AYSHA NAZREEM Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) This writ of habeas corpus is preferred by the wife of Abdus Salam Abu, S/o. Abdu Rahiman, who is under detention pursuant to detention order No 69324 / SSA / 4/0l / Home dated 27-12-2001 issued by the first respondent. Detenu was detained by the first respondent in exercise of the powers conferred by S.3 (1) (i) and 3(1) (ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA ACT).

(2.) Detenu was apprehended on 20-11-2001. He was a passenger of 1C 598 of Indian Airlines coming from Sharja to Calicut. He was found to carry 90 mobile phones and four movie cameras. One hundred and fifty numbers of gold coins were also found out. A statement was recorded on the same day. He was also arrested at 10.00 p.m. and was produced before the Chief Judicial Magistrate,' Manjeri at 11.00 a.m. on 21-11-2001 and was remanded to judicial custody till 4-12-2001. He moved bail application, Crl. M.P. No. 11415 of 2001 in O.S. No. 18 of 2001 before the Additional Chief Judicial Magistrate (Economic Offence), Ernakulam. Bail was granted to him on 11-12-2001. While he was on bail, order of detention was passed on 27-12-2001 detaining him in Central Prison, Thiruvananthapuram.

(3.) The only contention raised by the counsel for the petitioner is that while the detenu was detained under the COFEPOSA Act he was on bail granted by a competent criminal court. Counsel submitted that application for bail and the order granting bail are vital documents but were not noticed, adverted to and considered by the detaining authority and consequently the order of detention is vitiated. Counsel made reference to the decisions of the apex court in M. Ahamedkutty v. Union of India ( 1990 (2) SCC 1 ) Abdul Sathar Ibrahim Sait v. Union of India (1992 (1) SCC) and the decisions of this court in Ashraf v. State of Kerala (2001 . (1) KLJ 684) and Hajara v. State of Kerala ( 1997 (1) KLT 597 ). Reference was also made to the decision of the apex court in Chowdarapu Raghunandan v. State of Tamil Nadu (2002 SCC (Crl.) 714) and the decision of this court in O.P. No. 7571 of 2002.