DELIA TONY Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner Delia Tony is the wife of Tony John Koothoor who is detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act) in the Central Jail, Thiruvananthapuram. Petitioner prays for a Writ of Habeas Corpus directing the respondents, namely, Union of India, State of Kerala, the Commissioner of Customs and Central Excise, Central Revenue Buildings, I.S. Press Road, Ernakulam and the Assistant Commissioner, Air Customs, Thiruvananthapuram to produce the body of Sri. Tony John Koothoor and release him from custody or detention forthwith. She also prays for quashing Ext. P12 order passed by the Government of Kerala under S.8(f) of the COFEPOSA Act and Ext. P13 order of the Government of India rejecting the representation dated 3.8.2001 of Sri. Tony John Koothoor against his detention.

(2.) On 6.1.1993 the Officers of the Air Intelligence Unit, Air Customs, Thiruvananthapuram Airport visited the export baggage hall of Thiruvananthapuram Airport alongwith two independent witnesses on the reasonable belief that foreign currency and related documents were being illicitly exported to Dubai by Air India Flight No. AI 975. During the course of their check they intercepted a passenger by name Nalakathu Kunhu Mohammed who was identifying his baggage at the place where it was being loaded into the Aircraft container after completing emigration and customs formalities. On verification of documents it was confirmed that the passenger was bound to Dubai. The rexin bag identified by the passenger was opened with the key handed over by him and it was examined in the presence of the passenger and witnesses. On examining the bag the rexin sheet was seen stitched on the top side of the bag and on removing the said sheet a secret cavity made of hard board sheet was found. On removing the said hard board sheet foreign currency of different countries stacked in bundles were noticed. On a detailed examination of the said foreign currency it was found that foreign currency worth Rs. 37,72,170/- were kept in the secret cavity of the bag. On enquiry the passenger informed that he had valid document for exporting those foreign currencies and that the said foreign currencies were handed over to him at the Airport by a person by name Tony for delivering them to one Basheer at Dubai. The passenger also stated that he had stayed with Tony during that night and that Tony was a travel agent dealing in flight tickets at Thrissur and Thiruvananthapuram and that he knew him for the last two months. On the reasonable belief that the foreign currencies were attempted to be smuggled from India to Dubai in contravention of the provisions of the Customs Act and Foreign Exchange Regulation Act and were liable to be confiscated to the Government; the Superintendent, Air Customs, Thiruvananthapuram seized the foreign currencies under a mahazar. The statement of Sri. Nalakathu Kunhu Mohammed also was recorded immediately. As per the statement given by Sri. Kunhu Mohammed he had contacted Tony for getting a ticket to Dubai and Sri. Tony agreed to arrange a ticket to Dubai and directed to meet him at the Airport. Sri. Tony took him to his residence on 5.1.1993 and told him to carry some goods meant for one Basheer at Dubai. Kunhu Mohammed agreed to do so. Tony handed over the rexin bag to Kunhu Mohammed and told that he would be sent to Dubai by flight AI 975 on 6.1.1993. Kunhu Mohammed stayed with Tony in that night and returned to the Airport on 6.1.1993 along with Tony. After recording his statement, Kunhu Mohammed accompanied the Customs officers to the visitors gallery and identified Sri. Tony who was waiting there. Tony was taken to the Customs office at the Airport and his statement was also recorded. In his statement Tony admitted that he came to the Airport along with Kunhu Mohammed for sending him to Dubai by Air India flight AI 975 and that the bag containing foreign currency recovered from Sri. Kunhu Mohammed was given by him. As per the statement given by Tony he is a agent. He has acquaintance with a travel agent by name Mohammed Basheer @ Basheer at Dubai. The said Basheer used to send gold to India through different passengers and requested Tony to sell the gold and purchase foreign currencies from Gulf passengers with the money so received from the sale of gold and to send such foreign currencies to Basheer through somebody and Basheer agreed to give a portion of the profit to Tony also. Sri. Tony also stated that he had concealed the foreign currencies in the bottom portion of the rexin bag and had given the bag Kunhu Mohammed. In the light of the statements given by Sri. Nalakathu Kunhu Mohammed and Sri. Tony John Koothoor, they were arrested on 6.1.1993 and were produced before the Additional Chief Judicial Magistrate on 7.1.1993 who remanded them to jail. They were enlarged on bail on 19.1.1993. The Public Prosecutor endorsed that he had no objection in granting bail on condition that the accused should appear before the Investigating Officer on every Monday and Friday till the departmental adjudication was over. Thereafter Government of Kerala issued an order dated 26.5.1993 under S.3(1)(i) of the COFEPOSA Act against Sri. Nalakathu Kunhu Mohammed and another order dated 26.5.1993 under S.3(1)(ii) of the COFEPOSA Act against Sri. Tony John Koothoor.

(3.) On the basis of the detention order passed under S.3(1)(i) of the COFEPOSA Act Sri. Nalakathu Kunhu Mohammed was arrested on 18.6.1993 and was detained in the Central Prison, Thiruvananthapuram during the period of detention. In the case of Sri. Tony John Koothoor, the detention order was executed only on 20.7.2001 and he is detained in the Central Prison, Thiruvananthapuram. Sri. Tony sent a representation dated 3.8.2001 to the Central Government against his detention. The said representation was rejected by the Central Government through Ext. P13 memorandum dated 17.8.2001. His representation dated 3.8.2001 addressed to the Government of Kerala also was rejected through Ext. P11 dated 10.8.2001. Sri. Tony was produced before the Advisory Board under the COFEPOSA Act on 16.8.2001 . After hearing the detenu in person and considering his representations, the Advisory Board in its report dated 22.9.2001 opined that there is sufficient cause for the continued detention of the detenu under S.3(1)(ii) of the COFEPOSA Act. Subsequently Government of Kerala issued Ext. P12 order dated 27.9.2001 confirming the detention under S.8(f) of the COFEPOSA Act and ordering under S.10 of the COFEPOSA Act that the detention shall continue for a period of one year from 20.7.2001. Aggrieved by the above actions and orders of the respondents the wife of the detenu has filed this Original Petition.