MODIYIL VARGHESE THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) This Original Petition has been filed by the Power of Attorney holder of petitioner who is now employed at Abudhabi. Petitioner Varghese Thomas has been working in Abudhabi since 1977. He is a native of Chengannur in Alleppey District. He came to Trivandrum from Abudhabi on 18th May 1985 and when he landed at Trivandrum Air Port, the Air Port Customs seized 730 gms. of gold as undeclared goods. Petitioner was arrested and his statement was recorded under S.108 of the Customs Act. Petitioner was later produced before the Judicial First Class Magistrate, Trivandrum. He was granted interim bail by the Magistrate. On 1st June 1985, petitioner filed application for release of his passport for leaving India to join his work at Abudhabi and that was allowed. On 1st September 1985, petitioner came to India to attend the marriage of his sister and according to the petitioner he was in his native village for a period of one month from 1st September 1985. Petitioner was not informed of any pending proceedings against him. According to the petitioner he was moving about in his native place as a free citizen. On 20th October, 1985 petitioner received a show cause notice and he engaged one Advocate to appear and plead for him before the Deputy Collector, Customs. A personal hearing was granted to petitioner's Advocate on 22nd February 1986. A penalty of Rs. 10,000 was imposed under S.112 of the Customs Act. Petitioner's Advocate paid the amount. Petitioner would contend that he had contact with the office of the 4th respondent and he made all arrangements at home to. receive any registered communication or any other information. According to the petitioner, in the month of December 1985 he left Abudabhi and reached Bombay on 14th December 1985. Then he made arrangements to submit reply to the show cause notice. Petitioner left Cochin for Abudabhi on 21st December 1985. It is alleged by the petitioner that the respondents have done nothing to get at the petitioner Recently, the petitioner was informed that there was a publication in the Kerala Gazette regarding the order passed by the 3rd respondent. According to the petitioner, the publication contained all sorts of incorrect information. Petitioner is not aware of the detention order mentioned in Ext. P-9 publication. As Ext. P-9 publication was made one year and 2 months after the incident, the detention order is illegal. Therefore, the petitioner prays for a writ of certiorari to quash the detention order passed against him.

(2.) The counsel for the petitioner elaborately argued and contended for the position that the order passed by the respondents is illegal and is liable to be set aside. According to the petitioner's counsel the detention order under Conservation of Foreign Exchange and Prevention of Smuggling Act (COFEPOSA) could be challenged without the petitioner surrendering before the detaining authority. The counsel for the petitioner further argued that an individual has absolute right to liberty and therefore the burden is on the State to satisfy that the deprivation of the liberty is necessary in the interests of the general public, security of the State, Public Order, etc. The counsel for the petitioner contended that the extent of right to life and liberty under S.21 of the Constitution has been expended by various decisions of the Supreme Court and reference was made to Francis Coralie Mullin v. Administrator, Union Territory of Delhi 1981 (1) SCC 608 , Maneka Gandhi v. Union of India 1978 (1) SCC 248 , Rustom Cavasjee Cooper v. Union of India AIR 1970 SC 564 (Bank Nationalisation Case). Based on the above decisions, it was contended that the fundamental rights guaranteed by the Constitution particularly under Art.14, 19 and 21 conferred on the person likely to be affected by preventive detention order has got right to approach the court at any time and the artificial distinction between the pre-decisional and post decisional challenge is inconsistent with and alien to the wide powers conferred under Art.226 of the Constitution.

(3.) The counsel for the petitioner contended that the Supreme Court in various decisions held that if there was a delay between the preventive detention order and the incident referred to therein the order is liable to be quashed. It is true that the Supreme Court in several decisions held that when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the detaining authority leading to legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner [See T. A. Abdul Rahman v. State of Kerala AIR 1990 SC 225 . Similar observations were made in various decisions of the Supreme Court also. See yogendra Murari v. State of U.P. AIR 1988 SC 1835 ).