K.S.Nagamuthu Vs. State of
Tamil Nadu & Ors
[2005] Insc 644 (16 November 2005)
B.P.SINGH & R.V.RAVEENDRAN
This appeal, by special leave, has been preferred against the judgment and
order of the High Court of judicature at Madras dated 6th August, 2004 in Habeas Corpus Petition No.164 of 2004. The High Court, by its impugned judgment
and order, dismissed the Writ Petition preferred by the appellant challenging
the order of detention dated January 9, 2004 passed under Section 3(1)(i) of
the Conservation of Foreign Exchange & Prevention of Smuggling Activities
Act, 1974 (hereinafter referred to as 'COFEPOSA').
The grounds of detention are that the appellant holding an Indian passport
arrived from Singapore by Indian Airlines flight on 28.12.2003. He had one checked-in
baggage with him namely, a JVC colour T.V. 20". He was intercepted by the
Custom Intelligence Officers near the exit gate of the Anna International
Terminal while he was going out of the hall opting for the green channel. Since
he was suspected to be carrying contraband in his baggage, he was intercepted
and the two baggages with him were searched. Since the T.V. set was found to be
unusually heavy, it was dismantled and it was found that the picture tube was
tampered with. The picture tube was broken open and it was found to contain
cellphones stuffed in the hollow space of the picture tube, 110 in number, of
Sony Erricson T610 and 15 cellphones of Samsung SGH E415. The cellphones were
valued at Rs.16,25,000/-. The said cellphones had not been declared by the
appellant.
It is the case of the respondent that the appellant gave a voluntary
statement admitting his guilt and, therefore, he was arrested on 29.12.2003 and
remanded to judicial custody.
The case of the appellant is that on 6.1.2004 he gave a letter retracting
his so called voluntary statement made on 28.12.2003 and alleging that the same
had been secured from him by applying third degree methods and by coercion, and
that the contraband did not belong to him but belonged to some other person,
and he was merely carrying the T.V to India without knowledge of the fact that
the contraband was concealed in the T.V. According to the appellant, the
retraction was communicated to the concerned authorities and the said letter
was received on 7.1.2004 as is evidenced by endorsement made by the Assistant
Commissioner (Adjudication-AIR), Customs House, Chennai-1. It appears that the
letter of retraction was addressed to the Superintendent of Customs (Air),Customs
House,Chennai-1.
The sole point urged before us is that this document namely, the letter of
the appellant retracting the alleged voluntary statement made before the
Customs officials was not placed before the detaining authority who passed the
impugned order on January 9, 2004. It is not disputed before us that if such a
document had been sent to the concerned authority, it was a document which was
relevant and ought to have been considered by the detaining authority. In view
of the admitted position, the only matter to be examined is whether the
appellant had sent a letter of retraction to the concerned authority.
It is not disputed before us that the letter was addressed to the
Superintendent of Customs (Air), Customs House, Chennai-1 and was sent through
the Counsel for the appellant. The receipt disclosed that the letter was
received on 7.1.2004 and the acknowledgment contains the seal of the Assistant
Commissioner of Customs (Adjudication-AIR), Customs House, Chennai-1. These
facts are not in dispute but the contention urged on behalf of the respondents
is that the letter was not addressed to the concerned authority.
According to the respondents the concerned authority in this case was the
sponsoring authority namely, the Additional Director General, Directorate of
Revenue Intelligence, Chennai. According to the respondents, the letter was
never delivered in the office of the sponsoring authority and therefore, there
was no proper communication by the appellant. It was submitted that the
appellant ought to have given the letter to the Superintendent of Jail who
would have sent it to the concerned authority, but he chose to send the letter
through his Advocate.
The appellant on the other hand, urged before us that for non-consideration
of this relevant document the order of detention is vitiated.
It was urged before us that having regard to the facts of the case, three
proceedings could have been resorted to namely, a prosecution under the
ordinary law, an adjudication proceeding under the Customs Act, and a detention
under COFEPOSA. The submission urged on behalf of the respondents assumes that
the detenu could well anticipate that he shall be detained under the provisions
of COFEPOSA, an assumption which cannot be justified in the facts of this case.
The appellant had been arrested and remanded to custody. Since all detenues are
entitled to legal assistance, he thought it safe to send his letter of
retraction through his Advocate, and we find no fault with that, provided the
letter was handed over to the concerned authority. The question, however, is
who should be considered to be the concerned authority in the facts and
circumstances of this case.
We cannot accept the contention urged on behalf of the respondents that the
letter should have been addressed to the sponsoring authority in this case
namely the Additional Director General, Directorate of Revenue Intelligence,
Chennai-1 on whose recommendation the detaining authority passed the order of
detention. This is because the date on which the said retraction was made and
communicated by the appellant, no detention order had been passed and
therefore, there was no question of the detenu knowing that the communication
has to be addressed to the sponsoring authority. In fact, on that date, to the
knowledge of the appellant detenu there was no sponsoring authority.
The question then arises as to whom the letter should have been addressed.
It appears that the detenu had handed over the letter of retraction to his
Advocate, who got it delivered in the office of the Assistant Commissioner of
Customs (Adjudication-AIR), Customs House, Chennai-1, though it was addressed
to the Superintendent of Customs (Air), Customs House, Chennai-1. It appears
that both the offices are located in the same building namely, the Custom House
at Chennai. Having regard to the facts and circumstances of the case, we cannot
say that the letter was not communicated to the appropriate authority because
on that date, the appellant had no knowledge that the order of detention was
about to be passed under COFEPOSA. The letter undoubtedly was received by
Assistant Commissioner of Adjudication-AIR whose office was located in the
Custom House. The Assistant Commissioner of Customs is a responsible officer
and should have known to whom such letters should be sent. In these circumstances,
we cannot accept the submission urged on behalf of the respondents that the
letter of retraction was not communicated to the appropriate authority. It is
not disputed that the letter addressed to the Superintendent of Customs (Air),
Customs House, Chennai was, in fact, delivered on 7.1.2004 as is apparent from
the seal on the receipt and as admitted in the counter affidavit by the State
of Tamil Nadu. There is no reason why it should not have been placed before the
detaining authority for his consideration. It has not been disputed that the
said letter of retraction contained relevant material, which ought to have been
considered by the detaining authority before passing an order of detention.
Since relevant material was withheld from the detaining authority, the order of
detention must be struck down as being illegal. We accordingly, quash the order
of detention.
We should not be understood to have laid down a broad proposition to the
effect that a letter addressed to any officer of any Department of the
Government would amount to service thereof on the State. It depends on the
facts and circumstances of each case. In the facts of this case, we have found
that the detenu addressed the letter of retraction to a responsible officer of
the Department of Customs and in the circumstances he had no choice in the
matter, as he could not anticipate that an order of detention may be passed and
therefore, the letter should be addressed to the sponsoring authority.
This appeal is, accordingly, allowed.
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