HAJIRABEEVI Vs. STATE OF TAMILNADU

JUDGEMENT

(1.) THE petitioner-Hajirabeevi is the wife of the detenu by name Thiru.Mohamed Rafi, a resident of No.45-B/99, Third Floor, Thoppai Mudali Street, Royapuram, Chennai, who has been detained by the first respondent in exercise of the powers conferred under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974). In the grounds of detention, it is stated that based on specific intelligence that the detenu, a passenger arriving from Singapore by Flight No.SQ528/20.8.2007, was likely to bring high valued electronic goods of foreign origin in trade quantity as personal baggage and would attempt to smuggle the same without declaring the actual quantity and value to the Customs authority with an intention to evade payment of Customs duty, he was intercepted by the officers of Directorate of Revenue Intelligence at Customs Table No.9 and he filed the customs declaration on the same day. It was found that the detenu was in possession of two hand baggages and two checked in baggages. Though he has declared to have brought 25 cameras and 15 still cameras with a total value of Rs.2,50,000/-, it was found that the value of the goods is worth about Rs.7,72,500/-. Hence the goods were seized and the detention order came to be passed.

(2.) THE detention order is questioned mainly on three grounds. Firstly, a pre-detention representation dated 5.9.2007 was sent to the Chief Commissioner with a covering letter requesting him to forward the same to the detaining authority. Though the said representation was received by the Chief Commissioner, the same was not placed before the detaining authority while the detention order was passed on 14.9.2007. THE non-placement of the said representation before the detaining authority would vitiate the order of detention. Secondly, in the pre-detention representation, the detenu had specifically requested to compound the offence in terms of sub-section (3) of Section 137 of the Customs Act which came into effect from 10.9.2004 and he is also prepared to pay the customs duty. THE failure on the part of the Chief Commissioner to place the said representation before the detaining authority has an adverse effect on the detenu as, had the said representation been placed before the detaining authority, it would have been considered and the detaining authority would have satisfied with the claim and consequently would have deferred from passing the impugned detention order. Thirdly, in any case the very claim was made in the statutory representation dated 31.10.2007 and while the said representation was considered and disposed of, there was no application of mind as to the said claim not only made in the representation dated 5.9.2007 but also in the representation dated 31.10.2007. THE failure on the part of the detaining authority to consider the said aspect and in the absence of any reason for not accepting the same would amount to failure to consider the representation properly, which is a valuable right of the detenu.

(3.) WE have carefully considered the above submissions. So far as the first submission is concerned, it is by now well settled and even no authority is required for the proposition that when a pre-detention representation is made and which was received by the authorities concerned, such representation must be placed before the detaining authority for its consideration, apart from the disposal of such pre-detention representation on merits. The failure to place such representation to the detaining authority would vitiate the order of detention. However, on the facts of this case, we find that without any further delay, the representation received on 5.9.2007 was sent to the Commissioner (Customs), who received it on 6.9.2007, the Commissioner (Airport) on 10.9.2007 and the Joint Commissioner on 14.9.2007 and the Chief Commissioner (Customs) on 17.9.2007, who forwarded the same to the sponsoring authority and consequently, the said representation was received by the Government only on 18.9.2007. Before the said representation was received by the Government, the detention order came to be passed on 14.9.2007 and therefore, on the facts of this case, it cannot be said that the representation had been purposely withheld and was not placed before the detaining authority, as effective steps were taken in forwarding the representation to the Government but, in the meantime, the detention order came to be passed. Hence the first contention of the learned senior counsel for the petitioner cannot be accepted on the facts of this case and accordingly, the same is rejected.