ERUKULANGARA KUNHUMOHAMED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is under detention in pursuance of an order of detention dated 9th March 1988 passed by the Government of Kerala under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA ACT for short) on the view that the detention of the petitioner was necessary for preventing him, from abetting the smuggling of gold and dealing in smuggled gold otherwise than by engaging in transporting or concealing or keeping smuggled gold. The provisions thus of sub-sections (ii) and (iv) of Section 3(1) of COFEPOSA Act were invoked.

(2.) The facts, as set out in the grounds of detention, reveal that one Thiruthy Mohamed Kutty landed at Trivendrum Airport on 27th June, 1987 from Sharjah and on suspicion his baggage was checked and one bed was found to contain, on being cut open, 43old biscuits and 3 gold coins, wrapped in separate coloured paper bit and covered with adhesive tape, totally weighing 5,009.500 gms. of the value of Rs. 13,59,045.00 Finding it to be a case where gold had been smuggled into India in the shape of biscuits and coins stealthily and surreptitiously in violation of the provisions contained in Customs Act, 1962 and thus liable for confiscation to the Government, the same was seized under a mabazar duly prepared and the aforesaid Thiruthy Mohamed Kutty was taken into custody along with other relevant documents such as Air India boarding pass ; Air India ticket used from SharJah to Trivendrum as well as his Air India ticket from Bombay to Ahu Dhabi ; Air India luggage tag and his Indian passport together with other four documents and photographs which were serially numbered 'I' to '5'.

(3.) On the same day, Thiruthy Mohamed Kutty made statement to the authorities under section 108 of the Customs Act, revealing that he was employed at Abu Dhabi as a domestic servant in the house of a Arab and that on arrival at Trivendrum airport, his baggage was searched by custom officer on duty, and the detailed examination of the bed had yielded the recovery of 43 gold biscuits as well as 3 gold coins and that this bed containing the aforesaid gold had been entrusted to him by one Kammu at Abu Dhabi, who was a native of Mambram in Malappuram District and that the said Kammu was known to him and so he had agreed to carry the bed with gold and coins concealed therein, in consideration of the remuneration offered to him by said, Kammu. He revealed that Kammu's instructions were that he was to take the bed to his house at his (Kutty's) native place and deliver the same to two persons who would call on him with Kammu's photograph and that the document marked '2', which had also been seized from him amongst others, was given to him by Kammu at Abu Dhabi along with bed with instructions that it should also be given to the persons who would come to collect the bed and then they would pay him the agreed remuneration. According to Thiruthy Mohamed Kutty, Kammu had further directed that in case nobody turned up to collect the bed, then he should go to Mambram i.e. Kammu's village and enquire about his residence at a stationary shop in the village near the mosque and entrust the bed and the letter to some one at his house and collect his remuneration, He further revealed that the said Kammu was engaged in collecting money from persons at Abu Dhabi and sending that to India as 'tube money'. After narrating certain other details of search of Kutty's house on 28th June 19^7, the grounds straightaway proceeded to say that on 8th October, 1987, the house of Erukulangara Kunhimohamed i.e. the detenu was searched and there two paper packets containing Indian currency of Rs. l,20,000.00 in six biindies of 100 numbers of Rs. 100.00 denomination in each packet were recovered from the secret cavity of a wooden table found in one of the rooms in the house ; besides one Air India ticket and five other documents which were marked as 1' to '6'. This Indian currency was also seized on the reasonable belief that they were the sale proceeds of the foreign gold biscuits and were, therefore, liable to confiscation to the Government. The Air India tickets and other documents were also seized for further action.