MALARVIZHI Vs. STATE OF TAMIL NADU

JUDGEMENT

(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.

(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.