CHANTHU SAINABA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the wife of Shri Kalathingal Musthafa (hereinafter referred to as "the detenu") who has been detained under the provisions of Conservation of Foreign Ex-change and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act"). In the grounds of detention (Ext. P2) served along with the detention order dated 14-12-1997 it is stated that at about 6-30 p.m. on 30-7-1997 at Trivandrum International Airport one Mohammed Ali Abdullah was intercepted by officers of the Directorate of Revenue Intelligence, Kozhikode when he was waiting to board the Air India Flight AI 913 to Abudhabi and examination of his suit-case led to recovery and seizure of foreign currencies kept concealed with the linings of the suit-case. On questioning he stated that the said suit case was handed over to him by one N.P. Zakkariah who had come to see him off and waiting outside the Airport. It was further stated that the above suit-case was entrusted to the above Zakkariah by one Kader Kurikkal. On questioning Shri Zakkariah it was stated that he worked as carrier for some gangs for delivering foreign currencies entrusted by Kurikkal Musthafa and one Ashraf of Chemmad and he used to get Rs. 1,500/- per trip. On the basis of the statements made by the passenger Mohammed Abdullah and N.P. Zakkariah and on the basis of the information received, the Assistant Director, DRI, Kozhikode, on 4-8-1997, issued summons under S. 108 of the Customs Act to Musthafa Kurikkal and to Ashraf asking them to appear before him on 14-8-1997. A telegram was sent by Musthafa Kurikkal pointing out that he was under medical treatment. Again on 22-8-1997 summons was issued by affixture. Summons was issued again on 10-9-1997. But, Musthafa Kurikkal did not appear. Thereafter, Ext. P1 order and Ext. P2 grounds of detention were served on 27-12-1997 and the detenu was arrested and detained in the Central Prison, Trivandrum. He made a representation (Ext. P3) on 14-1-1998 addressed to the 1st respondent, State of Kerala. Similar representation was addressed to the Chairman, COFEPOSA Advisory Board as well as to the Union of India. By Ext. P4 dated 6-2-1998 his representation was rejected by the 1st respondent-Government of Kerala. After considering the representation, the Advisory Board came to the opinion that detention of the detenu Shri Kalathil Musthafa alias Kurikkal Musthafa under S. 3(1)(i) and 3(1)(iii) of the Act is necessary and held that there is sufficient cause for the detention and the detention shall continue for a period of one year and the detention was confirmed under S. 8 of the Act for a period of one year with effect from 27-12-1997. By Ext. P5, representation of the detenu dated 14-1-1998 was disposed of by the Government of India on 4-3-1998.

(2.) It is contended on behalf of the detenu that there is a mistake in identity. His name was not Kalathil Musthafa. Musthafa Kurikkal or Kurikkal Musthafa stated by Zakkariah is not the detenu. The detention order was addressed in the name of Kalathil Musthafa. In fact, he is Kalathingal Musthafa. He has absolutely no connection with the activities and his name was involved in the same due to a mistaken identity. Even though this fact was pleaded there is total non-application of mind. It was contended that his representation dated 14-1-1998 was disposed of by Ext. P5 order by the 2nd respondent after long delay. Various other grounds are also stated in the O.P. First we will deal with the delay in disposal of the representation.

(3.) In ground 'L' of the O.P. it is stated as follows :