ZAKIR ALI KHAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner is the detenu who has been clamped by means of the detention order in G.O.No.SR.1/1105-2/2007 dated 03.12.2007 passed by the first respondent under the provisions of COFEPOSA. He arrived in Chennai Anna International Airport by Flight No.TG 521 from Bangkok along with three baggages viz., black colour freemood brand shoulder bag, a Diplomat brand brief case and a plastic carry bag as hand baggage. He was intercepted by the Customs Officers while he was attempting to leave the baggage hall through the green channel, on a reasonable suspeicion that he must be carrying contraband either in baggage or on person. He was queried by the Customs Officers in the presence of the independent witnesses to declare the contents of the baggage, for which he declared the contents of baggage as used clothes, sarees and some gift articles worth about Rs.5,000/- and also submitted his custom declaration slip. Not contented with the declaration, the Customs Officers decided to examine the baggage, carried out the search inside the baggage and found certain used clothes, a few sarees and personal effects alone. On personal search in the presence of witnesses, six number of polythene cover bundles were found in his pant pockets. When they were opened, they found 69 numbers of smaller polythene packets containing assorted semi precious/precious stones. THE Customs Appraising Officer after thorough examination and weighment of the above mentioned articles, declared their value as Rs.20,14,460/- THE detenu admitted on questioning by the customs officers that he kept the above said articles in his pant pocket, a Mahazar was drawn and a case was registered in O.S.No.58/2007-INT for the offences under Sections 132 and 135 of the Customs Act, 1962 read with Foreign Trade (Development and Regulation) Act, 1992.

(2.) MR.M.M.K. Alifudeen, learned counsel for the petitioner inter alia has projected the following grounds assailing the detention order passed by the first respondent:(i) The petitioner sent a retraction letter on 30.11.2007 through his counsel, however, it was neither placed before the detaining authority at the time of passing the detention order nor the sponsoring authority considered. On receipt of the retraction letter on 3.12.2007, the sponsoring authority simply redirected the same to the State Government which was rejected on 26.12.2007.(ii) Along with the retraction letter the petitioner had submitted two representations and in all of them he has stated that he does not have knowledge in English and statements were directed to be copied from the script written by the officers and he has knowledge in Urdu and Kannada alone. He is very much prejudiced by non-furnishing of the translated copies of the English version in Kannada or Urdu, which the petitioner could read and write. By means of the said lapse on the part of the State Government, the detenu was deprived of his right from making an effective representation.(iii) After the stones were seized from the pant pocket of the detenu, he represented the officials concerned that they were artificial and imitation stones and not precious item. But the customs valuer has given an inflated value of the stones and arrived the conclusion that they are worth about Rs.20,14,460/- Pointing to the annexure to the Mahazar dated 14.11.2007 in respect of seizure of precious and semi precious stones it is argued that same item of article was repeatedly mentioned and the values are also furnished with variations. Those variations are not at all sustainable which are arbitrary. If a conscious and reasonable examination was undertaken, it could have been found that the articles were worth only below Rs.5,00,000/- and non supply of the basis for valuation vitiates the detention order.(iv) At the time of recovery of the articles from the detenu, between 14.00 hours and 21.00 hours, a Seizure Mahazar was prepared, in which it is stated,"Accordingly Shri S.P. Rana, Superintendent of Customs, Air Intelligence Unit, Anna International Airport, Chennai, was requested by the Customs Officer to witness the personal search of the passenger. In our presence and in the presence of the above mentioned Superintendent of Customs, the Customs officer offered himself to be searched by the passenger before commencing the personal search"But conversely, in the remand report prepared by the customs authorities, instead of the above said official by name Shri S.P. Rana, the name of one Shri Thomas Agusstian has been mentioned. This discrepancy is a classical instance showing the non application of mind on the part of the detaining authority. The glaring defect could have been clarified by the detaining authority and the sponsoring authority is bound to clarify the above said discrepancy to the detaining authority. The failure on the part of the detaining authority in getting clarification vitiates the detention order.v) The passport belonging to the petitioner was impounded by the court. Despite the awareness about the detention of the passport, the detaining authority has observed that the detenu will indulge in "such activities" which is not at all sustainable in the eye of law. It shows the mechanical attitude and non-application of mind on the part of the detaining authority.

(3.) IN the Seizure Mahazar prepared by the Customs official on the seizure of the articles from the detenu they have mentioned that one Shri S.P. Rana, Superintendent of Customs, Air INtelligence Unit, Anna INternational Airport, Chennai, was requested by the Customs Officer to witness the personal search of the passenger. But, in the requisition for remand dated 15.11.2007, the prosecution unit of Customs has prepared the same with the name of one Shri Thomas Agusstian instead of Shri S.P. Rana. The said discrepancy is a material one which needs clarification from the sponsoring authority. While perusing the records for detention, it is incumbent upon the detaining authority to apply his mind into all the materials available in the matter and arrive at a subjective satisfaction and then only he should pass the detention order. If there was any lapse on his part, it will woefully prejudice the valuable rights of the petitioner to submit his effective representation. By virtue of this discrepancy, the detaining authority could not have reached subjective satisfaction without clarification. The detention order shows the non-application of mind on the part of the detaining authority. This court has taken the consistent view on many occasions that if the attention of the detaining authority was not adverted to the material discrepancy found in the records, it would result in vitiation of his detention order. As per the settled procedure and established principles, only after the clarification as to the discrepancy, the detention order shall be passed. IN this case unfortunately, the respondents' side is unable to repel this contention.