RAMLA Vs. STATE OF KERALA

JUDGEMENT

(1.) Questioning legality of detention order passed in respect of M. Andru (hereinafter referred to as 'detenu') in terms of Section 3(1)(ii) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'the Act'), this Habeas Corpus Application has been filed by his wife. Grounds of detention reveal that on 1-7-1999, one Yoosaf Kaipurath was intercepted on his arrival at Calicut Airport by Air India Flight from Dubai and after his customs clearance through counter No. 1, on the reasonable belief that he was carrying non-duty paid gold and other contraband goods. In the presence of two independent witnesses, his travel documents and baggages were examined. When he was asked whether he carried any dutiable items or gold, he replied in the negative. On reasonable belief that he had concealed undeclared gold in his baggage, Superintendent (Air Intelligence Unit), Calicut Airport requested two independent witnesses to witness the examination of his body and baggage. When detenu was asked to open a rexin suitcase, he replied that he was not having its key and stated that the same was given to him by one Hameed from Dubai to hand over the same to a person who would identify him by calling "Yoosaf son of Mohammud". Subsequently, the zip from the lock was removed and suitcase was opened. Articles contained in the suitcase were taken out and on examination it was found that gold of 24 Ct. purity weighing 2323 grams valued at Rs. 9,61,722 (approx.) concealed in it. On interrogation, he stated as to how the articles came to his possession. He said that he was given the suitcase with an instruction to hand it over to a person who will call him "Yoosaf son of Mohammud" while going out of the Customs Baggage Hall of Calicut Airport. Said Yoosaf Kaipurath was arrested on 2-7-1999. Another person, Mahammud Valiyaparambath, was also arrested. On search of his articles, contraband items worth nearly Rupees 11,52,576/- were seized. On enquiry, he stated that said articles were handed over to him by one Valayam Hameed at Dubai with instruction to hand it over to a person who will call him by his name or his wife's name Saibu. On the basis of enquiry made, detenu was arrested on 2-7-1999 and produced before Chief Judicial Magistrate, Manjeri who remanded him to judicial custody till 16-7-1999 and the order of remand was extended up to 30-7-1999 by Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam. Order of detention was passed on 19-8-1999 with a view to prevent him abetting smuggling activities. He was intimated that he can make representations, if so desired, against his detention to the Detaining Authority, Central Government and Advisory Board. His representations dated 4-12-1999 were rejected by State Government and Central Government on 6-12-1999 and 11-1-2000 respectively.

(2.) In support of the application, it is stated that a very relevant factor, namely, that detenu was released on bail by this Court in Cri. M. C. 3606 of 1999 by order dated 12-8-1999, had not been placed before detaining authority and copy of the order has not been supplied along with grounds of detention. Application for bail and order granting bail are relevant documents which were available long before order of detention was passed. These aspects were not considered by detaining authority. It is highlighted that in the ground of detention, it has been clearly stated in paragraph 15 that Chief Judicial Magistrate, Manjeri remanded detenu to judicial custody till 10-7-1999 and the same was extended upto 30-7-1999. Order of remand has also not been supplied along with grounds of detention, though that was relied upon. In the counter-affidavit filed, there seems to be no serious dispute about the fact that order of bail was passed by this Court prior to the order of detention. Learned counsel appearing for State and Central Governments have submitted that these factors cannot be considered to be fatal to detention as the order of bail was within the knowledge of detenu and was passed on the basis of his application non-supply does not prejudice him in any manner.

(3.) Though several other points have been urged in support of the application, we do not think it necessary to go into them in view of the fact that the effect of non-mention about the bail order and non-supply of copies thereof would decide the fate of the case.