PARAKADAVATHU MOHAMED KUNJI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who himself is a detenu came to be detained pursuant to a detention order passed under Sections 3(1)(i),3(1)(ii)and3(l)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act of 1974 by the Government of Kerala with a view to preventing him from smuggling goods, abetting the smuggling of goods and engaging in transporting smuggled goods.

(2.) This detention order was passed pursuant to an investigation into an incident dated 15th September, 1983 when two truck loads of contraband foreign goods were caught by the customs authorities and on investigation some persons were found involved in the acts of smuggling, one of which is the detenu petitioner who immediately after the incident fled the country and went abroad. The petitioner was, however, arrested pursuant to this detention order on 20th August, 1987 when he was taken into detention. The detention order actually was passed on completion of the investigation on 15th June 1984. It appears that the State government followed the procedure laid down by Section 7 of the COFEPOSA Act and the petitioner detenu came back to India under that pressure and before surrendering filed a writ petition in the High Court of Kerala which was dismissed on the ground that the detention order was not enclosed with the writ petition. Obviously, the writ petition had to be dismissed as the detenu was not in wrongful confinement at that stage.

(3.) The continued detention of the petitioner detenu has been challenged on various grounds. But since one of the points appeals to me and I find that the detention order cannot be sustained I would like to decide the petition on that point alone without going into the merits or otherwise of the other contentions raised in the writ petition. Before I proceed in the matter I would at this stage like to dispose of the preliminary objections of Mr. G. Prakash, learned counsel for the State of Kerala, that the writ petition is not maintainable as similar writ petition has been dismissed by the High Court of Kerala. I do not subscribe to the view taken by Mr. G. Prakash as none of the grounds raised in the writ petition was considered by the High Court and the writ petition was dismissed in limine for the simple reason that the petitioner was not in confinement muchless in illegal confinement and, therefore, the petition for habeas corpus could not be entertained. Now, the petitioner is, in fact, in confinement pursuant to a detention order and what is under challenge before this court is the validity of the detention order. Earlier even though the validity of the detention order was also challenged in that writ petition, there is no finding in respect of the same. The preliminary objection, therefore, is over-ruled.