CHONARI SULEKHA Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ of Habeas Corpus is preferred by the wife of C. Hamsa who is detained under S.3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act') by detention order dated 4th October 2001.

(2.) Detenu was apprehended on 17th August 2001 at 10.30 p.m. while he was travelling in a bus bound to Guruvayoor. But was intercepted at Manjeswaram Sales Tax Check Post and the detenu was subjected to thorough examination in the presence of two independent witnesses. The search resulted in the recovery of 33 gold biscuits of foreign origin weighing 3,844.5 grams and valued at Rs. 16,91,580 and Indian currency of Rs. 18,030. Statement was recorded under S.108 of the Customs Act on 18th August 2001 which revealed that he had indulged in such activities at the instance of one Mohammed Ali and he had done the same in the past seven to eight times through the said Mohammed Ali. He was arrested on 18th August 2001 under the Customs Act and was produced before the Chief Judicial Magistrate, Kasaragode. He was remanded to judicial custody. His residence was searched which did not yield any fruitful results. He was found involved in another case of seizure of foreign currency worth Rs. 73,57,048/- by D.R.I. on 2nd September 1996 at Calicut Airport. Case was adjudicated and a penalty of Rs. 50,000 was imposed on him vide order dated 30th March 2000. He was found to be a habitual offender and had involved in those activities seven to eight times earlier. Though he moved bail application earlier it was dismissed. Subsequently he filed another application Crl. M.P. 8490 of 1991 and he was granted bail by the Additional Chief Judicial Magistrate, Economic Offence, Ernakulam on 29th September 2001. While he was on bail, detention order dated 4th October 2001 was passed, and he was arrested and detained in the Central Prison on 7th November 2001. Case of the detenu was referred to the COFEPOSA Advisory Board on 3rd December 2001. Advisory Board submitted report stating that there was sufficient cause for detention and for continued detention under the COFEPOSA Act. The order of detention was later confirmed, vide Government proceedings dated 19th January 2002.

(3.) Counsel appearing for the detenu raised three contentions. First and foremost contention raised was that detaining authority had failed to consider the bail application and the bail order while passing the detention order. Counsel submitted that the application for bail and the order granting bail though vital documents were not noticed, adverted to and considered by the detaining authority and consequently the order of detention is vitiated. Counsel also submitted that the detaining authority found him as a habitual offender but none of the materials on which such conclusion was reached by the detaining authority was made available to the detenu. Counsel submitted that detenu made application before the Advisory Board for assistance of legal practitioner or next friend but the same was not considered by the Advisory Board and consequently the subsequent order passed by the detaining authority was also vitiated.