MANITHODIKA ABDUL REHIMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed this writ petition under Art. 226 of the Constitution of India read with S. 482 of the Code of Criminal Procedure for issue of a writ of mandamus and/or a writ of certiorari for restraining the respondents, Union of India and State of Kerala from implementing the order of detention purported to have been passed u/S. 3(1) of the COFEPOSA Act 1974 on 7-11-87 and also restraining them from taking any steps or action pursuant to the aforesaid order of detention. A prayer is also made that the detention order may be set aside.

(2.) The brief facts of this case are that on 30-11-86 the Superintendent of Central Excise, Manjeri (Kerala) searched the residence of one T. A. Sirajuddin at Kuttipuram wherefrom nothing was recovered. But on questioning, he disclosed that he had buried 11 gold biscuits in the ground of his house, and then he dug out and recovered the biscuits wrapped in carbon paper and bearing foreign markings and of the value of Rs. 3,14,237/-. Sirajuddin is then alleged to have given a statement u/S. 108 of the Customs Act that the gold biscuits seized from the ground of his residential premises were, in fact, brought by one Abdurahiman of Kanmanam, Thoovakkad (Kerala), and that one Abdurahiman of Karimbil had informed him that the other Abdurahiman of Kanmanam was bringing his goods from Gulf countries to Delhi. Besides giving other details he also informed that he had learned that a gang including the aforesaid two Abdurahimans (one of which is the petitioner) were attempting to apprehend him and so he buried the biscuits at the back of his house. Sirajuddin gave more particulars of the manner in which he was kidnapped in an Ambassador Car by a group of people and kept in confirment till the morning of 30-11-86. He also named the petitioner and the other Abdurahiman as those persons who had kidnapped him. The search of the residential premises of the petitioner, however, on 11-12-86 did not yield any incriminating articles. A further statement of Sirajuddin was recorded wherein he has stated that his earlier statement dated 30-11-86 contained several mistakes. So he disclosed certain new facts. On 5-12-86 and 11-12-86 statements of Issac Babu and the other Abdurahim respectively were recorded which corroborated the statement of Sirajuddin. Certain more incriminating statements were made against the petitioner by the other Abdurahiman from which it appeared that the petitioner while at Abu Dhabi and others were members of a smuggling racket and they offered good remuneration to the other Abdurahiman. So he came to Delhi on 24-11-86 from Abu Dhabi. When he came out of the Customs clearance the petitioner and his friend Sirajuddin were waiting outside the Airport. A Show Cause notice under S. 124 of the Customs Act was given to the petitioner on 13-5-87. Thereafter on 7-10-87 the impugned detention order was passed against him.

(3.) The detention order is thus being challenged at the pre-execution stage on behalf of the petitioner. Although a number of grounds have been taken but mainly three grounds are pressed before me. The first ground is that there is a long delay in passing the detention order against the petitioner. Still worse, the detention order has not been executed although a long time has elapsed. The second ground is that the petitioner had made a representation under S. 11 of the Act on 26-11-88 and the same was received by the Department on 29-11-88. In spite of the representation neither the detention order was revoked nor a report alongwith the grounds of detention and the detention order were supplied to the petitioner. The third ground is that the action under the provisions of COFEPOSA Act is precautionary in nature intended to prevent attempts at future smuggling. In the instant case the facts were not such as would justify and warrant the conclusion on the part of the concerned authorities that the petitioner is engaged in the act of smuggling. Even at the time of passing of the detention order the detaining authority was not aware that the petitioner was not in India at the time of the incident or on the date when the order of detention was passed and, therefore, the order of detention lacked subjective satisfaction of the detaining authority.