A T MAIDEEN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) An order passed by the first respondent, dated 22-05-2003, under the provisions of Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'COFEPOSA' ), directing the preventive detention of one A.T. Maideen, son of A. L. Ahmed Thambi,, with a view to prevent him from smuggling the goods in future is in challenge in this habeas corpus petition.

(2.) Upon the intelligence information, the officers of the Directorate of Revenue Intelligence (DRI) came to know that red sanders ( prohibited wood) were being exported as popcorn maize under Shipping Bill NO.1585090 dated 25-4-2003 filed in the name of M/s. Vatchala Enterprises and that the detenu and one Abdul Lasa were concerned in the said illicit export. The DRI officials located the said container covered by the aforesaid shipping bill, which was loaded on the trailer inside the Container Terminal at the Chennai Harbour on 26-4-2003 and detained the same.

(3.) Shri Jabbar, learned counsel appearing for the detenu/ petitioner, painstakingly took us through the grounds of detention as also the other allied records. 3.1. The first contention of Shri Jabbar is that there is nonapplication of mind on the part of the detaining authority and for this, it was pointed out by him that in paragraphs (xxiii) to (xxv) of the grounds of detention, bail applications and some other documents were relied upon to suggest that in these bail applications, the detenu had claimed to be an innocent and that his statement was obtained by coercion. Learned counsel then drew our attention to paragraph (xxv) and pointed out that a statement was made therein that on 12-5-2003 a petition for extension of remand was filed before the Magistrate. However, the detenu was not produced as it was stated in the letter by the jail authorities that the detenu was admitted in the hospital and, therefore, the Magistrate directed to produce the detenu on 14-5-20 03. The complaint of the learned counsel against this is that the detaining authority, though had noted that the detenu was admitted in the hospital, did not note the fact that between 12-5-2003 and 14-5-20 03, the detenu was not in the custody of the jail authorities. Learned counsel further points out that the remand was then extended on 14 -5-2003 till 28-5-2003 and it was during this period that the detention order came to be passed on 22-5-2003. According to the learned counsel, it was incumbent upon the detaining authority to note that between 12-5-2003 and 14-5-2003, the detenu was not in the jail custody and he was not produced and, therefore, the order passed shows nonconsideration of a vital fact that at the time when the detention order was passed, the detenu was in the hospital. 3.2. In our opinion, this contention is completely incorrect. In the first place, the contention that the detenu was not in the jail but was in the hospital as he was admitted as an indoor patient and, therefore, he could not be deemed to be an inmate of the jail is itself incorrect. We are satisfied from the documents on record that since the detenu was not well, he was sent to the hospital and admitted as an indoor patient in the hospital, a ward of which is itself treated as a jail. That is the argument of the learned Public Prosecutor, which has really not been controverted seriously by the learned counsel for the petitioner. This is apart from the fact that even this was not so yet, if the detenu was admitted as an indoor patient in the hospital at the instance of the jail authorities, he would always be deemed to be in the jail custody even if physically he was not inside the jail premises. In our opinion, the non-mentioning of the fact in the grounds that the detenu was admitted in the hospital as an indoor patient would not make any difference. All that the detaining authority has to know is whether the detenu was in the 'jail custody'. There is no dispute that the detenu herein was in the custody of the jail authorities by a valid remand. We, therefore, do not think that there was any error or non-application of mind on any count. The first contention is, therefore, rejected.