ALIMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ of habeas corpus is preferred by the wife of the detenu under Article 226 of the Constitution of India to release the detenu by name C.K.Beerankutty from custody as well as seeking a writ of certiorari to quash Ext.P1 order of detention dated 3 -12 -2003 and also the order of confirmation passed by the Government of India under section 8(f)of the COFEPOSA Act.

(2.) ENFORCEMENT Directorate,Chennai on getting secret information conducted a search at the residential premises of the detenu on 3 -2 -2003 at No.19/23,Dinesh Niwas,Dharachand Nagar 3 rd Street,Venkatesh Nagar,Chennai "96 and the detenu,one Kunhi Mohamed K .,Mohamed sheriff,Ashraf A.P .,Safeer P.and Sameer Babu K.were present at the time of search,Search resulted in the seizure of search.Search resulted in the seizure of Indian currency of Rs.72,70,000/ - and documents consisting of note book,pocket note and bunch of loose sheets consisting of accounts,telephone bill and summary account of M/s.Airtel etc .,and currency counting machine of M/s.Albert and Sons(Electronic)Model ANCM -02 bearing No.01351 "12/02.During the course of search on 3 -2 -03 the detenu's statement was recorded on oath.Detenu had stated that the seized amount of Rs.72,70,000/ - was received by him on 3 -2 -03 from one Arjun at Chennal as per the instructions of one Sherif alias Mash residing at Dubai.Further he had also stated that had this amount not been seized by the officers it would have handed over to one C.K.Musthafa as instructed by Sherif of Dubai.Further he had also stated that Musthafa was having a jewellery shop at Perinthalmanna,Kerala.He had also made another statement to the Assistant Director of Enforcement Directorate on 4 -2 -2003 that whatever he had stated in his statement dt.3 -2 -2003 was correct.

(3.) ENFORCEMENT Directorate had also issued show cause notice to all the parties to show cause why adjudication proceedings as contemplated under section 13(1)of to show cause why adjudication proceedings as contemplated under section 13(1)of FEMA,1999 should not be initiated.Further the entire materials collected were forwarded to the detaining authority. Detaining authority noticed that the detenu is indulging in activities of receiving the amounts locally and making payments to several persons in India as per the instructions of a person resident outside India and that he has contravened the provisions of section 3 of the Foreign Exchange Management Act,1999 Considering the nature and gravity of the offence the detaining authority was satisfied that unless the detenu is detained,he is likely to engage in activities which would prejudice the interests of the country and therefore it is necessary to detain him under the COFEPOSA Act,1974 with a view to prevent him in future from acting in any manner prejudicial to the augmentation of country's foreign exchange resources.While passing the detention order the detaining authority had considered and relied upon various documents and copy of the grounds of detention and the copies of relied upon documents and copy of the grounds of detention and the copies of relied upon documents translated into Malayalam were supplied to the detenu.Detenu was asked to submit detailed representation in the grounds of detention order by the detaining authority as well as on the basis of the documents supplied to him.List of documents was also supplied to the detenu.Detention order dated 3 -12 -2003 could not be served on the detenu.Consequently action under section 7(1 )(b)and 7(1 )(a)was initiated against him on 17 -2 -2004 and 7 -4 -2004 respectively.Detention order along with a covering letter dated 9 -1 -04 was forwarded to the Superintendent of Police,Malappuram for execution.The letter was received in the Office of the Superintendent of Police on 13 -1 -04 and the same was in turn forward to the Office of the Circle Inspector of Police,Manjeri for urgent execution.Detailed enquiry was made,but the detenu could not be traced.Earlier the Central Government as per notification F.No.673/29/23 -CUS.VIII dated 17 -2 -04 ordered the detenu to appear before the Commissioner of Police,Malappuram within seven days of the publication of the said order in the official gazette.Office of the Superintendent of Police,Malappuram sent registered notice dated 29 -3 -04 directing the detenu to appear in person within ten days of the receipt of the said notice.Detenu did not respond.The effort taken by the police to find out the detenu is elaborately stated in the counter affidavit filed by the Circle Inspector of Police,Manjeri.