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CASE NO.: Appeal (crl.)  500 of 2005

PETITIONER: K.S.NAGAMUTHU                            

RESPONDENT: STATE OF TAMIL NADU & ORS.               

DATE OF JUDGMENT: 16/11/2005

BENCH: B.P.SINGH & R.V.RAVEENDRAN

JUDGMENT: J U D G M E N T

                        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.

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       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 saf e  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.