ROSA PAILY Vs. STATE OF KERALA

JUDGEMENT

(1.) Detenu, Joseph Paily, through next friend challenges an order of detention Ext. P5, made under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (shortly called COFEPOSA Act hereinafter), the detenu who was employed outside India, came on leave and landed at Bombay on 9-9-1990. Later, he proceeded to Kochi, by an Indian Airlines flight on 11-9-1990. Customs Officers at Cochin Airport, on suspicion examined his baggage and found four gold biscuits in a handbag. The detenu submits that the bag was entrusted with him by his friend and copassenger Usman. He told so to the Customs Officers, who heedless of his protestations, took him into custody. On 24-1-1991, a preliminary order of detention was made (Ext. P1). Grounds of detention Ext. P3, were served on him on 6-2-1991. Upon that, he made Ext. P4 representation before the Cofeposa Advisory Board, through the Government of Kerala. The said Board considered the representation, but found the detention to be in order. This was followed by Ext. P5 order, under S.8 of the Cofeposa Act.

(2.) Learned counsel for petitioner submits that the detaining authority did not consider Ext. P4 representation independently, as it was bound to, and that it acted merely on the views of the Advisory Board. He argued further that a duty to consider the validity of detention inheres in the detaining authority, even without a separate representation before it, in that behalf. Reliance was placed on the decision of the Supreme Court in Gracy v. State of Kerala ( AIR 1991 SC 1090 ) to support the contention. The Court held:

(3.) Quality of consideration required of the detaining authority, is not a matter of opinion. The Apex Court has put the requirements in sharp focus. Ext. P5 order reveals that the detaining authority did not consider the matter independently. Ext. P5 states: