TMI Blog2012 (1) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 699 grams of gold worth ₹ 12,83,713/-. The detenu was arrested on 10.7.2010 at 13.00 hours for the alleged contravention of the provisions of the Customs Act, 1962. He was produced before the Additional Chief Metropolitan Magistrate, EO-II, Egmore, Chennai, on the same day and remanded till 23.7.2010. Bail was granted to the detenu on 16.7.2010 with a condition to appear before the respondent daily. The said condition was modified on 4.9.2010 with a direction to appear before the respondent once in a month. After a long time, the detention order was passed, that was on 4.11.2010, which was executed by detaining the detenu on 22.8.2011. 3. The said detention order is challenged in this habeas corpus petition by raising various grounds viz., show cause notice issued and the reply to show cause notice submitted by the detenu and sanction for complaint was not placed before the State Advisory Board/ Confirming Authority; there was delay in execution of the detention order for about 9 months and 18 days; and that, the representation sent by the detenu dated 19.10.2011 to the detaining authority has not been properly considered. Petitioner also filed M.P.No.1 of 2011 and rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice on 30.11.2010 to the Additional Commissioner of Customs, Air Cargo Complex, Meenambakkam, Chennai-27, which was acknowledged on 3.12.2010 and the same was not placed before the Advisory Board in the meeting held on 19.10.2011. The learned counsel also cited some decisions in support of his contention and stated that not placing the show cause notice and reply to the show cause notice before the Advisory Board and before the State Government has vitiated the continued detention of the detenu. 6. Insofar as the second contention that there was inordinate delay of 9 months and 18 days in execution of the detention order, the learned counsel submitted that the detenu was very much available at Chennai as he was directed to appear before the Additional Chief Metropolitan Magistrate, EO-II, Chennai, as per the bail condition on every hearing date and he appeared before the said Court on 6.4.2011, the charge sheet was given to the detenu on 20.4.2011 and even thereafter the detenu appeared before the said Court on 26.4.2011, 4.5.2011, 21.5.2011, 14.7.2011, 28.7.2011 and on 22.8.2011. The detenu also received recovery notice dated 9.8.2011 from the Customs Department o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere refers the show cause notice and reply of the petitioner. (a) In the decision reported in 2000 (3) CTC 97 (Rajeswari v. Joint Secretary to Government) this Court considered the issue as to whether show cause notice and reply to show cause notice are bound to be placed before the State Advisory Board and not placing the same will vitiate the decision of the Advisory Board. In paragraph 23 it is held as follows: 23. In their counter affidavit, the respondent Central Government points out that such a show cause notice was, in fact, served on 24.7.1999 while the detenu was in jail but before that itself, the detention order was already passed on 14.7.1999 and, therefore, there was no question of the said show cause notice being considered by the detaining authority so far there can be no notice being considered by the detaining authority so far there can be no complaint. The counter makes a reference to the reply by the detenu dated 3.8.1999 wherein the detenu had stated about the liberalized policy for importation of gold and had also offered some explanation for licit import or acquisition/possession of the seized gold-bars. While it is the admitted position that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d-bars and, therefore, these documents were extremely relevant documents and could have helped the Advisory Board to come to the conclusion whether there was in fact any justification for passing the order of detention or not. Unfortunately, this aspect has not been countered by the respondents and then it is a tacit admission that the documents were relevant and material documents. In this behalf, our attention was invited to the decisions of this Court in K.V.Jesudasan v. State of Tamil Nadu, 1989 Crl.L.J. 637; H.C.P.No.1459 of 1999, decided on 23.4.1996; as also the H.C.P.No.1672 of 1998, decided on 17.3.1999, to the last judgment one of us (V.S.Sirpurkar, J.) was a party. In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining authority is under a duty to put those documents before the Advisory Board. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J.637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector District Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they need not be placed before the Advisory Board in fact they were actually not placed also. As far as the contention that whether it is necessary to place the show cause notice and the reply sent by the detenu or not, this Court had occasion to consider this fact in the judgment Rajeswari v. Joint Secretary to Government (supra) in HCP.No.1444 of 1999 wherein their Lordships have held as follows: In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and material to the subject of detention, the detaining authority is under a duty to put those documents before the advisory Board. In coming to this conclusion initially the Division Bench in Jesudasan's case, 1989 Crl.L.J.637, had relied upon the celebrated judgment of this Court in Vellanai Pandian v. Collector District Magistrate, Tiruhklvkli, (1984) Crl.LJ. 68. The two judgments of the Division Bench of this Court are binding on us and therefore, it would have to be held that in not placing these relevant and material documents before the Advisory Board there is a breach of duty on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperintendent of Customs daily until the condition was relaxed and before the Court on each hearing date as stated supra. Therefore, the contention raised in the counter affidavit that the accused was absconding from the date of detention, that was from 4.11.2010 till he was arrested on 22.8.2011, is contrary to the Court records and the stand taken by the respondent before the Criminal Court in not opposing the relaxation of the condition imposed. (a) Similar issue was considered by the Supreme Court in the decision reported in 2000 SCC (Crl) 411 : (2000) 2 SCC 360 : 1999 (7) Scale 274 (A.Mohammed Farook v. Joint Secretary to Government of India). In the said judgment the delay of 40 days in executing the detention order having not been satisfactorily explained, the detention order was held vitiated. In the said case also the detenu appeared before the Court of Additional CMM, Madras on 25.2.1999 as well as on 25.3.1999. Despite such opportunities, the detaining authority nor the executing agency as well as sponsoring authority were not diligent in serving the detention order and the Honourable Supreme Court set aside the detention order against the detenu, who was also detaine ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
