KRISHNA VENI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the wife of Shri V. Jayakumar who has been detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the TTCOFEPOSA Act). She prays for a writ of habeas corpus and other reliefs. Her husband (hereinafter referred to as the detenu) was arrested on 9-9-1985 under the provisions of the Customs Act, 1962. He was produced before the Additional Chief Judicial Magistrate for Economic Offences on 10-9-1985. The learned Magistrate released him on bail subject to certain conditions by his order dated 17-9-1985. Thereafter by the impugned order Ext. P 1 dated 4-11- 1985 made by the Government of Kerala under section 3(1) of the COFEPOSA Act, he was arrested on 21-11-85 and has since been detained in Central Prison, Trivandrum. Ext. P.1 reads: GOVERNMENT OF KBRALA HOME (SS.A) DEPARTMENT ORDER No. 68576/SSAI/ Dated, Trivandrum, 85/Home 4-11-1985. Whereas the Government of Kerala is satisfied with respect to the person Known as Shri V. Jayakumar, Sb. Shri K. Velappan Pillai (1) Saroj, Thevally, Quilon, (2) Managing Partner, M/s. Jaya Cashew Corporation, Quilon (3) Flat No.8. Ponnamma Amma Bhavan, Beach Road, Quilon (4) M.B.M.I.G. Flats, Nanclanam, Madras, that with a view to preventing him from smuggling goods, it is necessary to make an order directing that the said person shall be detained. Now, therefore, in exercise of powers conferred by section 3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), the Government of Kerala direct that the said Shri V. Jayakumar be detained and kept in custody in the Central Prison. Trivandrum. By order of the Governor, Sd!- N. Kaleeswaran Commissioner & Secretary (Home)T On 22-11-1985-i.e. a day after the arrest the grounds of detention, Ext. P7, together with 25 documents were supplied to the detenu. The list of these documents, attached to Ext. P7, describes them as the documents based on which the grounds for detention are prepared. Thereupon the detenu, by Ext. P8 letter dated 26-11-1985 addressed to the second respondent, requested him to furnish him with copies of 26 documents which according to him, were referred to in Ext. P7, but not supplied to him along with it. However, the detenu filed before the second respondent Ext. P9 dated 7-12-1985, which is styled as representation filed in accordance with the requirement and as enjoined by Article 22(5) of the Constitution. This is a detailed representation fully stating his case in answer to Ext. P7. It contains no complaint that the documents asked for in Ext. P8 have not been furnished to the detenu or that the representation could not be fully and effectively made for want of them. The Government rejected the request contained in Ext. P8 by Ext, P10 dated 18- 12-1985 stating as follows: With reference to your petition cited I am to inform that the grounds for detention were prepared, relying on the 25 items of documents served on won along with Government letter No. 68575/SSAI/85/Home dated 4.11-1985. Therefore your request for supply of the documents which were not relied on while passing the order of detention cannot be acceded to. Finally the second respondent sent Ext. P14 dated 10-1-1986 to the detenu answering his representation (Ext. P9 dated 7-12-1985) in the following words: With reference to your representation cited, I am to inform that the said representation has been carefully considered by Government, but it is regretted that your request for release has been rejected. The order to detain you has been issued after considering all the necessary materials of the case and after fully satisfying that it is necessary to detain you with a view to prevent you from indulging in prejudicial activities

(2.) The main contentions of the petitioner are: The detention of the detenu on the basis of Ext. P1 is void and invalid for several reasons. Ext. P1 is an order of the first respondent, the Government of Kerala, but the counter affidavits filed on behalf of respondents 1 and 2 refer to the second respondent as the detaining authority. The averments in the counter affidavits show that Ext. P1 was made on the satisfaction of the sponsoring authority, namely, the Collector of Customs and not on the satisfaction of the Government. The detenu has not been afforded an adequate opportunity of making effective representation against the order of detention as warranted under Article 22(5) of the Constitution of India in so far as about 26 documents listed and asked for by him in Ext. P8 have not been given to him, even though these documents were referred to in Ext. P7, grounds. No satisfactory explanation has been given for not complying with the request for the documents apart from stating that no reliance had been placed upon them by the authority in ordering the detention. Furthermore, Ext. P9 representation made by the detenu with reference to the grounds of detention supplied to him along with. 25 documents remained unanswered, for about 36 days and no reasonable explanation for the delay has been furnished by the respondents. Ext. P1 was passed on the basis of the recommendation of the Screening CommitteeT consisting of the Law Secretary to the Government of Kerala, the Director General of Police and the Collector of Customs. This shows that Ext. P1 was influenced by an extraneous authority. So run the averments and the arguments in support of the petition.

(3.) In the two counter affidavits filed on behalf of respondents 1 and 2 the allegations contained in the petition have been controverter. It is stated that Ext. P1 was made on a proper consideration of the material facts supplied by the Collector of Customs and on proper inference having been drawn therefrom and strictly in accordance with the satisfaction of the detaining authority. The detenu was given without any delay all the grounds of detention together with the 25 documents relied upon by the detaining authority. No extraneous authority had influenced the decision of the detaining authority. The detenu was afforded an effective opportunity for making his representation in accordance with the constitutional guarantee. His request for another set of 26 documents was not complied with for the reason that they were neither relevant to the grounds of detention nor relied on by the detaining authority. The allegation regarding delay is unfounded for there is proper explanation for the time taken in answering Ext. P9.