AIYSHABI Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition has been filed by Smt. Aiyshabi, who is the wife of Sri C. K. Muhammed Mustafa. Sri Mustafa is presently detained in the Central Prison, Trivandrum by the respondents, invoking powers under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the 'COFEPOSA Act'), The relief prayed for is a writ in the nature of a Habeas Corpus directing the respondents to produce Sri Mohammed Mustafa before the Court and set him at liberty, and for quashing Ext. P 1 order dated 4-12-2003, which is an order issued by the Government of India, directing that Sri Mustafa is to be detained and kept in custody in the Central Prison, Trivandrum. Ext. P 7 dated 18-2-2005, passed by the Central Government in exercise of powers under S.8(f) of the COFEPOSA Act for directing detention for a period of one year from the date of detention i.e. from 29-11-2004 is also attacked.

(2.) The enforcement officers of the Government had on 3-2-2003 conducted a search of the premises of one C.K. Beerankutty and had recovered an amount of Rs. 72,70,000 from there. The statement given by Beerankutty implicated the petitioner's husband as also his brother Mr. Sherif, who is at Dubai. Search was conducted at the residence of Mustafa at Vengara, but there was no recovery effected. However, it seems that after a detailed investigation, the Central Government had come to a decision that Sri Mustafa had to be detained, invoking the provisions of S.3(1) of the COFEPOSA Act. Ext. P 1 is the order and the grounds on which such decision had been arrived at had been communicated to him along with Ext. P 1. This is separately marked as Ext. P 2. It is evident that it was not possible for the respondents to enforce the order and a publication had been made, as envisaged under S.7(1)(b) of the COFEPOSA Act requiring Sri Mustafa to surrender. A report had been filed before the Chief Judicial Magistrate, Malappuram on 7-4-2004. It is admitted that Sri Mustafa had surrendered before the Superintendent of Police, Malappuram on 29-11-2004. Thereafter, Ext. P 3 representation had been submitted by him before the COFEPOSA Advisory Board. As per his request, he had been permitted to be represented by a lawyer and a hearing had been arranged at Trivandrum on 22-1-2005, by notice dated 7-1-2005. Consequently, orders had been passed on 18-2-2005 holding that the detention order requires to be confirmed and Sri Mustafa is to be detained for a period of one year from the date of his initial detention, i.e. from 29-11-2004. This is under challenge.

(3.) We had opportunity to hear Sri George Jacob, counsel for the petitioner as also the Assistant Solicitor General Shri John Varghese on behalf of the Central Government. The Government Pleader was also heard.