T U ASHRAF Vs. STATE OF KERALA

JUDGEMENT

(1.) Heard Mr. Sudheendra Kumar for the appellant and Mr. Alexander Thomas, Government Pleader for the State.

(2.) The appellant herein is the petitioner in the Original Petition, which was filed challenging Ext. P 1, issued by the Government of Kerala dated 5-2-96 in exercise of its powers conferred by Section 3(1)(i) and 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), detaining the petitioner herein with a view to preventing him from smuggling goods.

(3.) According to the appellant he is employed in Dubai. A detention order was passed on 5-2-96 against him on the ground that three cartons of duck eggs attempted to be exported to Dubai by one Messrs. Fathima Enterprises, Moovattupuzha, contained concealed foreign currency to the tune of Rs. 45,11,588.75 when the D. R. I. Authorities examined the same at Trivandrum Air Cargo Complex. The statement of one Yusuff, Managing Director of M/s. Fathima Enterprises, Muvattupuzha was recorded by the authorities in connection with the seizure under Section 108 of the Customs Act, 1962. Acc-ording to the appellant, the said statement of Yusuff was retracted by petition dated 27-7-95 alleging threat and duress. It is also submitted that at the alleged time of seizure the appellant was at Dubai and his address was known to the Senior Intelligence Officer, Directorate of Revenue Intelligence, Trivandrum. The said Officer did not take any steps to issue summons to the appellant to his known address at Dubai and record his statement, but issued summons to his address at Moovattupuzha where his aged mother was residing. According to the appellant, the summons was not served on him and that Ext. P-1 order was passed without hearing him or without having any evidence against him, other than the statement of the said Yusuff. It is alleged that Ext. P-1 order was passed mechanically, without any subjective satisfaction of the second respondent. It is also alleged and argued at the time of hearing that even though the order of detention was passed on 5-2-96, no steps have been taken by the respondents to implement the order of detention till date, though the address of the appellant was known to them. The non-execution of the order of detention even after an unexplained period of three years and four months has taken away the live and proximate link between the grounds of detention and the very purpose of detention. It is the case of the appellant's counsel that if the purpose of detention is the prevention of smuggling activities, live and proximate link must always be there in justification of preventive detention and if it is not there, justification for detention cannot be there. Therefore, the satisfaction that immediate detention of the appellant is required, cannot be genuine. With these allegations the appellant filed the Original Petition with a prayer for a mandamus directing the respondents not to take further steps pursuant to Ext. P-1 detention order and detain the appellant on the basis of that order. The second respondent filed a detailed statement on 28-6-99 and an additional statement on 31-7-99.