T P MOIDEEN KOYA Vs. GOVERMENT OF KERALA

JUDGEMENT

(1.) This petition under Article 32 of the Constitution has been filed for quashing and setting aside the detention order dated 21-1-2002 issued by Government of Kerala for detaining the petitioner T.P. Moideen Koya under Section 3(i)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA').

(2.) The residence of one Pulikuth Hamzath Abdussalam alias Kunjumon was searched on 18-8-2001 and gold biscuit of foreign origin weighing 4430.8 grams valued at Rs. 19,80,567, Indian currency worth Rs. 15,24,500/- and foreign currencies worth Rs. 1,39,360 were recovered and some incriminating documents and a computer with accessories were also seized. The statement of M. Mohammed Mustafa, a distant relative and employee of Kunjumon which was recorded on 19-8-2001 and the seized documents showed that petitioner Moideen Koya had dealt with 290 smuggled gold biscuits valued at Rs. 1.5 crores. He had transaction worth Rs. 18 crores with Kunjumon during the period 1-8-2001 to 15-8-2001. The Government of Kerala thereafter passed a detention order on 21-1-2001 for detaining the petitioner under Section 3(i)(iv) of the COFEPOSA. The petitioner absconded and proceedings under Section 7(1) of the Act had to be initiated. He surrendered before the court of Additional Chief Judicial Magistrate (Economic Offences), Ernakulam on 4-9-2002 and was taken into custody. The detention order was then served upon him in jail on 12-9-2002. The wife of the petitioner, namely, Safiya filed a habeas corpus petition being O.P. No. 2956 of 2002 in the Kerala High Court seeking quashing of the detention order and for setting him at liberty. The High Court dismissed the habeas corpus petition on 11-2-2003. Safiya then preferred Special Leave Petition (Criminal) No. 1215 of 2003 (re-numbered as Criminal Appeal No. 913 of 2003 after grant of leave) in this Court which was also dismissed by a detailed order on 28-7-2003. The judgment is reported in 2003(7) SCC 46. Thereafter, the present writ petition has been filed under Article 32 of the Constitution for quashing of the detention order. The petition, has, presumably, been filed to get out of the clutches of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, as even before filing of the petition, the petitioner had served out the period of detention and had been released.

(3.) Shri A. Sharan, learned senior counsel for Union of India has raised a preliminary objection regarding the maintainability of the present petition. Learned counsel has submitted that the exact issue raised before this Court in the Special Leave Petition filed against the judgment of the Kerala High Court was whether the detention order passed against the petitioner was valid and proper having regard to the provisions of COFEPOSA and Article 22(5) of the Constitution and this Court having upheld the validity of the detention order and also the continued detention of the petitioner, the present petition under Article 32 of the Constitution filed by him is not maintainable. Learned counsel for the petitioner has, on the other hand, submitted that as the detention order passed against the petitioner violated his fundamental right, his right to approach this Court by way of a petition under Article 32 is guaranteed under the Constitution and cannot be taken away by any technical consideration.