SHAREEFA UMMER Vs. JOINT SECRETARY

JUDGEMENT

(1.) This Original Petition is filed by Shareefa Ummer, wife of Ummer Ibrahim for a writ of Habeas Corpus to produce the body of the husband of the petitioner (hereinafter called the detenu') who is detained in the Central Prison, Trivandrum, as per the order of detention under S.3(1) of the Conservation of Foreign Exchange of Prevention of Smuggling Activities Act, 1974 (hereinafter called 'the COFEPOSA Act'). According to the petitioner, both the petitioner and the detenu have got their permanent residence in Calicut District in the State of Kerala. The order of detention dated 17th May 1993 was passed on the basis of the following allegations: On 20.11.1992 the Enforcement Officers, Bombay intercepted the detenu at Bombay Sahar International Airport when the detenu was about to leave for Dubai and seized from him 1,17,000 Saudi Riyals, 74,500 UAE Dirhams and 12,500 Qatar Riyals from the slippers worn by the detenu under the provisions of the Foreign Exchange Regulation Act.

(2.) The detenu gave a statement under S.40 of the Foreign Exchange Regulation Act stating among other things that his brother Mohammed introduced him to one Babu Bhai who promised to give Rs. 5,000/- for each trip if he smuggles foreign currencies out of India. The detenu was arrested on 21.11.1992 and he was rendered to judicial custody. Subsequently, the detenu was released on bail by the Chief Metropolitan Magistrate, Bombay on 4.12.1992. On the basis of the above allegations, the first respondent, viz., Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi passed detention order under S.3(1) of the COFEPOSA Act, on 17.5.1993. The detention order stated that Ummer Ibrahim, the detenu, be detained and kept in custody in the Central Prison, Trivandrum. Even though the detention order was passed on 17.5.1993, the detenu was arrested and detained in the Central Prison, Trivandrum only on 4.6.1996, three years after the order of detention was passed. The grounds of detention and documents were also served on the detenu. The case of the detenu was referred to the Central Advisory Board. The detenu filed representations to respondents 1 and 2. Both the representations were rejected. After obtaining the opinion of the Central Advisory Board, the Detaining Authority confirmed the order of detention by issuing Ext. P10 dated 20.8.1996. By this order, the detention of Ummer Ibrahim, the detenu, was confirmed for a period of one year from the date of actual detention, viz. from 4.6.1996.

(3.) Even though many grounds are urged in the Original Petition challenging the detention, the main ground urged is the delay in executing the order of detention. According to the petitioner, the detention order was passed on 17.5.1993 but the detenu was arrested only on 4.6.1996. Petitioners submits that during this period, the detenu has not absconded, but he was very much available in the places known to the authorities. The detenu was granted bail and he was allowed to remain at large complying with the conditions in the bail order. According to the petitioner, the authorities did not take any proper steps for executing the order of detention under S.7 of the COFEPOSA Act. The bail order granted was not even attempted to be cancelled. The failure of the authorities to take prompt action in executing the detention order shows that the apprehension of the Detaining Authority is not real or genuine, but it is only a colourable exercise of power. After a lapse of three years, the detention will become punitive.