MAVUNGAL PATHUMMA Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is the wife of one Mr. M. Ahammedkutty (hereinafter referred to as "the detenu") detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act"). The grounds stated in the detention order is that on 20th November 1994 one P. A. Soopy arrived at Calicut Airport from Sharjah. After he has crossed the green channel for customs clearance, on examination, a white glazed paper was recovered from him wherein it was written in Malayalam "Give P.A. Soopy twenty immediately". The Customs officials suspected smuggling activities and examined his registered baggage. On questioning, it was stated that the paper was given to him by the detenu in whose room the passenger stayed at Sharjah. Before he started journey the detenu had entrusted him a gas stove for handing over to his brother Beeran and on handing over the same and the slip to Beeran, he will be given Rs. 20,000. The registered baggage contained one gas cooking table "Super General SG 003 Gas cooking table, Made in Japan". On examination, it was found that three stands of the stove were made of 24 Ct. pure gold which was coated with silver. Value of the 24 Ct. pure gold with weight of 6537-3 gms. was assessed by the Customs authorities as Rs. 31,11,755. A statement was recorded from Shri Soopy under S.108 of the Customs Act and he was arrested and produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. Thereafter the Superintendent, Special Customs Preventive Unit searched the residence of Shri Beeran and found L4 gas stoves without stands and an amount of Rs. 1,87,700. Statements were recorded from the detenu wherein he admitted that he and his brother were sending gold through carriers. This statement was later retracted. Shri Soopy also admitted that on earlier occasions, also, he used to carry gas stoves at the request of the detenu and his brother.

(2.) On the ground that the detenu and his brother Shri Beeran are financiers and organisers of smuggling activities engaged in bringing gold to the country and on the reasonable apprehension that he may continue to abet his smuggling activities, detention order was issued. On 26th December 1994 the detenu obtained anticipatory bail from this Court. Statements under S.108 of the Customs Act were recorded on 26th December 1994, 27th December 1,994 and 28th December 1994. These statements were retracted on 29th December 1994. According to him, his brother owns two flour mills in Sharjah and he was also working in the flour mill and the gas stove was carried at the instance of his brother and he has no share in it. Statements were also recorded from Soopy. The detention order is dated 28th March 1995. But, the detention order was executed only when he surrendered before the Police authorities on 17th January 1997. The detenu has sent a representation to Union of India (respondent No. 1) and State of Kerala (respondent No. 2) through the prison authorities. The representation was rejected by the State of Kerala by communication dated 12th February 1,997 (Ext. P - 10). Central Government rejected it on 28th February 1,997 (Ext. P - 11). A declaration was issued under S.9(1) of the Act on 13th February 1997 (Ext. P - 12). Against the declaration also, detenu filed representation addressed to the 2nd respondent and also to the COFEPOSA Advisory Board as Ext. P - 13.

(3.) Major grounds urged by the petitioner in this Original Petition are: (1) The conclusion in the detention order that he had abetted smuggling of gold through Soopy is not justified and there is no statement by the detenu that he had knowledge that the gas stove contained a stand made of gold coated with silver. Acquisition of gold was done only by his brother Beeran and profit will go only to Beeran. He only assisted his brother when he asked for help and detenu did not abet smuggling of gold; (2) Detention order is dated 28th March 1995. But, it was executed only on 17th January 1997. Therefore, there is undue delay; (3) His representations even though reached before the authorities were not considered before making declaration. Therefore, while making the declaration relevant materials were not considered and on that ground itself Ext. P12 declaration dated 13th February 1997 issued under S.9(1) of the Act should be set aside. Since one year of detention was already over, if declaration is set aside, he can be set free by this Court; and (4) There was inordinate delay and non application of mind while rejecting his representations.