K KADEEJA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the wife of P.A. Soopy, who is now under detention in the Central Prison, Trivandrum as a COFEPOSA detenu. In this Original Petition, she has prayed for the issue of:

(2.) It is alleged that about 10 a.m. on 20.11.1994, the Superintendent (Int.) Air Customs, Kanpur and party intercepted him at the exit gate of the Customs baggage Hall after customs clearance as he arrived from Sharjah by Indian Airlines Flight IC 990. The officers asked him whether he was carrying gold and he replied in the negative. But upon f suspicion they searched the small bag he carried and recovered from it a white glazed paper piece with the writing in Malayalam "give P.A. Soopy (20) twenty immediately". Allegedly on the reasonable belief that he carried contraband gold and the paper related to some smuggling activities he was involved in, the officers questioned him and he was stated to have told them that the piece of paper was given to him by M.C. Ahamedkutty, in whose room at Sharjah he stayed before he left and that he had instructed him to hand over the piece of paper to M.C. Beeran and collect Rs. 20,000/-. He also allegedly told the officers that Ahamedkutty had given a gas stove to be handed over to Beeran. The card board carton that contained the gas stove was subjected to examination in the presence of independent witnesses. The vessel stands were taken out of it and it was found to be rough and unusually heavy. They were of silver colour and one of the three were filed and instead of silver colour a golden colour appeared. Immediately a goldsmith was summoned and he examined the vessel stands and found them to have been made of gold of 24 ct. purity. The total weight allegedly came to 6537.3 gms. Thereupon the Superintendent seized all the vessel stands made of gold on the reasonable belief that they were smuggled to India without payment of duty and therefore, liable to be confiscated. His Passport, Boarding pass, Air ticket, customs clearance document, photocopy of the passport, photo, the paper piece and the remaining portions of the stove and the hand bag were also seized for further action. A statement was recorded from the detenu under S.108 of the Customs Act, where he stated inter alia that he had been working at Sharjah for the last 10 years, that Ahamedkutty of Sharjah gave him the gas stove to be handed over to his brother M.C. Beeran, that he also gave a Chit carrying the writing above referred to, that on earlier occasions too he had carried gas stoves for Beeran and Ahmedkutty and delivered as directed, that they met his travel expenses, that the present trip was arranged by Ahammedkutty, that he did not know gold was concealed in the gas stove, that actually he was cheated and maintained his innocence. He had also admitted that on 23.12.1992, he had brought 42' gold biscuits through Trivandurm Airport. Twice or thrice he was the captain of passengers who paid duty for Beeran for the goods brought. He used to send his savings and other remunerations he earned by Demand Draft and also by way of tube money through the said Beeran. On 31.7.1994, by another statement the detenu retracted from the statement he had given alleging that it was obtained by use of third degree methods. He was arrested on 20.11.1994 itself, produced before the Additional Chief Judicial Magistrate (E. O.) Ernakulam and was remanded to judicial custody. Subsequently, he was released on bail by order of this Court on Crl.M.C. No. 1947 of 1994 dt. 22.12.1994. The house of Beeran was searched by the Superintendent, Special Customs Preventive Unit and Party and three gas stoves (RIMA - Japan) as also gas cooking tables (Super general - made in Japan) were seized besides an amount of Rs. 1,87,700/-. Her house and that of Ahamedkutty were also searched, but nothing incriminating were recovered. On completion of the investigation the Sponsoring Authority forwarded the proposal for taking action against him under the COFEPOSA Act. Eventually, the first respondent passed Ext. P1 under S.3(1)(i) of the COFEPOSA Act on 28.3.1995 and he was arrested and detained on 4.4.1995. He was served with the copies of the detention order, grounds thereof and the documents relied on, on 6.4.1995. Aggrieved by the detention order, he sent Ext. P3 representation to the first respondent, who rejected it by Ext. P4. The first respondent also referred his case to the State Advisory Board under S.8B of the Act. By its report, dt. 5.6.1995 the Board opined that there was sufficient cause for his detention. The State Government thereupon passed Ext. P5 order of confirmation. The Central Government too rejected his representation by Ext. P6 order. In respect of this incident adjudication proceedings were initiated by the Deputy Collector, Cochin, who issued Ext. P7, to which Ext. P8 reply was sent. Subsequently by Ext. P9, the authority "confiscated the primary gold in the form of a quadrapod vessel stands of stove, weighing 6537.3 gms. to the Government of India under S.111(d), 111(1), 111(m) of Customs Act, 1962 absolutely to the Government of India" and "ordered confiscation of the gas stove, cardboard cartons and the 14 gas stoves used for concealment of gold to the Government under S.119 of the Customs Act, 1962 and the Indian Currency of Rs. 1,87,700/- under S.121 of the Customs Act to the Government of India". But then penalty was not imposed finding that the detenu was not aware that gold was concealed in the gas stove and "that the offence was not committed with his knowledge". It was submitted that Ext. P1 and the subsequent order for the continuance of the detention are illegal, must be quashed and that he should be directed to be released immediately. Though the incident had taken place on 20.11.1994 and all the relevant documents came into existence thereafter, the detaining authority passed the detention order only on 28.3.1995 after an unreasonable and inordinate delay. During the above period, the detenu was not involved in any other case. The incident had lost its relevance. The detaining authority had failed to apply its mind to the changed circumstances as also to the delay to pass the order. It was further submitted that even at the outset he had explained his position clearly and maintained ignorance about the concealment of gold in the gas stove. His statement as also the relevant circumstances were not properly considered or appreciated. The order of detention passed on the basis of a solitary and isolated act of smuggling was not justified. The detaining authority had failed to ensure that he was afforded an opportunity to make an effective and meaningful representation against his detention. He was not supplied with the copies of the documents relied on in passing the order inspite of his specific request. His representations were rejected without considering the relevant materials. To the Advisory Board and to the confirming authority vital and necessary documents were not made available. The confirmation order was passed without proper application of mind and in a mechanical manner. Extraneous and irrelevant materials had gone into the decision and it is therefore, vitiated. In the above circumstance, the petitioner has sought the reliefs as aforesaid.

(3.) The first respondent in the detailed counter affidavit has denied the allegations and maintained that the order of detention is legal and proper and does not call for interference. On behalf of the second respondent too counter affidavit has been filed, where it is stated that the representation of the detenu was rejected in the light of materials made available, that were properly considered. (We shall be referring to the contentions in the Counter affidavit later in the course of the judgment).