Sitthi
Zuraina Begum Vs. Union of India & Ors [2002] Insc 494
(22 November 2002)
S. Rajendra
Babu & P. Venkatarama Reddi. Rajendra Babu, J. :
T.
Mohamed Nazeer, husband of the petitioner herein, (hereinafter referred to as
'the detenu') was detained under Section 3(1)(i) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of
1974) (for short 'the Act') by an order made on 7.5.2002. He is at present
confined in Central Prison, Chennai, Tamil Nadu.
The
gist of the allegations made against the detenu is that the Customs Authorities
seized 200 cellphones, 4 cordless phones (base and handset), 4 cordless phones
and 350 earphones totally valued at Rs. 13,19,500/- from the baggages of the detenu
after he came from Singapore and landed at Chennai Anna International Airport
along with his baggages on 20.3.20002; that in the declaration filed by the detenu
goods valued at Rs. 80,000/- had been disclosed, while he was bringing goods
valued at Rs. 13,19,500/- into India without payment of appropriate customs
duty by misdeclaration and concealment; that he made a statement on 20.3.2002
before the DRI Officer confirming the seizure of the aforesaid goods and
admitting the commission of an offence under the Customs Act. The detenu filed
a bail application on March
22, 2002 before the
Additional Chief Metropolitan Magistrate, Economic Offences-II, Chennai,
claiming that he was innocent and had not committed the alleged offence. The
learned Magistrate dismissed the said bail application on 10.4.2002.
In the
meanwhile, the petitioner wrote a letter to the Finance Secretary, Ministry of
Finance, complaining about the ill-treatment meted out to the detenu and the
retracted statement made by the detenu before the concerned authorities. The
grievance now made is that the order of preventive detention is passed against
the detenu as stated earlier in spite of retraction of the earlier statement
given to DRI. Now challenging the detention, this writ petition is filed:
Firstly,
it is contended on behalf of the detenu that a representation was made to the
President of India on 22.5.2002 which was received in the President's
Secretariat on 29.5.2002. However, since the said representation was in Tamil
language, the same was got translated and then forwarded to the concerned
Ministry on 18.6.2002. It is urged that the delay that had occurred in sending
the representation of the detenu to the Government is inordinate and
unexplained. The learned Solicitor General submitted that if he desires to make
any representation to the detaining authority, the same could be made to the
State Government and also to the Government of India, if he so desires; that in
the case of the State Government, the representation could be addressed to the
Secretary to the Government of Tamil Nadu, Public (Law & Order) Department,
Chennai or the Secretary to the Government of India, Ministry of Finance,
Department of Revenue (COFEPOSA Unit), Central Economic Intelligence Bureau, Janpath
Bhavan, New Delhi and the same could be forwarded through the Superintendent,
Central Prison, Chennai. However, the detenu chose to send the said
representation to the President of India on 22.5.2002 which is not at all
contemplated and in spite of specific instructions to the detenu, he had chosen
to address the said representation to the President of India in order to make a
ground of delay later on knowing fully well that in such cases there is bound
to be delay in the receipt of the papers by the President's Secretariat and
forwarding the same to the concerned Ministry. Therefore, we called for further
affidavits from the Central Government in this regard. It is stated in the
affidavit filed by the Under Secretary to the Government of India, Ministry of
Finance, Department of Revenue, as under :- "As per the record of the
President's Secretariat a letter dated 22.5.2002 in a regional language was
received on 29.5.2002. There was no indication of the words
"COFEPOSA" in the petition. As per the existing practice various
letters received in regional languages are sent for translation for providing
the gist of the letter. Typically, the President's Secretariat receives
approximately 5000 petitions in a month out of which approximately 500
petitions are received in various regional languages.
Since
a very large number of petitions are received in various regional languages, in
the interest of expeditious disposal, the translation work is also got done
through a panel of translators maintained by the Ministry of HRD as well as
through private individuals on payment basis. Hence, the process takes some
time.
In the
instant case, the petition in the regional language had no indication of the
words "COFEPOSA". It was thus sent for translation to an outside
translator and on receipt of the gist of the translation, it was forwarded to
the Ministry of Finance on 18.6.2002, as a COFEPOSA case. There was, thus, no wilful
delay on the part of any of the agencies concerned. However, the present
arrangements for translation of petitions received in the Rashtrapati Bhavan in
various regional languages into English or Hindi are time-consuming. Realising
this, we are presently trying to work out an alternative system for the same
that will reduce the time required to the minimum and would ensure prompt
attention of these petitions.
The
true copy of D.O. letter No. 9(9)/2002-P(1) dated 14.11.2002 is enclosed
herewith and is marked as ANNEXURE 'R-1".
Considering
the volume of petitions received in the President's Secretariat and the fact
that the petitions received in regional languages have to be translated and
thereafter forwarded to the concerned Ministry and in the present case it took
about 20 days to complete the process which in the circumstances of the case
cannot be taken to be excessive so as to term the delay as inordinate in
considering the representation of the detenu. When the said representation had
been received from the President's Secretariat steps were taken to get the
comments from the sponsoring authority on 26.6.2002 and the same was disposed
of on 28.6.2002 itself. Considering the totality of the circumstances, we are
of the view that the Ministry of Finance has explained the delay of 20 days in
considering the representation and, in the circumstances, it is not necessary
to consider the argument advanced on behalf of the Union of India that the
representation made by the detenu to the President was deliberate and
misleading when it ought to have been addressed to the Secretary in the
concerned department nor is it necessary to consider the effect of the
decisions in Raghavendra Singh vs. Superintendent, District Jail, Kanpur and
Ors., 1986 (1) SCC 650, Rumana Begum vs. State of Andhra Pradesh & Anr.,
1993 Supp. (2) SCC 341, and Rajammal vs. State of T.N. & Anr. 1999 (1) SCC
417, inasmuch as all these cases had been considered on the facts arising in
these cases such as either the delay in disposing of the representation was not
properly explained or otherwise.
Next
ground urged by the learned counsel for the detenu is that he had studied only upto
5th class and he does not know English language at all and the document annexed
to detention order was not translated in Tamil. In this context, the learned
counsel for detenu relied upon the decision of this Court in M. Ahamedkutty vs.
Union of India & Anr., 1990 (2) SCC 1, that even if the document was within
the knowledge of the detenu, the same had to be served upon him. He further
relied upon the decision of this Court in Powanammal vs. State of T.N. &
Anr., 1999 (2) SCC 413, to the effect that the serving of document in English
would not be an effective compliance with the provisions of Article 22 of the
Constitution and the documents had to be translated. He submitted that that was
a document (document at page No. 13) which pertains to the declaration filed by
him. It is the stand of the respondents that it was a customs declaration card
filled up by the detenu himself and, therefore, he was aware of the contents of
the said declaration and he had also stated in the course of his statement
before the authorities that he had filled up such a card. It is not the case of
the detenu that the said document was not furnished by him. The said
declaration which had been filled by the detenu himself was furnished to him
but the translation thereof was not given to him. The grievance of the
appellant is that Tamil translation of the said document was not given to him.
However, when the said document had been filled by the detenu himself wherein
he made some entries, non-furnishing of Tamil translation of the same would not
result in any non-compliance of a document of which he had no knowledge. If he
had made a declaration and same is supplied to him, we do not think that the
same can be treated as non- furnishing of a document or furnishing of a
document the translation of which is needed. Therefore, the two decisions on
which the learned counsel for the detenu has placed reliance will be of no
assistance to him.
He
next contended that out of the three baggages seized from him one baggage did
not contain baggage tag and the baggage being a checked in baggage there must
be claim tag and a portion of the tag should have been affixed in the Air
ticket and to prove the ownership of the baggage there must be baggage tag and
claim tag; that here in the present case there is no baggage tag or claim tag
and thus under these circumstances, there is no iota of evidence to prove that
the baggage belonged to the detenu except the statement of the detenu; that
thus it was contended that the detenu had only one checked in baggage that is a
black colour zipper bag having marking Aero Star and the two baggage vide Grey colour
zipper bag having marking as Fly way bag to the future and black colour zipper
bag bearing marking as red stone did not belong to him;
that
the baggage tag and claim tag are the most important documents which prove the
possession or ownership of the baggage of a passenger who came by flight;
that
in the absence of any material to connect the detenu with the baggage except
the retracted statement by him, there is serious doubtful position as to the
basic fact regarding the ownership of the baggage; that the detaining authority
without ascertaining the prima facie proof of ownership of the baggage, came to
the subjective satisfaction that the detenu was the owner of the baggage before
passing the order of detention. The stand of the respondents is that on the
basis of certain information the detenu was intercepted on 20.3.2002 when he
arrived from Singapore by flight IC 556 at Chennai Anna International Airport; that
the detenu in his customs declaration submitted to the Customs Authorities
before he was intercepted declared that he had brought two checked in baggages
and one hand baggage; that at the time of interception, he was found in
possession of the said two checked in baggages, one baggage with a baggage tag
in his name and the other without a baggage tag and one hand baggage; that even
the said one baggage tag did indicate as 2/32 which means that the detenu had
booked two checked in baggages weighing 32 kgs.; that the said two checked in baggages
were examined by the Customs Officer in the presence of independent witnesses
and in the presence of the detenu himself and the seizure of the goods effected
therefrom.
Particularly
when in the declaration filed by the detenu he himself had shown that he had
brought two checked in baggages and the baggage tag did indicate that there are
two items, it baffles anyone's imagination as to how the detenu can now contend
that there was absolutely no material before the concerned authorities to prove
the ownership of the baggages in the absence of baggage tag or claim tag.
Further, this stand was not taken by the detenu in his statements made before
the Magistrate in the different applications filed in respect of the bail petitions.
Thus, we do not think that on this aspect there is no application of mind by
the authorities concerned and the decision reported in Chowdarapu Raghunandan
vs. State of Tamil Nadu & Ors., 2002 (3) SCC 754, cannot be made use of by
the learned counsel for the detenu in this regard.
Lastly,
it is urged on behalf of the detenu that on a solitary instance without any
propensity to evade duty should not be made a ground for detention and
particularly when his passport had been seized on the same day of his arrest,
there is no chance of his committing further acts of smuggling for which he has
now been detained. In this context, the learned counsel placed reliance o n the
decision in Rajesh Gulati vs. Government of NCT of Delhi & Anr., 2002 (6)
SCALE 142, to contend that retention or cancellation of passport will cripple
the smuggling activity inasmuch as there is no material to show that even in
the absence of a passport he would be able to continue the activities in
respect of which he is detained; that such an attempt would be merely
speculative based on no material.
The
stand of the department is that whether there can be detention on a solitary
instance would depend on the facts and circumstances of each case, on the
magnitude of the case and other attendant circumstances. In the present case,
it is stated that detenu's passport disclosed that he had made several trips
abroad and he was not a man of such affluence as to make so many trips out of
the country unless they be in the context of his business activities.
Therefore, considering the number of trips he had made out of the country, the
volume of goods seized now and the prima facie misdeclaration of value, an
inference can be drawn that the detenu was a part of bigger network in bringing
the goods for commercial distribution inside the country by avoiding the
payment of duty. In this background, absence of passport will not be a handicap
to the detenu for his activities in the present case in which the fact
situation is different from the one available in Rajesh Gulati's case. Nor can
we confine the meaning of the word 'smuggling' only to going out of country and
coming back with goods which are contraband or to evade duty but may encourage
such activities as well by dealing in such goods.
Therefore,
we do not find any substance in any of the contentions urged on behalf of the detenu
and the petition therefore stands dismissed.
Back