SEETHAMMA Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) The petitioner is the mother of K. Shyama Sunder, Nagarkotta Read, Kerakcde, Kasaragod District. Shyama Sander was detained under Ext. P1 order issued by the Government under S.3(1)(iv) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (the "COFEPOSA Act"). The petitioner prays for a writ of habeas corpus to produce her son; for a writ of certiorari to quash Ext. P1; and, for an order directing the release of her son.

(2.) Shyama Sunder (the "detenu") was detained on 28-8-1987 as per Ext. P1 dated 20-8-1987. Within 5 days of the detention, the grounds of detention as well as 61 documents in English accompanied by their Malayalam translations were served on him. He was produced before the COFEPOSA Board on 20-11-1987 and the Board reported that in their opinion there was sufficient reason for his continued detection. The detenu has not sent a representation against the order of detection. It is stated by the petitioner that the detenu could not send any representation at all as he could not read or write any language other than Kannada and that he was educated only upto the third standard with Kannada as the medium. It is further stated that the incident in respect of which Ext. P1 was issued is alleged to have occurred during October - November, 1986. But Ext. P1 was issued only about nine months later. The detenu had been arrested in connection with a criminal case in respect of the very same incident as early as 13-12-1986. That case is still pending and no charges have so far been framed against the detenu. He was released on bail by the criminal court at the end of December, 1986, subject to the condition that he would report to the customs authorities at Kasaragod everyday and that he would reside within the Kasaragod municipal town. This order was subsequently varied without demur from the customs authorities so as to delete the condition that he should report to the customs authorities everyday.

(3.) Counsel for the petitioner, Shri. J. Jose, in bis extremely well prepared arguments, submits that there is no allegation that since the occurrence of the alleged incident in October-November, 1986 and during the period of enlargement on bail the detenu had at any time continued his connections with the alleged offenders or had in any manner continued the activities alleged against him. There is thus a long and unexplained delay of nine months between the alleged incident and the order of detention with no intervening incident to condone the delay. Secondly, counsel submits that, as clearly admitted by the State Government in their counter affidavit dated 30-11-1987, sworn by the Additional Secretary to the Government, the detaining authority could not apply their mind to the fact that the detenu bad been enlarged on bail by the criminal court as the concerned files had not been placed before that authority. The failure of the authority to have due regard to the proceedings in the criminal court and the order of bail shows that they have not only acted in a leisurely and casual manner, but have also failed to apply their mind to the question whether the relevant circumstances warranted interference with the liberty of a subject by recourse to the extraordinary power dispensing with the trial required by the normal law of the land. Thirdly, counsel submits that it is not denied that the detenu knew no language other than a smattering of Kannada and no translation of the documents, including the grounds of detention, had been given to him, and no ere had explained to him the contents of those documents. The detenu was thus deprived of his constitutional right to make an effective representation at the earliest opportunity against the order of detention. For all these reasons, counsel points out, the principles enunciated by the Supreme Court in a number of decisions have been flouted by the careless and indifferent manner in which the authority exercised the power under the COFEPOSA Act.