JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a petition under Art.226 of the Constit-tuion for a writ of habeas corpus. By a detention order passed by the Government on 13-8-1981 under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA') the detenu Dharmakannu John was directed to be detained and the order was executed by the C. I. of Police, Vizhinjam by apprehending the petitioner on F9-8-1981 and detaining him in the Central Prison, Trivandrum. The order Ext. P1 stated that he is being detained with a view to preventing him from smuggling goods and engaging in transporting smuggled goods and dealing in smuggled goods. The grounds of detention were served on him on 20-8-1981. Briefly stated the grounds disclosed the following material against the detenu; Early in 1979 the Collectorate of Customs and Central Excise bad intelligence that the detenu and his brother D. Joseph were indulging in smuggling goods from Sri Lanka to India by mechanised boats and were disposing of the smuggled articles in Tamil Nadu and south Kerala. In February 1981 following a specific information to the effect that a landing of contraband goods had taken place near Pozhiyoor on the Tamil Nadu-Kerala border, the officers of the Customs Preventive and Intelligence Unit, Trivandrum went into action and in a period of three weeks starting from 7-2-1981 effected seizure of textiles, electronic goods and other miscellaneous items of foreign origin from various persons at Kaliyikavila and Trivandrum. The statements recorded from connected persons as a sequel to the seizure clearly established that the detenue and his brother Joseph were the brains behind the landing of contraband goods at Pozhiyoor and that the detenue had also played an active role in arranging the concealment, storage and disposal of smuggled goods in various places. So the detenue, a Head Constable in the Armed Reserve, stationed at Trivandrum Air Port was summoned for detailed interrogation. On 10-2-1981 a summons was issued to the detenue through the Circle Inspector Airport Security and he was brought to the Central Excise Division Office at 1.00 P M. and was interrogated from 3 P.M.to 7 P.M. The persons from whom the goods were seized and the goods were paraded before Mr John. Those persons identified the detenue as the person who used to go to their house or business place with radio-tape recorders, textiles etc. and collect money. Though the detenue denied the transaction during interrogations, during a casual talk with the officers in the early hours of 11-2-1981 he disclosed his dealings in smuggled goods and also the names of two other persons, Palayam Peerukannu and Taha of Vallakadavu to whom he supplied the smuggled goods. Thereafter those persons were found out and questioned. They also mentioned the name of the detenue as the person who gave them the smuggled goods and that the detenue had told them of the search and seizure of goods by the Customs Officers and of the need to conceal the goods. The officers wanted to further interrogate the detenue on 11-3-1981 but could not as the detenue on seeing the officers have successfully unearthed the nefarious activities, when he was alone in the room broke a glass bottle and hurt himself to escape further questioning on that day He was then hospitalised. After he was discharged from the hospital a fresh summons was issued by the Superintendent, Customs Preventive directing him to appear on 30-3-1981 for further interrogation. But the detenue did not appear but filed a medical certificate and sought exemption from appearance Another summons dated 30-5- 1981 directing him to appear in the Central Excise Divisional Office on 5-6-1981 had been issued but so far he did not appear.

(2.) COUNSEL for the detenue did not dispute that the aforesaid material disclosed in the grounds was prima facie sufficient to show the detenue's involvement in the racket of smuggling goods into India and transporting and dealing in them, but he challenged the detention order on the ground that procedural safeguards had not been followed vitiating the requisite satisfaction on the part of the detaining authority under S.3(1). He also challenged the detention on the ground that there was unexplained delay in considering his representation against the detention order and the action of the customs authorities was vitiated by mala fides. We will take these grounds of challenge one by one.

(3.) THE main point of attack on the detention order is that material and vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or other were not placed for consideration or considered by the detaining authority before issuing the detention order. It is argued that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order is vitiated in this case by the failure to consider certain facts which are contended to be material and vital. According to the petitioner and it is not disputed that the facts to pass the detention order were furnished by the Collector of Customs. In the counter- affidavit it is mentioned that the grounds for detention were furnished by the Collector as per his report dated 10-7-1981. Subsequent to 5-6-1981 the day the detenu was required to appear before the Central Excise Office, Trivandrum, be moved Criminal M.P. 256 of 1981. a petition for anticipatory bail before the Sessions Court, the second respondent had been made a party to it, the latter had filed a counter-affidavit Ext. P-8 on 1-7-1981 resisting the application that on 13-7-1981 by Ext. P-4 order bail was granted by the Sessions Court and thereafter he appeared before the Customs Authorities accompanied by an advocate and gave a statement on 24-7-1981 and 3-8-1981 denying the correctness of all accusations made against him by the various persons from whom goods were seized. He also denied that he ever admitted on 11-2-1981 to the Customs Official that he had complicity in the smuggling of goods and dealing in them. His combined statement is produced as Ext. P-6. THEse facts, according to the petitioner, were not placed before and considered by the Government before passing the detention order Ext. P-l on 13-8-1981. THEse facts are stated to be material and vital. In support of this submission the counsel for the petitioner placed strong reliance on the decision of the Supreme Court in Ashadevi v. K. Shivraj (AIR. 1979 SC. 447.) In this case in passing the detention order the detaining authority based its decision on the detenu's confessional statement made earlier before the Customs Officers. THE said confessional statements were subsequently retracted by the detenu at the first available opportunity while be was in judicial custody. This fact was not placed before nor considered by the detaining authority in passing the order. In such circumstances the Supreme Court observed at page 450,