TMI Blog1981 (6) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Metropolitan Magistrate reminded the petitioner to judicial custody in the Central Prison, Madras. On the 31st January while the petitioner was still under remand in the Central Prison, the State Government ordered his preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to by its popular name as the COFEPOSA Act). The petitioner made representations against the order of detention to the Advisory Board but without success. He has new filed this petition under Article 226 of the Constitution of India, for a writ of habeas corpus against the State Government, which is the detaining authority, the Collector of Customs, whose Department was instrumental in placing the materials before the State Government leading to his preventive detention and also the Superintendent of Central Jail, Madras, which is presently executing the detention order. The petitioner-s contention is that the detention by the State Government is illegal and he must be set at liberty. ( 2. ) The order of detention was passed under section 3(1) of the COFEPOSA Act. The Order states that the petitioner was being detained, becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, addressed his submissions before this Court only from the above premises. He said that he was not canvassing the correctness or advisability of the decision of the State Government. Nor did he urge us to apply our independent minds to the materials in the ease to test the correctness or validity of the State Government-s satisfaction as to the necessity for the detention of the petitioner. All that he urged was that this Court should examine the grounds disclosed by the State Government to the petitioner with a view to finding out whether all the facts which had a vital bearing on the question as to whether the petitioner is to be detained or not were in fact made available or were adverted to by State Government before it passed its order of detention. ( 4. ) The central theme of Mr. Ranga-vajjula-s argument, in this connection, was that a very important fact bearing on the petitioner-s case was withheld from the State Government either by accident or by design (sic) and it had an intimate connection with, or a bearing on, the other facts, which the State Government had taken into consideration and on the exclusive basis of which it had come to a satisfaction. THE fact whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the postal department. In the counter-affidavit filed in this Court by the Joint Secretary, Public Department, Government of Tamil Nadu, it is stated that the said petition written on the 28th by the petitioner was forwarded to the Collector of Customs by the Superintendent of Central Prison, Madras, only on 2nd February, and that being so, it was much too late to be brought to the notice of the detaining authority for being considered. For, by then, the order of detention had already been passed on the 31st January. ( 6. ) We realize the sheer chronological impossibility for the detaining authority to have taken in to account an important document such as the petitioner-s retraction statement, when it hadnot seen the light of day till the moment of issue of the detention order. But, whose fault was it that no one knew about this statement of retraction no one who mattered The counteraffidavit of the Joint Secretary makes it clear that the petitioner-s letter had got stuck in the office of the Prison Superintendent for five precious, but wasted days. WE dare say that in the ordinary course of postage there was just a chance that the petitioner-s communication, dated the 28th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Counsels of the State Government before the decision to order preventive detention was taken. It may be that even after perusing the retraction the detaining authority might still have felt convinced that the earlier confessions were true and the retraction was an after thought and of no consequence. The whole point of the petitioner-s complaint before us is that the retraction was not placed before the detaining authority sufficiently in time to enable the detaining authority to evaluate the weight of such retraction. It is in this context that we find no words too harsh to condemn the indifference which punctuated the handling by the jail authorities of the petitioner-s mail. ( 7. ) Regrettable as the delay caused by the third respondent had been in this regard, we are however, unable to accept the contention of the petitioners learned Counsel that today we should ourselves take into consideration the retracted statements of the petitioner and proceed to declare the satisfaction of the detaining authority as unjustified. We decline to undertake this task. When the law is that we have no jurisdiction to Judge the correctness or advisability of the decision of a detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound now for challenging the order of detention. ( 9. ) Mr . Thiagarajan, learned Counsel appearing for the Collector of Customs, however, preferred to go farther and deny that there was any illegal detention of the petitioner on the 15th, 16th, 17th and 18th January. Learned Counsel denied that the petitioner was arrested by any of the Customs Officials on the evening of 15th January. On the contrary, he asserted that the petitioner was put under arrest by a Preventive Officer of the Customs only at 11 a.m. on 18th January and within 24 hours of such arrest at 4 P.M. on the very same day he was produced before the Chief Metropolitan Magistrate who made an order for judicial custody. ( 10. ) We are satisfied that the petitioner was placed under arrest by one or other of the preventive Officers of the Customs Department, Madras, on the night of the 15th January. The imputation to the contrary found in the counter-affidavits filed in this case both by the Joint Secretary, public Department, Government of Tamil Nadu and by the Assistant Collector of Customs is based on a misconception of what an arrest is under the law. Our legal system does not require that an arrest should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined in his presence, and the contents confiscated. The Customs Officials then took him back to the Custom House at 1-30 p.m At the Custom House, again another statement was taken from him at Custom House. He was in the Custom House during that right. On the next morning i.e., on 17th January, while he was still staying in the Custom House, his personal baggage which he brought along with him was searched in the premises of the Custom House. On the night of the 17th January, which was the third successive night, he remained in the Custom House and was produced before the Magistrate by the Customs official at 4 p.m. on the next day, namely, the 18th. These facts speak for themselves. The record shows that there were as many as three Preventive Officers who were in-charge of the interrogations and of taking the petitioner from place to place. It is now asserted that the petitioner was arrested only at 11 a.m., on the 18th January. According to the records of the Customs Officials, the officer who made the arrest was one Vijayaraj. The records entered the arrest as having been made at 11 A.M., on the 18th. This Officer, Vijayaraj, has not filed any independent affidavit in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly could he, not go anywhere he wished, but he was being dogged by the Customs Officials all the while and was completely under their will and their surveillance. ( 11. ) It may be observed that it has always been the case of the Customs Authorities that the watches and other articles and goods which they discovered from the accompanied baggage of the petitioner were smuggled goods which were liable for confiscation since they contravened the Baggage Rules and other provisions of the Customs Act and in fact were confiscated. The watches as well as the rest of the con tents of this baggages were confiscated by the Officials or the evening of the 15th January. This was the first have they made. They, then and there, knew or must have reason to suspect that the petitioner might be implicated for an offence punishable under section 135 of the Customs Act. Under section 127 of the Customs Act, confiscation of contraband goods shall not prevent pro-secution for an offence under section 135 of the Act. Hence with such evidence as they said they had before them immediately after the opening of the baggage on the night of the 15th if they had not arrested him then and there they would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the, authority of a magistrate.- ( 12. ) In a way, the nebulous character of the petitioner-s detention under the Custom House custody is implicitly admit-ted in the affidavit of the Assistant Collector of Customs. Even in the counter affidavit filed by the Joint Secretary of the Tamil Nadu Government while asserting that the petitioner was put under arrest by an officer of the Customs Department only on the morning of the 18th January, the Joint secretary proceeds to say -IN fact after recovery of watches and watch straps under a mahazar at the Cargo Complex, he was taken straight to Hotel where he was staying in Room No.50 and his Room searched which resulted in the recovery of traveller-s cheques, incriminating documents and other items in eluding tool and plywood planks with metal sides. Thereafter he was taken to Customs House for investigation. After completing all investigations the petitioner was actually arrested on 18th January, 1981 and produced before the Chief Metropolitan Magistrate, Madras-. The stand taken by the Joint Secretary as well as the Assis-tant Collector of Customs is that the petitioner was put under arrest only after all investigations were complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be a different question. But, learned Counsel submitted the absence of any information as to the petitioners having been in the custody of the Customs Officials and his spending the nights in the Customs House in detention were material facts the withholding of which either by accident or by design rob the detaining authority of part of impor-tant and Vital data essential for coming to a right conclusion one way or the other. ( 13. ) These arguments were met by the learned Public Prosecutor by saying that in the events that happened on the 15th to 18th January, there was scope for argu-ment whether the petitioner was arrested on the 15th and was in the custody of the Customs Officials till 18th and whether that custody amounted to illegal custody, The question therefore, whether the petitioner was under illegal custody of the Customs Officials was not a mere matter of factual information, but was a matter of legal finding or inference from various facts relating to the petitioner-s movements, the searches, the interrogations and the like. According to the learned Public Prosecutor, the Court-s jurisdiction in a matter of preventive detention under the COFEPOSA Act and other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The grounds of detention do not disclose that the detaining authority was informed that the petitioner was interrogated at the Customs House, that he gave his statements in the Customs House on the 16th and 17th and that he spent three days and nights within the precincts of the Customs House. The order of detention was served on the petitioner through the Superintendent of Central Prison so was a copy of the grounds marked to the petitioner through the same Official of the Central Prison. But apart from these indications, the grounds of detention drawn up by the detaining authority do not show that it was aware that the petitioner was produced before the Magistrate for judicial custody only on the 18th January even though right from 15th night he never could call his time or his liberty his own. Having regard to the purpose and scheme of the COFEPOSA Act and the im-portant function and good results its provisions are expected to bring about especially in the matter of prevention of anticipated foreign exchange violations and of anticipated smuggling activities, the detaining authority might of ten be put to the necessity of taking quick decisions on the basis of fast moving fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f whom, in the present case, would seem to have played an important part in the formation of the opinion by the detaining authority when the question arose as to whether the petitioner should be put under preventive detention or not. A Screening Com-mittee, if it is to be true to its name, is not merely a body which feeds but one which sifts them, appraises them, evaluates them and gives its own opinion all of which would amount to -Screening-. It is clear from the counter affidavit of the Joint Secretary that the rule that the members of the Screening Committee played in the deliberation was no to survey information to the detaining authority but to consider and take note of relevant circumstances when examining the proposal for detention of the petitioner under the COFEPOSA Act. In other words, they were not at the producing end of information facts or data, but were at the receiving and the evaluating end of facts, and by all accounts were given a pre-eminent position in the matter of (sic) attesting the effects of facts in the context of decision making on the question of detention or otherwise. ( 15. ) We have searched in vain the COFEPOSA Act for functioning of an opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention on the more familiar principle that vital facts relating to the illegal custody of the petitioner were not made evailable and were not adverted to by the detaining authority. We. have earlier referred to the information purveyed by the learned Public Prosecutor that amongst the Screening Committee could be found an official or officials of the Customs Department. We were not over curious to know the names of the officers of the Customs Department, who played their part as members of the Screening Committee. The ASsistant Collector of Customs who has sworn to affidavits in this care bears the designation of the ASsistant Secretary, COFEPOSA. He is also in some of the documents described as -ASsistent Secretary. Rummaging and Intelligence-. This official had taken the stand in his counter-affidavits that the petitioner was not arrested on the 5th January and he was not in illegal custody of the Customs Officials till the 18th. We have earlier held that this assertion is contrary to facts and is a protective misinter-pretation. If this represents the official line of thinking in the Customs Department, then whether this officer or any other officer of the Customs Department h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r non-disclosure of relevant facts relating to the detention of the petitioner in Customs House is an nondisclo- sure of a material fact and a decision rendered in the absence of such material facts is thereby vitiated in law. ( 17. ) That non-disclosure or non-attention to a material fact will vitiate in law even the subjective satisfaction of a detaining authority under the COFEPOSA Act is a position which is settled by the decicions of the Supreme Court. It is enough to cite on decision of that Court in Ashadevi v K. Shivraj1. In the case before the Supreme Court an order of detention under the COFEPOSA Act under section 3(1)(iii) was in question. The order of detention was challenged by the wife of a detenu on the ground that three vital facts which had a material bearing in the case and would have influenced the mind of the detaining authority one way or the other were neither placed before it nor considered by it before it passed the detention order and hence the detention order was liable to be set aside. The Supreme Court while deciding, the point, took the opportunity of restating the law on the subject by observing that the subjective satisfaction requisite on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estated by the Supreme Court in this decision is binding on us and we should give effect to the principle of the decision that wherever vital and material facts are not brought before or considered by the detaining authority, the non-disclosure or nonconsideration would vitiate the order of detention. We however, do not accept Mr. Rangavajjulu-s argument that this decision of the Supreme Court is also authority for the point that wherever a detention order under the COFEPOSA Act is preceded by the custody of the detenu by the Customs Officials and that custody is found to be illegal in the sense that the person arrested is not produced before the magistrate within a reasonable time or at the most within 24 hours and if the factum of illegal custody is not brought to the notice of the detaining authority, that omission or failure should be regarded as vitiating the order of detention. Having read the decision of the Supreme Court carefully we are not satisfied that there was any omission at all in that case before the Supreme Court to place before the detaining authority the facts relating to the custody of the detenue by the Customs Official , much less any omission on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct as well as the clear and express provisions contained in section 3(1) of the Act that the object and function of an order of detention is to prevent the person against whom the order is being passed from engaging himself in a certain conduct or behaviour either in the matter of violation of foreign exchange or in the matter of smuggling. While the object is prevention of future acts and curbing of future tendencies on the part of the individual concerned, it would be difficult, if not impossible, to get direct evidence or proof in all cases as to how any given individual is going to act or refrain from acting hereafter. Future behaviour might upto a point be inferred from past patterns of behaviour and past (acts or omissions may therefore, be relevant facts from which some kind of an insight can be got at in regard to a man-s propensities or future tendencies. It is however, important to realise that past acts of a particular kind may not be an indicia of future tendencies of quite a different kind. In order to support one-s belief that an individual is likely to act in a particular way in the future one must at least have evidence of past acts of the same individual in the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in connection with an alleged offence at smuggling is likely to escape the arm of the law and stultify prosecution or conviction and sentence for that offence cannot amount to a belief that the individual would repeat his smuggling act. It is admitted by the Joint Secretary, Public Department Government of Tamil Nadu in his counteraffidavit that the pettioner had not visited India earlier than at present. In this context if the apprehension of the State Government were that the petitioner would escape from this country, it would not amount strictly to a belief that he would risk coming to this country once again for indulging in smuggling activities. In other words, the main spring of action for preventive detention is wholly lacking on the very basis of the grounds of detention of the detaining authority. The object is not to prevent future smuggling but to prevent the petitioner from escaping the consequences of the law for a past act of smuggling. This is yet another vice which we have noticed in the present order of detention although this had not been adverted to or stressed by learned Counsel for the petitioner. The distinction between preventing future transgressions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Universal Declaration of Human Rights in 1948, all human beings, wherever they populate the universe, are to be dealt with as individuals, first and last. The old dichotomy of nationals and aliens, was to be a thing of the past at least so far as the basic human rights were concerned. Under Article 9 of the Human Rights Charter, -no one shall be subjected to arbitrary arrest, detention or exile- -. The substance of this prohibition is reflected in Article 22 of our Constitution as well. This is yet another reason why this Court is under an obligation to see to it that the law of preventive detention under our COFEPOSA Act is administered not only properly, but fairly and equitably as between citizen and citizen and citizen and foreigner. And because the Act expressly applies its provisions to both Indian citizens and foreigners alike, the standards on which the executive acts of preventive detention have got to be judged by this Court in individual cases will also have to be identical, and without discrimination. For instance, the Court will not apply less then proper tests to uphold a preventive detention merely because the detained individual might fit the description o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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