the said request was turned down. The learned Senior Counsel also suggests that the statement of Abbas was also not supplied, though specifically requested by the detenu. According to the learned Senior Counsel, this had seriously jeopardized the detenu's right under Art.22(5) of the Constitution to make any effective representation against his detention. As a second submission, the learned Senior Counsel also feebly submitted that the Central Government had not considered the representation sent by the detenu with the required alacrity and the said consideration was delayed which vitiated the further detention of the detenu. As against this, the learned Public Prosecutor contended that the aforementioned photographs or at any rate, the statements if any recorded of Abbas were not the relied upon documents and the photographs are mentioned only by way of a part of a statement of Sahul Hameed. Therefore, it was not necessary for the authorities to supply those photographs. As regards the statement, the contention is that it has nowhere come in the facts that the statement of Abbas was recorded. It is pointed out that even if it is recorded, it would have no bearing on the subject as the detenu was detained on account of an independent act on his part of having been caught while smuggling the foreign currencies out of India. The learned Public Prosecutor also points out that it is only for this reason that even when the request was made by the detenu for those documents, the documents were not chosen to be supplied. At any rate, the learned Public Prosecutor alternatively says, that the non-supply has not caused any prejudice to the detenu, nor has any such prejudice been pleaded or displayed. In so far as the contention regarding the late consideration of the representation by the Central Government is concerned, the learned counsel for the Central Government Mr.K.Kumar has pointed out that there has really been no delay whatsoever and his representation has been disposed of without any carelessness and casual negligence and also there has been no red-tapism in considering the said representation. It would, therefore, be proper to see firstly as to whether the said two photographs and the alleged statement of Abbas could be said to be the relied upon documents, Firstly, speaking about the photographs, it is found that the only reference made to the photographs is in paragraph (xi) of the grounds, where a reference is made to the statement of one Sahul Hameed, who was said to be the manager of Buruka Lodge, where instructions given by Saravanan were passed on through Abbas to the detenu. It is quite clear that the reference to Buruka Lodge has come up only in the Voluntary statement made by the detenu on 3.6.1999 wherein he claimed that after Abbas had met him in his office on 2.6.1999, he took the detenu to Buruka lodge at Mannady and there he taught the detenu as how to swallow the capsules. It is only there that the chappals in which the currencies were concealed were given by Abbas to the detenu at the behest of Saravanan. This statement dated 3.6.1999 is undoubtedly a relied upon document. What is found in para (xi) of the grounds is only a contradiction to the portion of the statement of the detenu dated 3.6.1999 that he had received training to swallow the capsules and also the chappals carrying foreign currencies from Abbas at Buruka Lodge. The contradiction is only to the part of the statement of detenu suggesting that on the statement having been recorded from the Manager of that lodge i.e., Sahul Hameed, he had claimed that the detenu and Abbas had not stayed in the said Buruka lodge on 1st or 2nd June of 1999. It is pointed out in this contradiction that for that purpose two photographs presumably of the detenu and Abbas were shown to the said Manager. The learned counsel argues, therefore, this statement of Sahul Hameed very much becomes a relevant and a relied upon statement being contradictory to the earlier statement of the detenu dated 3.6.1999. It has rightly been considered by the detaining authority and the non-consideration of the statement would have perhaps had the effect of accepting that statement without considering its contradiction by Sahul Hameed and thereby the whole order would have been vitiated. There can be no dispute that the statement of Sahul Hameed had to be considered for the above reasons. However, the question is as to whether any document referred to in that statement could also be termed to be a relevant document. In our opinion, each and every document referred to in that statement of Sahul Hameed could not be termed as a relied upon document. What was relied upon and considered by the detaining authority was a circumstance to the effect that contrary to the claim of the detenu in his statement, the Manager of the said lodge, however, claimed that the detenu and Abbas had not stayed in the said lodge. We are not here to test the veracity of Sahul Hameed's statement. It would be a task of different forums in the different proceedings. What has really been considered is a contradictory circumstances which is perhaps favourable to the detenu and thereby, the detaining authority has indicated that in spite of this favourable circumstance, he had proposed to clamp the detention order against the detenu. The photographs cannot, therefore, be said to be the relied upon documents. The said photographs have merely been mentioned, while considering the circumstances, that the detenu and Abbas had not stayed in Buruka Lodge as per the statement of Sahul Hameed. We are, therefore, of the clear opinion that the said photographs cannot be suggested to be relied upon documents, though the statement of Sahul Hameed itself could be so termed.
(3.) IN this behalf, the learned Public Prosecutor heavily relied upon a Division Bench judgment of this Court in Smt. Balaji Preeti Tulsidas v. The State of Tamil Nadu represented by Secretary to the Government, Public (S.C.) Department, Chennai and two others, H.C.P.No.1626 of 1999, dated 29.2.2000 to which one of us (V.S.Sirpurkar, J.) was a party. There, this question came up in a slightly different form. The facts therein suggested that as a sequel to the further investigation after nabbing the detenu at the airport, to know her real identity and real name, her residence in Thane was raided by the Enforcement Department wherein, the Enforcement Department seized three documents, two being directly connected to her, showing her to be bearing a different name on the ration card and the Enforcement Directorate notice to her husband which tallied with her husband's name in the said ration card. The third document, however, was a notice to one Smt.Shoba Kailash Thakre which document could not be connected with this smuggling activities of the detenu therein and was dubbed to be an irrelevant document. It was argued that the said document was not only mentioned in the grounds, but was also supplied to the detenu and, therefore, the detaining authority was guilty of supplying irrelevant documents and take in into consideration and thereby his thinking process was affected vitiating the detention order. While repelling that argument, the Division Bench had held that though that document was mentioned in the grounds, it was only by way of a further narration to state as to what had happened during the raid in the house of the detenu. It was held by the Division Bench that non-mention of that unconnected document would have given a weapon in the hands of the detenu to complain that the sponsoring authority had deliberately suppressed the third document, though the two other connected documents, which were mentioned in the observation mahazar, were supplied to the detenu. It was pointed out by the Division Bench that the third document was mentioned by way of a necessary fall out of the description of the observation mahazar. It was, therefore, held that though it was unconnected document, its innocuous mentioned in the grounds and supply to the detenu was not in any way apposite to the decision of the detaining authority to claim the detention order. The situation is no different here. The photographs have merely been mentioned in the grounds in connection with the statement of Sahul Hameed denying the identification of Abbas and the detenu. The detaining authority has taken an adequate care to also mention the reason for non-identification. There is nothing wrong in mentioning the two photographs and in our opinion, they could not be the relied upon documents. Again, we cannot forget that the reference to the two photographs has come only by way of further narration. Last but not the least, the circumstance of non-identification by the Manager of Buruka lodge was, in fact, the circumstance in favour of the detenu and all that the detenu could have shown if the said two photographs had been supplied to him that the photographs were not that of Abbas and the detenu. That circumstance by itself again would have been an irrelevant circumstance once it was established that it was this detenu, who was caught red-handed with the currency notes so deftly concealed in the chappals which he was wearing and in his body also. The Public Prosecutor rightly argues that identity of Abbas was in reality not relevant at all. When the basis of the detention order is the detenu being caught red-handed while trying to smuggle the currencies of about Rs.8 lakhs out of INdia at the Airport, whether it was Abbas or anybody else who supplied the chappals to the detenu or trained the detenu in swallowing capsules, it would hardly matter. The learned Senior Counsel appearing for the detenu very fervently argued that the role played by Abbas was so inextricably connected with the whole affair that it could not be left out of consideration by the detaining authority, and, therefore, his identity all the more became important which identify was tried to be established by the sponsoring authority by showing his photographs to the Manager Sahul Hameed. The learned counsel further suggests that for this reason, the statement of Abbas also becomes all the more important and relevant and for that reason, its non-supply to the detenu would be fatal to the detention. We do think so. As has already been pointed out, firstly in so far the photographs are concerned, their reference is only by way of a further narration. That part, we have already shown that the identity of Abbas is not a factor relied upon by the detenu. It is not even mentioned that Abbas was ever intercepted or arrested by the authorities and that he was also in the drag-net of the Enforcement Department or that his statement was ever recorded. We have already shown that there is no reference anywhere to the statement of Abbas in grounds. Therefore, it is clear that the detaining authority went on the individual acts of the detenu which, according to the detaining authority, were sufficient to establish that his remaining free would be prejudicial to the public order and by his remaining free. He might indulge in the further smuggling activities. The learned Counsel very heavily relied on the Apex Court's judgment in Powanammal v. State of Tamil Nadu, A.I.R. 1995 S.C. 618 and more particularly on the following observations in paragraph 9: "9. However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas non-supply of a copy of documents relied upon in the grounds of detention has been held to be fatal to, continued detention, the detenu need now show that any prejudice is caused to him. This is because non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order/.." There can, indeed, be no dispute about the observations and they are very clear. However, as we have already suggested, the situation is altogether different inasmuch as we have found that the said photographs are not the relevant documents, so also there is nothing to suggest that the so called recorded statement of Abbas if any, is a relied upon document. The learned Senior Counsel also has tried to rely on some observations of the minority judgment in Powanammal's case IN RE. A.I.R. 1995 S.C. 618, but in our opinion, the reliance would be inconsequential, the learned Senior Counsel contended that non-supply of relied upon documents like photographs and the statement of Abbas would vitiate the detention in terms of the observations made in the Apex Court's judgment in Powanammal's case. Relying on the observations made in para.9 of the said judgment, the learned counsel contends that the non-supply of relied upon documents would be fatal to the continued detention. We have already shown that firstly, photographs could not be said to be the relied upon documents merely because those photographs have been mentioned in the grounds we have already pointed out that there is nothing on record to suggest that the statement of Abbas was ever recorded by the authorities and is in existence. Therefore, even as regards that statement, it cannot be said that it is a relied upon document. ;