LAWS(KER)-2001-3-12

K V ASHARAFF Vs. STATE OF KERALA

Decided On March 01, 2001
K.V.ASHARAFF Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) The question that is posed for consideration is whether non consideration of the bail application and the order granting bail by a Magistrate would vitiate the Detention order issued under S.3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA') especially when those documents were placed before the Detaining Authority by the sponsoring authority.

(2.) This writ of habeas corpus is moved by the brother of one A. Sharaffudin who is under detention in the Central Prison, Thiruvananthapuram under S.3(1) (i) of COFEPOSA to release and set him at liberty. Detention order dated 1.6.2000 is challenged on various grounds. Main ground is non application of mind by the Detaining Authority on the bail application preferred by the detenu and the bail order in Crl.M.P.No. 4161 of 2000 dated 22.5.2000 passed by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.

(3.) Short facts which are necessary for the disposal of the case are as follows: Superintendent of Air Intelligence Unit, Calicut Airport intercepted the detenu on 13.4.2000 on his arrival at the baggage hall of Calicut Airport by Jet Airways flight. On examination it was revealed that he had attempted to smuggle into India by concealment and by non declaration of 30 biscuits weighing 3495 grams of foreign origin gold valued at Rs. 15,72,750/-. A mahazar was prepared on 13.4.2000. Voluntary statement was given by the detenu on the same day itself before the Superintendent, AIU, Calicut. Sharafuddin was then arrested on 13.4.2000 and produced before the Chief Judicial Magistrate, Manjeri on 14.4.2000 and was remanded to judicial custody. Remand order was extended upto 12.5.2000 by the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam. Detenu then moved Crl. M.P. No.4161 of 2000, before the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam, which was dismissed on 2.5.2000. Another application for bail was submitted before the District and Sessions Court, Ernakulam. Complainant filed objection on 5.5.2000 against the said application. After hearing both parties, the bail application was dismissed by the District and Sessions Judge, Ernakulam. Yet another bail application was moved by the detenu before the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam on 8.5.2000. On 22.5.2000 complainant filed objection to the said bail application. Additional Chief Judicial Magistrate (Economic offences) Ernakulam passed the following order: