P. SUDHAKAR Vs. STATE OF TAMIL NADU, REP. BY THE SECRETARY TO GOVERNMENT, PUBLIC (L&O) DEPARTMENT, FORT ST. GEORGE, CHENNAI-9,

JUDGEMENT

(1.) THE above writ petition is filed for the issue of a Writ of Habeas Corpus by calling for the records of the first respondent connected with the order No. SR. 1/590 -5/2001 dated 12.6.2001 and set at liberty the detenu Lebaku Kanakaiah, son of Lebaku Subbaiah, now detained in Central Prison, Chennai under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974).

(2.) ACCORDING to the petitioner, Lebaku Kanakaiah (hereinafter referred to as the detenu) had gone to Kuwait 14 years back and was employed originally as an Attender in a Government Organisation there; presently, he is working as a domestic servant. He does not know to read or write in any language and he can only understand Telugu. He had not come to India even once in the last three years. He came to India on 21.4.2001 to attend the marriage of one of his close relatives in Andhra Pradesh from Kuwait via Muscat by Flight No. WY -850/21.4.2001. In the same flight, Thiru Pothi Narayana and Tmt. Pothi Rajamma Narayana arrived as passengers and there intercepted at the exit gate of the Customs Arrival Hall. On personal search, the brown chap -pals worn by Tmt. Pothi Rajamma Narayana were found unusually heavy and after questioning of concealment of any contraband, on their negative reply, the chappals were cut open and it was found that 12 nos. of gold bars of ten tolas each with foreign markings wrapped with carbon papers were recovered from the chappals worn by Thiru Pothi Narayana and 8 nos. of gold bars of ten tolas each with foreign markings wrapped with carbon papers were recovered from the chappals worn by Tmt. Pothi Rajamma Narayana. On further questioning, they replied that the said chappals containing the gold bars were given to them by the detenu who arrived by the same flight and identified him near the green channel. The contraband items were seized under mahazar for further action under the Customs Act, 1962 read with the Foreign Trade (Development and Regulation) Act, 1992. On the basis of statements from those persons as well as the statement of the detenu, the detenu was arrested and remanded to custody on 21.4.2001 and further detained by the order impugned herein. The representation made on behalf of the detenu dated 23.6.2001 was disposed of by the Government on 17.7.2001.

(3.) MR . B. Kumar learned Senior Counsel arguing on behalf of the detenu made the following submissions as to how the order of detention is not sustainable in law :