SHANKAR LAL Vs. ROSHAN LAL

JUDGEMENT

(1.) This is a petition praying for the issue of a writ Habeas Corpus for release of the petitioner who has been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 ("COFEPOSA") under a detention order dated 4.1 1.1985.

(2.) It is not necessary to set out in detail the grounds of detention communicated to the petitioner because we find that the writ petition has to be allowed on a very snort point which we shall refer to a little later. We may just set out a few relevant dates and events. Ihe petitioner arrived at Trivandrum airport from Kuwait on 9.6 1985. He thereafter proceeded to a place called Thikkodi in taxi along with two other persons. The taxi was intercepted on the way by the officers of the customs and the petitioner was interrogated by the authorities on certain allegations of smuggling gold between the 10th June, 1985 and 12th June, 19S5 when be was produced before the Chief Judicial Magistrate at Calicu,. Subsequently, on 25th August, 1985. the Customs Department filed a complaint in the Court of the Additional Chief Judicial Magistrate, Trivandium urder section 135(1) (i) of the Customs Act and Section 85(') (i) Geld Control Act. The petitioner applied to the Court of the Addl Chief Judicial Magistrate for bail on 12th June, 1985, and he was enlarged on bail on the 18th June. 1985. The trial agaiast the petitioner coaomenced on the 13th September, 1985 and came to a dose on 7th December, 1985. The learned Addl. Chief Judicial Magistrate pronounced judgment on the 19th December, 1985 by which he convicted the petitioner-accused and sentenced him to suffer rigorous imprisonment for a" period of two years for the offences under Section 135(1) (i) of the Customs Act and Section 85(1 j(i) of the Gold Control Act. In the meantime, the Government of Kerala, through the compelect authority, issued an order of detention of the petitioner in exercise of the powers under the COFEPOSA. The grounds of detention were served on the petitioner on the 18th November; 1905. On the 9th December. 19S5 a declaration under Section 9 of the COFEPOSA. was served on the petitioner. On 13th December, 1985 the petitioner made a representation seeking the supply of certain documents but this was rejected by the Central Government on 26.th December, 1985 and by the Kerala Government on 7th January. 1^86. Ihe case of the detenu was referred to the Advisory Board and, on the advice of the Beard, the derention of the petitioner stood confirmed on 18.4.191-6.

(3.) Counsel for the petitioner has taken a short point which, in our opinion, has to be accepted. His submission is that there has been suppression of vital and material facts from the detaining authority. It is pointed out that the criminal complaint had been filed before the Addl. Chief Judicial Magistrate on the 25th August, 1985, the trial had also started in September, 1985 and by the time the detection order was passed, the trial had also progressed to a considerable extent The details of the complaint filed before the Addl. Chief Judicial Magistrate were not placed before the detaining authority. Again, as pointed out earlier, the petitioner made an application for bail which was accepted on 18th June, 1985. The order passed on the bail application by the trial court was also not brought to the notice of the detaining authority. Suppression of these vital and material facts from the detaining authority, the counsel for the petitioner submits, vitiate the detention.