Madras High Court
Prashika vs Joint Secretary (Cofeposa) on 22 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
H.C.P.No.1740 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.10.2024
CORAM :
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HON'BLE MR.JUSTICE V.SIVAGNANAM
H.C.P.No.1740 of 2024
Prashika
W/o Arulanantharajan @ Arul .. Petitioner
v.
1. Joint Secretary (COFEPOSA)
Government of India, Ministry of Finance
Department of Revenue
Central Economic Intelligence Bureau (CEIB)
6th Floor, 'B' Wing, Janpath Bhawan
Janpath, New Delhi 110 001
2. Union of India rep by
Director General
Central Economic Intelligence Bureau
Government of India, Ministry of Finance
Department of Revenue
6th Floor, 'B' Wing, Janpath Bhawan
Janpath, New Delhi 110 001
3. Commissioner of Customs
Chennai-III, Customs House
Chennai 600 001
____________
Page 1 of 10
https://www.mhc.tn.gov.in/judis
H.C.P.No.1740 of 2024
4. The Superintendent
Central Prison-II, Puzhal
Chennai 600 066
5. Directorate of Revenue Intelligence
Chennai Zonal Unit
represented by the Senior Intelligence Officer
No.27, G.N.Chetty Road, T.Nagar
Chennai 600 017
(R5 impleaded vide order dated 30.08.2024
in Crl.MP.12125/24 in HCP.1740/24) .. Respondents
Petition filed under Article 226 of the Constitution of India, praying
for issuance of a Writ of Habeas Corpus, calling for the records pertaining
to the detention order in F.No.PD-12001/08/2023-COFEPOSA dated
20.12.2023 passed by the 1st respondent, quashing the same and directing
the respondents to produce the body of the detenu Arulanantharajan @ Arul
S/o Jayarajan @ Shanmuga Pillai now detained in the Central Prison-I,
Puzhal, Chennai as COFEPOSA detenu, before the Hon'ble Court and set
him at liberty.
For Petitioner :: Mr.R.Rajarathinam
Senior Counsel for
Mr.S.Ramachandran
For Respondents :: Mr.A.Kumaraguru
Senior Panel Counsel for R1 & R2
No appearance for R3
Mr.E.Raj Thilak
Additional Public Prosecutor for R4
Mr.Sai Srujan Tayi
Senior Standing Counsel for R5
____________
Page 2 of 10
https://www.mhc.tn.gov.in/judis
H.C.P.No.1740 of 2024
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM,J.)
The habeas corpus petition on hand has been instituted assailing the
detention order dated 20th December, 2023 issued by the Joint Secretary to
Government of India, Ministry of Finance, Department of Revenue, Central
Economic Intelligence Unit, COFEPOSA Wing, New Delhi, the first
respondent herein in proceedings bearing F.No.PD-12001/08/2023-
COFEPOSA against the husband of the petitioner, in exercise of the powers
under Section 3(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974, based on the ground case registered for
the offence under Section 104(6) read with Section 135(1)(a) of the
Customs Act against the detenu.
2. The learned Senior Counsel appearing on behalf of the petitioner
would submit that there is no material available on record to establish the
subjective satisfaction of the detaining authority for invoking the preventive
detention law against the detenu. The detenu has no antecedents nor any
criminal case has been registered or pending against him. In the absence of
____________
https://www.mhc.tn.gov.in/judis
any material, the impugned order has no legs to stand. With reference to the
grounds, the learned Senior Counsel relied on the judgment of the Apex
Court in the case of A.Sowkath Ali v. Union of India and others, 2000 SCC
(Crl.) 1304, where the Apex Court relied on the previous judgment in the
case of Ahamed Nassar v. State of Tamil Nadu, 1999 SCC (Crl.) 1469,
wherein it is held as follows:-
“20. So far as the stand of the respondent with
reference to the advocate's letter dated 19.4.1999 is
concerned it cannot be held to be a justifiable stand.
These technical objections must be shunned where a
detenu is being dealt with under the preventive
detention law. A man is to be detained in the prison
based on the subjective satisfaction of the detaining
authority. Every conceivable material which is
relevant and vital which may have a bearing on the
issue should be placed before the detaining authority.
The sponsoring authority should not keep it back,
based on his interpretation that it would not be of
any help to a prospective detenu. The decision is not
to be made by the sponsoring authority. The law on
this subject is well settled; a detention order vitiates
____________
https://www.mhc.tn.gov.in/judis
if any relevant document is not placed before the
detaining authority which reasonably could affect his
decision.”
Moreover, in respect of two other accused persons, the detention orders
have been quashed by this Court vide orders dated 29.04.2024 &
30.04.2024 in H.C.P.Nos.473 & 421 of 2024 respectively. Therefore, the
present petition is also to be considered.
3. Mr.A.Kumaraguru and Mr.Sai Srujan Tayi, learned Senior
Standing Panel Counsels appearing on behalf of the Department would
oppose the petition by stating that based on the confession statement of the
co-accused, namely, Santhoshkumar, the detenu in 34 previous occasions is
already involved in smuggling activities and therefore the authorities
competent invoked the preventive detention law. The detenu is a habitual
smuggler and having identified him as a habitual offender, the detaining
authority has passed the detention order. Though the impugned detention
order was issued on 20.12.2023, the detenu was arrested on 02.07.2024. The
phone calls between the co-accused and the detenu are also relied upon by
____________
https://www.mhc.tn.gov.in/judis
the detaining authority. Since materials are available on record, the
detaining authority subjectively satisfied and thus there is no infirmity and
the habeas corpus petition is to be rejected.
4. We have considered the submissions made on behalf of the parties
to the lis on hand. It is not in dispute that the detenu is not facing any
previous criminal case. Based on the ground case alone, the impugned
detention order has been issued in proceedings dated 20th December, 2023.
However, the detenu has been arrested on 02.07.2024. The confession
statement given by the co-accused, namely, Santhoshkumar, by itself,
cannot be relied upon for the purpose of tagging the detenu in respect of the
alleged offence. There must be clinching evidence to establish the link. In
the absence of any material evidence to establish that the detenu is to be
construed as a habitual smuggler, the detaining authority ought not to have
invoked the preventive detention law. Instead they can proceed against the
detenu in respect of the criminal case already registered.
5. Though the confession statement of an accused is admissible
____________
https://www.mhc.tn.gov.in/judis
against him under Section 108 of the Customs Act, it would be insufficient
for the purpose of fixing another person as an accused in the criminal case
in the absence of any further evidence.
6. Pertinently, the respondents are not able to produce any other
clinching material available on record at this juncture apart from the
confession statement of Mr.Santhoshkumar, co-accused in the criminal case.
Therefore, the subjective satisfaction arrived at by the detaining authority
would be insufficient for the purpose of invoking the preventive detention
law against the detenu. However, the prosecution may establish their case
before the Court concerned in the criminal case already registered against
the detenu. The observations made in this order would not have any
implication in respect of the prosecution case, which is to be proved before
the jurisdictional Court on evidence. The Court dealing with the case must
proceed uninfluenced by the observations made in this order. We are
confining this order only in respect of the preventive detention order
impugned herein which, in our opinion, would be not in accordance with the
scope of the preventive detention law. Therefore, the impugned detention
____________
https://www.mhc.tn.gov.in/judis
order is quashed and the habeas corpus petition is allowed. The detenu,
namely, Arulanantharajan @ Arul, S/o Jayarajan @ Shanmuga Pillai, aged
about 38 years, now detained at Central Prison-I, Puzhal, Chennai, is
directed to be set at liberty forthwith, unless his confinement is required in
connection with any other case.
Index : yes (S.M.S.,J.) (V.S.G.,J.)
Neutral citation : yes/no 22.10.2024
ss
To
1. The Joint Secretary (COFEPOSA)
Government of India, Ministry of Finance
Department of Revenue
Central Economic Intelligence Bureau (CEIB)
6th Floor, 'B' Wing, Janpath Bhawan
Janpath, New Delhi 110 001
2. The Director General
Central Economic Intelligence Bureau
Government of India, Ministry of Finance
Department of Revenue
6th Floor, 'B' Wing, Janpath Bhawan
Janpath, New Delhi 110 001
3. The Commissioner of Customs
Chennai-III, Customs House
Chennai 600 001
____________
https://www.mhc.tn.gov.in/judis
4. The Superintendent
Central Prison-I, Puzhal
Chennai 600 066
5. The Senior Intelligence Officer
Directorate of Revenue Intelligence
Chennai Zonal Unit
No.27, G.N.Chetty Road, T.Nagar
Chennai 600 017
6. The Public Prosecutor
High Court, Madras
____________
https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM,J.
AND
V.SIVAGNANAM,J.
ss
22.10.2024
____________
https://www.mhc.tn.gov.in/judis
