SHAMEENA N.P. Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) These two writ petitions have been filed challenging two orders of detention passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). W.P.(Crl.) No.228/2019 has been filed by the petitioner, who is wife of the detenu Mohammad Thahim N.K., challenging Ext.P1 order of detention dated 12.02.2019 and W.P.(Crl.) No.229/2019 has been filed by the petitioner therein, who is wife of the detenu Noonhikkara Naseem, challenging Ext.P1 order of detention dated 12.02.2019. Since both the writ petitions have been filed on the basis of same set of events and since the grounds urged in both cases are same or similar, these two writ petitions are heard together and being disposed of by a common judgment.

(2.) The petitioners state that the officers of Directorate of Revenue Intelligence (DRI) searched the residences of Thahim (husband of the petitioner in W.P. (Crl.) No.228/2019) and of Naseem (husband of the petitioner in W.P. (Crl.) No.229/2019) on 01.08.2018 and seized Indian currency worth ₹3,57,600/- and certain registers and note books. Both the detenus were taken into custody. The detenus were enlarged on bail on 28.8.2018 on certain conditions. Based on statements extracted from the detenus, orders of detention were served on the detenus on 03.03.019. The said orders of detention were upheld by the COFEPOSA Advisory Board.

(3.) The petitioners contend that in passing the detention orders, the procedures enshrined under Article 22(5) of the Constitution were flouted. The detenus have not indulged in any illegal activities. On detention, the detenus were given copies of large number of documents in bunches. Presentation of numerous documents under one RuD number disabled the detenus from properly identifying and appreciating each of the documents. This disabled the detenus from making effective representation against the orders of detention. There is no reference to specific documents in the detention orders to draw subjective satisfaction on the part of the detaining authority about any prejudicial activity of the detenus. Non-application of mind on the part of the detaining authority is writ large. The grounds of detention were not formulated independently by the detaining authority, who only went by the briefing of the sponsoring authority mechanically. A reading of detention orders would make it clear that the detaining authority had simply copied the facts presented by the sponsoring authority. The detention orders do not state that the grounds of detention were formulated after having gone through the documents.