LIZA CHARLY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner herein is the wife of Mr.K.T.Charly,who currently is detained in the Central Prison.Thiruvananthapuram as a COFEPOSA detenu.The writ petition inter alia points out that the detention as above is illegal and consequently,the petitioner prays for a writ of Habeas Corpus or any other appropriate writ directing the production of the detenu for releasing him without delay.Further,a declaration is prayed for whereby,the detention is to be held as illegal,unsustainable and vitiated by illegalities and irregularities.

(2.) EXT .P1 is the order passed by the notified authority,whereby in exercise of powers conferred by Sections 3(1 )(i ),3(1 )(ii)and 3(1 )(iii)of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974(for short,COFEPOSA Act ),the Government had ordered detention of Sri.K.T.Charly in the Central Prison,Thiruvananthapuram.It is submitted that the order as well as Exts.P11 and P14 orders issued by the Government,disposing of the representations submitted by him rejecting his request made for release,are liable to be set aside.

(3.) IN the matter of preventive detention,as authorized under the COFEPOSA Act,the Courts had had opportunity to examine not only the legality and sustainability of the statutes,but also the procedural requirements to be followed.It may not be necessary for us to attempt a full study at this juncture.In the nature of the proceedings,we are also not expected to go into the merits of the allegations.In view of the limited scope of jurisdiction,of course it was natural that the petitioner had highlighted even the minute circumstances which could have been in his favour for getting the detention declared as illegal.But,we have to bear in his favour for getting the detention declared as illegal.But,we have to bear in mind that the attempt of the court never has been to puncture holes and to set the proceedings at naught.The sweat spilled by the executive authority for investigation;the countless hours spent for collecting materials;the powerful undercurrents to be countered;deliberations,and the decision making process and the totality of efforts taken to come to a conclusion necessarily have to be taken cognizance of before unsetting a decision on technicalities.In a given case,if there is mishandling by the executing authority to secure detention,the edifice need not be pulled down for that reason alone,as it may be difficult to rule out,in the present scenario,as to whether the lethargy was unavoidable or one introduced by design.The effect of a detention on an individual is drastic,and even amounts,to denial of fundamental rights guaranteed under the Constitution of India.But simultaneously we have to bear in mind that the Apex Court had time and again required a caution o be maintained,since the economic offences including smuggling activities corroded the health or the economy of the State.It may be true to say that at times the stringent measures taken are to be appreciated in the general background of public well being.What is required is a pragmatic approach divorced of hyper technical contentions,as might be raised in individual cases.We feel,we may approach the question conscious of the above factors in mind.