R SELVARAJ Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) IN HCP. No. 56 of 2005, the detenu, R. Selvaraj, who was detained under Sections 3 (1) (i) and 3 (1) (ii) of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (in short, COFEPOSA act), challenges his detention order dated 28. 12. 2004 on various grounds.

(2.) IN HCP. No. 85 of 2005, the petitioner Zeenath challenges the detention order dated 28. 12. 2004 passed against her husband tayez Haroon under Sections 3 (1) (i) and 3 (1) (ii) of the COFEPOSA Act.

(3.) WE have considered the relevant materials as well as the rival contentions. In so far as the first contention is concerned, it is brought to our notice that the sponsoring authority, during the follow up action, is alleged to have seized 20 MTs of red sander logs from the factory premises of M/s. Chennai Essential Oils under seizure mahazar dated 18. 12. 2004. The seized goods were loaded in two vans bearing registration numbers TN 01 Z 6323 and TN 01 M 8973 and the same were weighed as 6920 Kg. & 6520 Kg. totaling 13. 440 MTs. It is also brought to our notice that M/s. Latha enterprises, Chennai also issued weight certificates on 05. 01. 2005. Subsequently, the weighed red sanders were handed over to the Deputy commissioner of Customs, Ware House, Customs House, Chennai as requested by the sponsoring authority, vide his letter dated 20. 12. 2004. However, the reading of the grounds of detention shows that the detaining authority has mentioned in the grounds of detention that the sponsoring authority seized 20 Mts of red sanders from M/s. Chennai Essential Oils, whereas the certificates issued by the WEigh Bridge show that the total weight of the red sanders is 13. 440 Mts. As rightly pointed out, there is a discrepancy in weight between seized goods and weighed goods. Again, as rightly pointed out, the sponsoring authority failed to give correct information to the detaining authority in respect of the seizure of red sanders, but the sponsoring authority had placed incorrect facts before the detaining authority, which have influenced the mind of the detaining authority while passing the detention orders, which amounts to non-application of mind and also leading to extraneous consideration. WE have also perused the weight mentioned by the sponsoring authority as well as the WEigh Bridge report, and we find that both of them differ each other in quantity. In the absence of clarification or details regarding the same, we are of the view that the claim of the learned senior counsel for the petitioners that the detention orders were passed merely on the basis of incorrect facts is acceptable. It is also brought to our notice that the weight certificate containing the correct weight of the seized red sanders falsifying the seizure mahazar dated 18. 04. 2004 prepared by the DRI Officers at M/s. Chennai Essential Oils , Chennai was neither placed before the Advisory board, nor before the confirming authority. There is no explanation for the same. Though learned Additional Public Prosecutor has claimed that the above mentioned points were not raised in the affidavits filed in support of the above petitions, it is not in dispute that in HCMP. No. 70 of 2005, this Court permitted the petitioner R. Selvaraj to raise additional grounds and the said petition came to be ordered even on 06. 04. 2005. The learned senior counsel for the petitioners has also brought to our notice that the copy of the additional grounds has been served on the public prosecutor on the same day, i. e. , on 06. 04. 2005. In such a circumstance, nothing prevented the Additional Public prosecutor from either filing a counter affidavit or at least getting specific instructions from the respondents. WE agree with the contention raised by the learned senior counsel for the petitioners and we hold that due to discrepancy in quantity between the seized goods and weighed goods, the impugned detention orders passed by the detaining authority on the basis of the said incorrect facts cannot be sustained.