MARY OUSEPH Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONERS in both these cases have a common cause, i.e., not to detain one P.O. Thomas and not execute an order of detention No. 38567/SSAI/89/Home-dated 4-7-89 issued by the Commissioner & Secretary to Government, Government of Kerala Home (SSA) Department on his arrival in India.

(2.) THE detaining authority in exercise of its powers conferred under S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) ordered that the detenu P.O. Thomas be detained and kept in custody in the Central Prison, Trivandrum. The detenu, the son of first petitioner in WP (Crl.) 241 of 2006 was arrested on 2-3-1989 by the officers of the Air Intelligence Unit, Air Customs Unit, Trivandrum while attempting to smuggle primary gold and gold ornaments weighing 1631 gms. valued at Rs. 4,89300/- Gold was concealed in an electronic musical instrument and video cassette player. Detenu had admitted before the authorities under S.108 of the Customs Act, 1962 that he had agreed to smuggle the gold as per the direction given by one R. Singh for a consideration of Rs. 25,000/-. Later he was produced before the Additional Chief Judicial Magistrate's Court (Economic Offences) and was remanded to judicial custody. He was enlarged on bail on 8-3-1989. Later he approached this court and filed Crl. M. C. No. 386 of 1989 and sought for a direction to release the passport and the return air ticket of the petitioner. A Division Bench of this Court passed the following order on 28-4-1989. "There will be an interim order to release the passport and air ticket to petitioner on the petitioner executing a bond for Rs. 50,000/- (Fifty Thousand) with two solvent sureties in like sums to the satisfaction of the Collector of Customs, Cochin. Petitioner shall return to India within five weeks of the date of releasing the passport, and report before the Collector of Central Excise and Customs, Cochin. Criminal M. C. will be posted for hearing on 5-6-1989. The passport will be released within two days of production of the bonds. Collector of Customs in obedience to the order of this court released the passport on 16-5-89 and also the Air Ticket P.O. Thomas men left India but never returned to India and now various explanations are being offered for not complying with the directions issued by the Division Bench.

(3.) WE have already pointed out that the detention order was issued on 4-7-89 but could not be served on him since the detenu was absconding and had failed to return to India in spite of the direction given by the Division Bench. Now the detenu wants to come to India after a long gap of 17 years. In order to facilitate that WP (C) 24603 of 2005 was preferred on 17-8-2005 through his brother, power of attorney holder, seeking a writ of certiorari to quash the detention order and also for other consequential reliefs. Later WP (Crl.) 241 of 2006 was preferred by his mother and brother in law on his behalf challenging the detention order dated 4-7-89.