ALI PALAKKAL Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE detenu Ali Palakkal has filed this petition to issue a writ of habeas corpus or any other appropriate writ or other order or direction by calling for the records relating to his detention order dated 14.2.2001 passed by the first respondent under Sec. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to quash the same and to set him at liberty.

(2.) THE detenu arrived at Anna International Airport, Chennai from Riyadh on 14.12.2000 by Indian Airline Flight and he was trying to pass through green channel. THE officers of the Customs Department intercepted the detenu and questioned as to whether he is in possession of any contraband. THE detenu answered in the negative and hence the officers of the Customs Department made a thorough check of his checked-in-baggage bearing tag No. AI 037874. THE search made by the said officers disclosed that the detenu had concealed 24 gold bars with foreign markings weighing 10 tolas each in emergency light and 14 gold bars with foreign markings weighing 10 tolas each in five eveready batteries totalling to 38 gold bars weighing 4427 grams of value Rs. 20,09,415. THE detenu gave a statement with regard to the smuggling of the contraband and a case has been registered in R.R.No.89 of 2000 and the contraband was confiscated under Sec. 111 (d), (i), (1) and (m) of the Customs Act, 1962. THE case is pending before the learned Additional Chief Metropolitan Magistrate, E.O.I. Chennai. THE detenu was detained under the COFEPOSA Act on 14.2.2001 by the Detaining Authority on the request made by the sponsoring authority and the detenu is detained in Central Prison, Chennai. THE abovesaid detention was questioned by the detenu on the following grounds: (1)"THE delay in passing the order of detention on 14.2.2001 from the date of arrest on 15.2.2000, has not been properly explained. (2)"THE bail application filed by the detenu on 18.12.2000 was dismissed on 11.1.2001 and hence the detenu is detained in jail. THEre is no necessity to pass an order of detention against the detenu while he is in jail. (3)"THE detenu filed an application for bail subsequent to the dismissal of the bail application on 11.1.2001 and the sponsoring authority filed its counter on 27.1.2001. THE detenu was ordered to be released on conditional bail on 12.2.2001. THE non placement of vital material of the abovesaid bail petition, counter and bail order will vitiate the detention order. (4)"THE detenu who was employed at Riyadh on a monthly salary of 400 Riyals, is eligible to bring 10 Kgs. of gold in the capacity as N.R.I. and therefore, the detention of the detenu on the ground of smuggling 4427 grams, is not sustainable. (5)"THE retraction letter has not been placed before the Detaining Authority and hence the same will vitiate the detention order. (6)"THE detenu who was served with the order of detention on 17.2.2001, was not served with Malayalam translated copies at pages 19, 20, 25 and 26 of the same even though they were served in English That will show the non-application of mind of the Detaining Authority and accordingly vitiate the detection order. (7)"THE members of the family of the detenu were not informed about the detention of the detenu in Central Prison at Chennai on 14.2.2001. (8)"THE document excess baggage tag No. 09845208421064 and the declaration card were relied on by the Detaining Authority while passing the order of detention. But the copies of the same have not been furnished to him. (9)"THE documents at page No. 67 supplied to the detenu is illegible and therefore, the detention orders vitiated. (10)"THE wife of the detenu had sent a representation to the first respondent on 7.3.2001 and it is for the authority concerned to satisfy the Court that the same was considered and disposed of without any avoidable delay. (11)"A similar representation was sent by the wife of the detenu to the Government of India, the second respondent on 2.3.2001. It is for the second respondent to establish that the said representation was disposed of without any avoidable delay.

(3.) IN Abdul Sathar Ibrahim Manik v. Union of INdia , (1991) Crl.L.J. 3291: A.I.R. 1991 S.C. 2261, the Honourable Apex Court was pleased to hold as follows: "As already noted, in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the Detaining Authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention in spite of his being in custody. These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary". IN this case, the Detaining Authority has specifically dealt with in para No.1 (viii) of the grounds of detention about the dismissal of the earlier bail application on 18.1.2001 and about the extension of the remand period upto 22.2.2001 in ground 1 (ix) of the detention order. IN ground No. 5 of the detention order, the Detaining Authority had made mention about the likelihood of the remand prisoner, viz., the detenu, being released on bail and also about the likelihood of the detenu indulging in prejudicial activities again on coming out of bail and also about the compelling necessity to prevent the detenu from indulging in such activities. If the principles laid down by the Honourable Apex Court as mentioned above is taken into consideration in the light of the facts and circumstances mentioned in the grounds of detention order, the contention raised by the learned counsel for the detenu that there is no necessity to pass order of detention while the detenu was already in remand, will not help him in any respect to hold that the order of detention is vitiated on such ground.