BADHIRI NISHA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The above Habeas Corpus Petition is filed against the order of detention dated 24.10.2002 passed by the first respondent under Section 3(1)(i) of the Conservation Of Foreign Exchange And Prevention Of Smuggling Activities Act, 1974 (Central Act 52 of 1974).

(2.) The brief facts of the case are as follows :- The detenu was scheduled to leave for Singapore by Indian Airlines Flight IC-555 on 6.9.2002. He had checked in his baggage which was cleared through the immigration, customs and security check. On an alert by the Airlines Security personnel at the Security Scan that the detenu might be carrying contraband goods in his checked in baggage, the baggage was recalled and the detenu was examined and questioned. The detenu admitted that he had one hand baggage namely one Modern black colour zipper bag and one checked in baggage namely one brown colour card board carton, for which he had produced the baggage claim tag. Thereafter, in the presence of witnesses, he identified the baggage and then, for the purpose of checking the baggage, the card board carton was opened and on examination, it was found to contain 19 packets of 500 gms. of Coffee Powder and Bengal Grams. However, on a detailed examination of the card board carton, it was noticed that the four side walls of the box were slightly bulging on either side and on carefully cutting open the box, it was found to contain foreign currencies equivalent to Indian Rupees 25,49,605/-, stacked between the four side walls, which included 1000 US Dollars, 70 Singapore Dollars, 1000 Thai Bahts, besides a Nokia Mobile Phone being recovered from the person of the detenu. Inasmuch as the detenu had failed to make a true declaration of these items and had attempted to smuggle the said foreign currency out of India, the said items were seized under the Customs Act, 1962 read with Foreign Exchange Management Act, 1999 under a mahazar dated 6.9.2002. The detenu gave a voluntary statement dated 6.9.2002, admitting his guilt and has stated that in order to sustain his family, he used to buy goods from Bangkok and sell them at Chennai and that his friend had offered him Rs.3,000/- for taking the seized goods from Chennai and handing them over to a certain person at Singapore. He had also stated that he was aware that foreign currency notes were kept in the card board carton and that he had committed the offence for a monetary consideration. The detenu was arrested on 6.9.2002 and was produced before the A.C.M.M., E.O.II, Egmore, Chennai and was remanded to judicial custody till 20.9.2002. The materials leading to the arrest and the subsequent particulars were placed before the Government and the Government, after taking all these materials into consideration, was satisfied that there was a compelling necessity to detain the detenu with a view to prevent him from indulging in smuggling goods in future and accordingly passed the impugned order of detention. The said order is now under challenge.

(3.) Learned senior counsel Mr. B. Kumar, arguing on behalf of the petitioner, submitted that the detaining authority erred in construing the statement of the detenu dated 6.9.2002 as if he had admitted the offence and if the whole statement is taken into account, no such inference could be drawn. According to him, the detaining authority had proceeded on the assumption that under the provisions of the Foreign Exchange Management Act, 1999 (hereinafter referred to as FEMA) read with Section 113(d) of the Customs Act, 1962, an offence has been made out. He also submitted that there is no notification from the Central Government prohibiting the export of foreign currencies. According to the learned senior counsel, the detention order shows non-application of mind since the Tamil version of the grounds of detention reads as though the detenu is involved in importing the goods. He submitted that the retraction of his statement by the detenu was not considered in the detention order. He further submitted that the alleged export of foreign currency is a simple offence and there is no violation, for which detention could be invited. Lastly, he submitted that the awareness on the part of the detaining authority as to the likelihood of the detenu being released on bail was not correctly translated and as per the Tamil version, it could only mean that there was a possibility of the detenu getting bail, in which case, there is no need to pass an order of detention. For these reasons, he prays for setting aside the order of detention.