B. SUBAIDA Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an application for the issue of a writ of habeas corpus. The petitioner is the wife of one Moidu, S/o. Mammu Haji, who has been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (The 'COFEPOSA'). The detenu landed at Trivandrum International Airport from Abu Dubai by Air India flight on 23.4.1991. He was having two baggages, one is a suit case and the other is a zipper bag. On a detailed examination of one of the baggages, 455 grams of gold in strip form were recovered and the detenu was taken into custody. The baggage and other belongings were locked and entrusted with the Superintendent of Customs (Intelligence) for safe custody. On 23-4-1991 he gave a confessional statement before the customs authorities. Later he was produced before the Addl. Chief Judicial Magistrate for Economic Offences, Ernakulam, pursuant to a bail application filed by him. In the bail application dated 24-4-1991, he retracted from the confession given before the customs authorities. He was subsequently released on bail subject to certain conditions On 155-1991 he was brought before the customs authorities for inspection of the remaining baggage. On inspection of the remaining baggage 938 gms. of gold was recovered in laminated form. On that day, toe detenu gave a further confessional statement before the customs authorities. However, on the very next day, that is on 16-5-1991, he retracted from the said confession. Thereafter on 15-11-1991 Ext. P1 order of detention was issued by the State Government under the COFEPOSA and the detenu was arrested on 13-6-1992. The grounds of detention were served on him on 14-6-1992. The matter was referred to the Advisory Board which have its report on 15-7-1992 and the detention was confirmed on 2-27-1992. Thereafter the petitioner gave a representation, Ext. P4 which was dated 29-9-1992 and which was corrected as 7-10-92 to the State Government, stating that he did cot receive copies of various documents. These copies were given subsequently. The representation of the petitioner for release was rejected on 19-10-1992 by the State Government. The above said detention orders have been challenged by the petitioner on various grounds.

(2.) THE petitioner raised three grounds, namely, there was delay in the service of order of detention, that Ext. P1 is vitiated by non application of mind to the two reactions and non furnishing of copy of the second retraction dated 16-5-1991 and that there is no provision for referring the matter to the screening committee and that there was delay before the screening committee. However, at the time of arguments, learned Senior counsel confined his case to the one point, namely, that the detaining authority did not apply its mind to the two retractions, and the second retractions dated 16-5-1991 was not communicated to the petitioner.

(3.) THEREFORE , it emerges that the detenu gave one confessional statement on 23-4-1991 before the customs authorities, but retracted therefrom in the bail application filed before Addl. CJM, Ernakulam on 24-4-1991. The confession and retraction related to the recovery of 455 gms. of gold from his baggage on the date of his arrival on 23-4-1991. The detenu gave a second confessional statement on 15-5-1991 before the customs authorities, when the remaining baggage was searched and 938 gms. of gold in laminated form wore recovered. However, he retracted from the said confessional statement again on 16-5-1991. It was not in dispute that the detenu was furnished with a copy of first retraction contained in the bail application filed by him on 24-4-1991 before the Addl. CJM, Ernakulam, and also a copy of the order of the said judicial authority granting bail. But a copy of the second redaction statement dated 16-5-1991 has not been furnished to the detenu, nor is there any material to show that the same has been placed before the detaining authority.