RISWANA BEGAM Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the wife of Abu Backer Bin Abdulla, S/o. Abdullah, Jalan Manjindia, Kuala Lumpur, Malaysia, who has been detained as per Ext. P. 1 order of detention dated 31-5-2008, issued in exercise of the powers conferred on the Government of Kerala by Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act'). The writ petition is filed to issue a writ of Habeas Corpus to the respondents to produce the detenue before this Court and to set him at liberty. There is also a prayer for issue of a writ of certiorari to quash Ext. P1 order of detention.

(2.) In Ext. P2 grounds of detention, the following allegations are made against the detenue. On 10-4-2008 the detenue arrived at the International Terminal of the Airport at Karipur at about 8.00 a.m. by Srilankan airlines flight UL 169 from Colombo. The officers of the directorate of revenue Intelligence, Calicut, examined the travel documents and baggages of the detenue. The detenue was travelling from Singapore to Colombo on 9-4-2008 and from Colombo to Calicut on 10-4-2008. He was having a Malaysian Passport. It was found from the customs clearance gate pass that the detenue brought goods worth Rs. 15,000/- in the checked in baggages. On examination of the baggages, a total number of 3906 computer RAM chips were found. The market value of the same was assessed at Rs. 46,42,800/-. The goods were not declared by the detenue before the Customs and duty was not paid. The goods were seized on the reasonable belief that the same were attempted to be smuggled to India. The statement of the detenue was recorded under Section 108 of the Customs Act. The detenue was arrested. Later he was released on bail by the Magistrate concerned. While he was on bail, he was arrested pursuant to Ext. P1 order of detention. The detenue is undergoing detention in the Central Prison, Thiruvananthapuram.

(3.) Sri S. Palanikumar, learned Counsel appearing for the petitioner, submitted that the order of detention is liable to be quashed and that the continued detention of the detenue is illegal. He raised the following points: (1) The order of detention was passed under Section 3(1)(i) of the COFEPOSA Act with a view to prevent the detenue from indulging in smuggling of goods, whereas the grounds of detention says that the detaining authority has arrived at the subjective satisfaction that the detenue is likely to continue to engage in prejudicial activities in future also and, therefore, it is necessary to detain him under Sections 3(1)(i), 3(1)(ii) and 3(1)(iii) of the COFEPOSA Act with a view to preventing the detenue from smuggling prohibited goods in future. The Counsel submits that this would show that the detaining authority has not properly applied its mind and the order of detention is thus vitiated. (2) The representation submitted by the detenue was not properly considered and, therefore, the continued detention is illegal. (3) There is variation in the order of detention and the grounds of detention. While the order of detention says that it was issued to prevent the detenue from smuggling of goods, paragraph 14 of the grounds of detention says that it is necessary to detain the detenue under Sections 3(1)(i), 3(1)(ii) and 3(1)(iii) of the COFEPOSA Act with a view to prevent him from smuggling prohibited goods. (4) The detenue is a Malaysian citizen. He married a woman belonging to Tamil Nadu. The detenue knows only Tamil and Malay. He has stated so in his statement dated 10-4-2008 which finds a place in Ext. P 2 grounds of detention as well. The detenue has stated the same in Ext. P. 4 representation dated 20-6-2008 and has pointed out that for making an effective representation, it is necessary to supply to him the material documents translated into Tamil. The translations were not supplied and, therefore, the continued detention is illegal. (5) The family members of the detenue were not informed of the arrest. (6) All the documents relied upon by the detaining authority were not supplied.