DHANUSHU ALIAS VIJAY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE orders of detention in respect of three detenues passed under Section 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), hereinafter referred to as ?the Act? are in question.

(2.) BRIEFLY stated the facts as apparent from the grounds of detention indicate that on 27.10.2006 Rafeeq Mohammed, detenu in HCP No. 126 of 2007 came from Colombo. On examination the officers found fake Indian currencies from his baggages. On enquiry, he stated that one Abdul Nassar, detenu in HCP No. 123 of 2007, was waiting at the exit gate of the Airport. The officers also found Dhanushu @ Vijay, the detenu in CHP No. 117 of 2007, had come along with Abdul Nassar to the Airport. In his voluntary statement, Rafeeq Mohammed stated that he had contacted one Bazeer and had requested him for getting a job and Bazeer had told that he would take Rafeeq Mohammed to Colombo and would give him some crockery items and some fake Indian currencies would be concealed in the packages and he would have to bring them to India and for the aforesaid job Bazeer had offered Rs. 15,000/- which was accepted by Rafeeq Mohammed. Accordingly, Rafeeq Mohammed accompanied Bazeer from Kasargod to Chennai. Abdul Nassar who was known to Bazeer gave the air tickets for Abdul Nassar and Bazeer and accordingly Rafeeq Mohammed and Bazeer boarded the flight to Colombo. After they landed in Colombo Airport, one Sri Lankan national came and handed over two corrugated boxes to Bazeer and thereafter Rafeeq Mohammed came back to Chennai along with corrugated boxes and Bazeer stayed back stating that he would return after few days. Bazeer also told that Abdul Nasar would be waiting for Rafeeq Mohammed at Chennai. Thereafter, Rafeeq Mohammed was intercepted and on verification fake Indian currencies were found. After subsequent enquiries and investigation, the orders of detention were passed against three detenues as well as against Bazeer.

(3.) IN HCP No. 1633 of 2001, the concerned detenu was arrested and produced before the Magistrate and was remanded upto 4.10.2001. On 4.10.2001 however, he was admitted in the Government General Hospital and was not produced before the Magistrate, though the co-accused had been produced. The Magistrate, while extending the remand of the co-accused upto 4.10.2001, noted that the concerned detenu was not produced. He therefore directed that the case should be called on 18.10.2001. On 17.10.2001, the order of detention was passed under COFEPOSA, wherein it was recited as if the detenu was a remand prisoner. Since there were divergent decisions, the matter was referred to Full Bench. Even though no specific question was referred to, the Full Bench has framed the following question:- ?Whether reference to the fact that the detenu was a remand prisoner lodged in a prison when there was no remand order in fact by a Magistrate and when in fact the detenu was not lodged in prison would vitiate the detention order on account of non-application of mind.? While considering the question of non-application of mind on the par of the detaining authority, the Full Bench observed:- ?14. For arriving at a finding of non-application of mind by the detaining authority, it will have to be essentially found whether the detaining authority has in fact failed to consider any relevant situation which would have affected his decision of clamping the detention order. Further, it would be also a non-application of mind if the authority proceeds on the basis of totally incorrect facts, completely ignoring the circumstance that those facts were factually incorrect if such facts have the effect of affecting his decision making process. We shall now test whether such is the situation in the present case. 15. It was obvious that on the day when the detention order was passed, i. e. on 17.10.2001, there was no remand order in case of the detenu. It was fairly admitted by the learned Public Prosecutor that the remand was extended only in case of the other accused Chandramohan. The remand order also stands testimony to this fact. It was obvious that the learned Magistrate, who was dealing with the remand, had taken note of the fact that accused detenu was not produced before him and was in fact admitted in the Government Hospital, Royapettah as an indoor-patient. He has noted this fact also in his order. However, the fact remains that he did not pass a remand order considering this situation of the accused detenu being admitted in the hospital on the day and it being impossible for the police to produce him in the Court. Thus, there was no remand order in existence on the day when the detention order was passed and as such, the detenu could not be said to be a ?remand-prisoner?. Again, factually there is no dispute that on that day the accused-detenu was not an inmate of the Central Prison, Chennai though he was described to be so in the detention order. He was admitted in the Government Hospital, Royapettah as an in-door patient. Mr. Basha, therefore contended and in our opinion rightly that here was a situation where even being aware of the fact of the non-extension of remand on account of the detenu being admitted in the hospital and not having been produced before the Magistrate, the detaining authority still went onto describe the accused-detenu authority still went on to describe the accused-detenu as a ?remand-prisoner? and lodged in the Central Prison, Chennai. He pointed out that the awareness on the part of the detaining authority of the facts of non-extension of the remand was writ large in paragraph (xxx) of the detention order and yet ultimately in paragraph 5, the concerned detaining authority described the detenu as a ?remand-prisoner?. This, according to the learned senior counsel, was a classic example of non-application of mind.? It was further observed:-