TMI Blog1989 (3) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... 4218 of 1988 came up for hearing, by consent of both parties, the main writ petitions were taken up for disposal. 2. W.P .No. 4054 of 1988 is filed praying for the issuance of a Writ of mandamus directing the respondents or their men or agent or any officers acting on behalf of them or under their direction to forbear from making use of the statements obtained from (1) the petitioner's wife Vadivammal, (2) Kamalanathan and (3) Gopalakrishnan Chettiar and any one else in connection with the alleged seizure of gold from the premises of Suriya Murthy Chettiar of Chairman Muthuramalingam Street, East Madurai on 1-4-1988 and the seizure of Indian Currency of Rs. 2, 13, 000/- from the Petitioner's house on 2-4-1988 by the respondents Officials in any proceedings against the Petitioner under the Customs Act or any other Act or Acts including the arrest of the Petitioner herein. 3. W.P. No. 4218 of 1988 is filed praying for the issuance of a Writ of mandamus to direct the respondents or their men or their agent or any officers acting on behalf of them or under their direction to forbear from making use of the statements from (1) the Petitioner's wife Mrs. Mangaiyarkkarasi, (2) Kamalana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit was also filed by the Petitioner stating that on the basis of the statement obtained from Kamalanathan and Gopalakrishanan, they have been detained under the COFEPOSA Act, that the statements obtained from the said Kamalanathan, Gopalakrishnan, Mangayarkarasi and from the Petitioner's wife Vadivu are irrelevant under Section 138-B of the Customs Act for all proceedings whether prosecution or adjudication or merely executive or merely administrative proceedings and the conditions prescribed in Section 138-B are not satisfied in the case of any of the persons from whom the Statements are obtained. It is further alleged that the COFEPOSA ACT is inseparable part of Customs Act and Sections 138-B, 107 and 108 of the Customs Act forms parts of a scheme under the Customs Act and that the statements in Sections 107 and 108 of the Customs Act are subject to Section 138-B of the Customs Act and therefore all the three sections are integral part of the same scheme and the operation of Sections 107 and 108 cannot be severed from Section 138-B of the Customs Act. It is further alleged that the statements were obtained under Section 108 of the Customs Act. It is further alleged that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is illegal and should not be used for any purposes under the Customs Act or any other Act. It is further alleged that the Petitioner's wife and others were compelled to declare the falsehood to suit the convenience of the respondent and that it is illegal and high-handed act of the officials of the respondents to compel a house wife to give incriminating statement against her husband. It is further alleged that the Petitioner's wife had sent a telegram at 10.30 P.M. on the same day about the falsity of the statement obtained from her. It is further alleged in the affidavit that the search itself is illegal because there was numerous guests and friends who might have brought some gift articles and anything seized in the house cannot be attributed to him. It is further alleged that no search warrant was shown to the people who were in the petitioner's house before search and there was no mahazar witness at all before entry into the house of the petitioner or during search, and that it is wholly illegal to say that anything seized belonged to him. 7. A further affidavit was filed in this case also, reiterating the very same contentions making the very same allegations which are con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n detained under the COFEPOSA ACT for the reasons stated in the grounds of detention, that the petitioner's contention that the statements obtained from the said Kamalanathan, Gopalakrishnan, this Petitioner's wife Mangayarkarasi and Vadivu (wife of the Petitioner in W.P. No. 4054 of 1988) are irrelevant under Section 138-B of the Customs Act for all proceedings whether prosecution or adjudication or merely executive or merely administrative proceedings and if the conditions prescribed in Section 138-B are not satisfied in the case of any of the persons from whom the statements were obtained are unwarranted. It is claimed in the counter affidavit that the statements of all the above four persons were recorded during the course of enquiry. It is stated in the counter affidavit that the grounds of detention of Kamalanathan and Gopalakrishnan just narrated the statements of Kamalanathan and Gopalakrishnan as stated by them wherein they clearly stated that the petitioners in these writ petitions are the main offenders in the cases and that no proposals against the petitioners under the COFEPOSA ACT are pending. It is further stated that as no action is initiated either under prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Customs Act should be applied to other provisions of the COFEPOSA ACT and as such the Customs Act should be taken as a parent Act. The learned counsel further contends that there is no provision under the Customs Act to send a proposal to the Government for arrest under COFEPOSA ACT. The learned counsel also contends that the power of taking statements without legal assistance cannot be relied upon. The further argument of the learned counsel for the Petitioners is that even before the arrest is made, a lawyer's assistance is necessary. The learned counsel further contends that for coming before this Court, no order of arrest is necessary and even a mere threat of arrest is sufficient. The sum and substance of the argument of the learned counsel for the Petitioners is that a person who cannot be arrested under Section 104 of the Customs Act, cannot be detained under the COFEPOSA ACT also. 13. Mr. Veeraraghavan, the learned Additional Central Government Standing Counsel for Customs contends on the other hand, that the writ petitions are premature relying upon an unreported decision in C.M.P. No. 13203 of 1987 in W.A. No. 1353 of 1987 (NAZEEM v. STATE OF TAMILNADU) dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation before an authority. Further it is well settled that no finding could be given in the writ proceedings with regard to the admissibility or otherwise of the statements in a Judicial Proceedings before court or in a proceeding for adjudication before an Authority. If any question arises in such proceedings, it is open to the petitioners to raise their objections before the said Court or authority. The Division Bench has further held that if it is proceeding under the COFEPOSA ACT, it is not a judicial proceeding and the detaining authority while passing the order of detention has to subjectively satisfy himself whether there is sufficient material before him for passing such orders and as such the argument of the learned counsel for petitioners with regard to the veracity or reliability of the statements made by certain persons cannot be gone into in these writ petitions. There is no justification on the part of the Petitioners in asking this Court to express its views at this stage with regard to the validity of any detention order passed or may be passed under the COFEPOSA ACT based on the statements recorded under the respective Acts. In my view, it can be done only in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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