MYMOONA Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ of Habeas Corpus has been preferred by the wife of the detenu who was detained under S.3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the Act). Ext. P1 order of detention dated 4.10.2001 and the subsequent order, Ext. P6, dated 21.1.2002 confirming the order of detention are under challenge in this writ petition.

(2.) Detenu by name P. Kunhimohammed was intercepted on 18.8.2001 by the Customs Authorities while he was travelling in a passenger train bound for Coimbatore. Detenu was searched by the Special Customs Preventive Unit, Kannur in the presence of two witnesses. During the search 31 gold biscuits of foreign origin weighing 3,611 grams and valued at Rs. 16,28,786/- along with Indian currency of Rs. 11,800/- were recovered from his person. Gold was found concealed around his waist. Statement under S.108 of the Customs Act was taken wherein detenu stated that he along with one Usman introduced by one Mohammed Ali went to Bombay and on 17.8.2001 he had contacted a person over telephone and later went to V.T. station and handed over the money to a person and got gold biscuits. Detenu was arrested by the Customs Authorities on 19.8.2001 he was produced before the Magistrate and the detenu was remanded to judicial custody till 29.8.2001. Later he was produced before the Additional Chief Judicial Magistrate (Economic Offence) Ernakulam on 29.8.2001. The order of detention dated 4.10.2001 was later passed and the detenu was apprehended by the police on 7.11.2001. Detenu made a representation on 6.12.2001 and requested for various documents. He was later produced before the COFEPOSA Advisory Board and Board recommended continued detention.

(3.) Counsel for the petitioner urged only two contentions. Counsel contended that the Advisory Board has committed an error in not granting his prayer for legal assistance by a next friend. According to counsel, this has vitiated the order of the Advisory Board. Counsel also submitted that the detaining authority has also committed a mistake in not referring to the bail application as well as the order passed by the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam granting bail.