ASSIA Vs. STATE OF KERALA

JUDGEMENT

(1.) Detention of Mohammed Kutty (hereinafter referred to as 'detenu') pursuant to an order of detention in terms of S.3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'the Act') has been challenged by his wife. Pursuant to order of detention dated 13.3.1997, detenu was arrested on 17.4.1999 and is presently detained in Central Prison, Thiruvananthapuram. Grounds of detention were supplied to detenu on the date of arrest. Written representations dated 14.5.1999 and 19.5.1999 were sent by detenu's counsel to Superintendent of Central Prison for getting signature of detenu and sending to State of Kerala and Union of India. Written representations were sent to detaining authority and Central Government requesting for revocation of order of detention. State Government rejected detenu's representation on 25.5.1999, while Central Government rejected it on 8.6.1999. As required under the Act, reference was made to State Advisory Board. The said Board met, heard detenu and sent its report dated 16.6.1999 to the effect that there was sufficient cause for detention of detenu. Order of confirmation was passed on 25.6.1999 confirming detention for a period of one year from the date of detention.

(2.) The main ground of challenge to order of detention is that the order of detention was passed on 13.3.1997 (Ext. P1) and there was inordinate delay in executing the same and as such, order of detention is vitiated. Counter affidavit has been filed by State Government, inter alia, taking the stand that detenu was concealing himself to avoid arrest and went underground. Hence, action was initiated against him under S.7 of the Act and an order was published in the extraordinary gazette directing detenu to appear before Superintendent of Police, Malappuram within 30 days of its publication. Chief Judicial Magistrate, Manjeri was also required to initiate action against detenu. It is stated that the stand of petitioner that detenu was very much available in the place known to Police authorities is not factually correct. Strong reliance is placed on the report of the Superintendent of Police, Malappuram addressed to the Principal Secretary to Government, Home (SSA) Department indicating the date of visit of police officials to different places and the names of persons whom they contacted.

(3.) It is seen that though order of detention was passed on 17.3.1997, no action was taken between 17.3.1997 and 15.4.1997. Similarly, visit has been made after considerable length of time on several occasions and a pattern of visiting fortnightly appears to have been adopted since January 1998, except between 16.11.1998 and 15.12.1998 upto mid January 1999. Additionally, we find that departmental adjudication proceedings were initiated on 20.2.1997 under the Customs Act, 1962 (in short 'Customs Act'). Notice was issued under S.124 of the Customs Act and in response to that on 15.6.1997, an advocate filed vakalathnama wherein it has been clearly stated that detenu wanted a personal hearing through his advocate. Records produced by learned counsel for State indicate that the order under S.7(1)(b) of the Act was passed on 16.10.1997 and the Chief Judicial Magistrate, Manjeri was required to take action on the said date. Obviously, therefore, action under S.7 was taken after six months of the order of detention.