Abdulla v. State of Kerala — 1989 DIGILAW 509 (KER)

Judgment :- 1. In this Original Petition, the petitioner, who is the father of Sri.K.A. Ibrahim @ K. Abdulla Ibrahim @ Kadamparambathu Abdulla Ibrahim, detenu No.1030 in the Central Prison, Trivandrum, challenges Ext.P1 and Ext.P5 orders passed by the 1st respondent under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act') and prays for issue of a writ of habeas corpus directing respondents 1 and 2 to produce the detenue and set him at liberty. 2. The facts leading to the filing of this Original Petition may briefly be stated as follows: On 14-7-1988, the detenue landed at Trivandrum Airport by Air India Flight No. AI-936 from Dubai. After immigration clearance, he was marked to Counter No. 19 for Customs Clearance and while he was waiting at the said counter, he was intercepted by a Customs Intelligence Officer under the belief that he had concealed contraband gold in his baggage. Customs Intelligence Superintendent examined two of his baggages at counter No. 10 in the presence of witnesses. The detenue was found to possess a cancelled Indian Passport bearing No.K.892232 and a valid Indian Passport bearing No.B.064879. He was also in possession of an Air Ticket, which he used for his travel from Dubai to Trivandrum. His baggages consisted of a card-board carton with the markings 'Yenmade cloths washing machine WA-410 Green 220-240V 50 HZ (2 Prong Plug)' on which the Air India baggage tag No.TRV AI 033955 was found stuck and a small yellow air bag, which he brought as his cabin baggage. He declared a washing machine, 2 sarees, 5 meters of textiles, 2 Audio cassettes, 1 bottle liquor, 1 carton of cigarette and some cosmetics and toilet requisites. The Intelligence Officer asked him whether he had concealed any gold, gold ornaments or other valuable goods in his baggage, for which he replied in the negative. Thereupon, the Intelligence Officer opened and examined his two pieces of baggages and found nothing in excess of what he declared. But on suspicion that gold was concealed in the cardboard carton containing the 'Yenmade' washing machine, the carton was examined in detail, and on tearing off the brown coloured plain paper seen at the bottom portion of the inner side of the cardboard carton, 15 gold rods were found concealed. But on suspicion that gold was concealed in the cardboard carton containing the 'Yenmade' washing machine, the carton was examined in detail, and on tearing off the brown coloured plain paper seen at the bottom portion of the inner side of the cardboard carton, 15 gold rods were found concealed. The Customs Intelligence Superintendent summoned a licensed gold dealer who certified that all the 15 gold rods were of 24 carat purity, that they totally weighed 1747.5 gms. and that they valued Rs.5,24,250/-. They were seized by the Superintendent under reasonable belief that they were smuggled to India and were liable for confiscation under the provisions of the Customs Act, 1962, Foreign Exchange Regulation Act, 1973 and Import and Export Trade (Control) Act, 1947. 3. The detenu was taken into custody. On questioning him, the detenue gave a voluntary statement to the Customs Authorities. He was arrested and produced before the Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam who granted him bail on 21-7-1988 on condition that he should furnish cash security of Rs.10,000/- and produce two solvent sureties for an amount of Rs.25,000/- each. 4. Ext.P1 order of detention under S.3(1) of the Act was served on the detenu and he was arrested and imprisoned at Central Jail, Trivandrum. Ext.P2 is the grounds. of detention dated 14-6-1989 furnished to him. He filed a representation evidenced by, Ext.P3. His case was referred to the COFEPOSA Advisory Board along with his j representation evidenced by Ext.P3 as required under S.8(b) of the Act. Thereafter, j Ext.P5 order was issued confirming the detention of the detenu for a period of one year. 5. In this Original Petition, learned counsel for the petitioner challenged in Ext.P1 and P5 orders on the following grounds:-(1) Ext.P1 order was passed by the j detaining authority after a long delay; (2) there is no scope for any reasonable j apprehension of the detenu's continued involvement in smuggling activities; and (3) the detaining authority has not applied its mind to relevant materials and documents before passing Ext.P1 and P5 orders. 6. No doubt, there is delay of one year and 13 days in between the date on which j he was taken into custody and Ext.P1 order was passed. 6. No doubt, there is delay of one year and 13 days in between the date on which j he was taken into custody and Ext.P1 order was passed. In the counter affidavit filed on behalf of the detaining authority, it is averred that after show cause notice was issued, the files had to be processed for action under the Act and there was no avoidable delay in ordering the detention. In support of his contention, that delay is fatal, learned counsel invited our attention to a few decisions. In S.K. Serajul v. State of Bengal (AIR 1975 S.C.1517) which arose in respect of a detention order issued under the Internal Security Act it was found that the incidents recited in the order were on 21-11-1971, 24-11-1971 and 15-1-1972 and the order was passed only on 24-8-1972 that even after passing that order, petitioner was not arrested until 22-2-1973, that there was thus delay at both stages and that this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention. It is pertinent to note that in the said decision, the Supreme Court further observed as follows: "Of course when we say this we must not be understood to mean that whenever there is delay in making an order of detention or in arresting the detenue pursuant to the order of detention, the subjective satisfaction of the detaining authority must beheld to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine." Learned counsel for the petitioner also cited a ruling of the Bombay High Court in Ayeshabi v. L Hmingliana, Secretary to Government of Maharashtra (1989 (39) E. L. T. 196) (Bombay) in support of his contention. There also the Court found that the detaining authority failed to explain the considerable delay, that the requirement of life-link between the incident and apprehension that the detenu would indulge in prejudicial activities, was given a go-by and that therefore the order could not be sustained. There also the Court found that the detaining authority failed to explain the considerable delay, that the requirement of life-link between the incident and apprehension that the detenu would indulge in prejudicial activities, was given a go-by and that therefore the order could not be sustained. In Vinod Mohahlal Desai v. Union of India (1989 (39) ELT 208 -Bombay) also the Bombay High Court held that there was no satisfactory explanation for the long delay and the order of detention could not be justified on the basis of a solitary incident that had taken place. 7. Learned counsel for the respondents submitted that there is no delay to take the detenu to custody after the detention order was passed and that it cannot be contended that there was delay at the second stage of arrest. He argued that the delay in passing Ext.P1 order was due to the fact that the authorities had to issue a notice under the Customs Act to the detenu and the files had to be processed for action under the Act. Learned counsel heavily relied on the following observations of the Supreme Court in Rajendrakumar Natvarlal Shah v. State of Gujarat & Others (AIR 1988 SC. 1255): "9. In the enforcement of a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay, between the prejudicial activities complained of under S.3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect -on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide net-work and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realisation of the purposes of the Act is of ten rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards insisted upon by the Courts. Effective administration and realisation of the purposes of the Act is of ten rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under S.3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of Art.22(5) would not be satisfied unless the 'basic facts and materials' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person". 10. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art.22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention." The Supreme Court overruled the decisions of the Delhi High Court in Anilkumar Bhasin v. Union of India (Crl.W.No.410 of 1986 dated 2-2-1987) (1987 Crl.L.J.1632), Bhopinder Singh v. Union of India (1985 (28) Delhi LT.493), Anwar Esmail Aibani v. Union of India (1987 (3) IJ Rep.383) Surinder Pal Singh v. M.L. Wadhawan (1987 (2) Crimes 449) and Ramesh Lal v. Delhi Administration (Crl.W.No.43/84 dated 16-4-1984) which took a contrary view. 8. Yogendra Murari v. State of U.P. & Others (AIR 1988 S.C.835) is a case which arose out of a detention order issued under the National Security Act. Dealing with the question of delay in passing the order of detention even in such case, the Supreme Court said: "We do not find any merit in the plea that the impugned order is bad on account of delay. It is true that the ground which led the District Magistrate to pass the detention order became available in July and the order was passed only in December but it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay". It is true that the ground which led the District Magistrate to pass the detention order became available in July and the order was passed only in December but it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay". In the light of the principles enunciated in the above decisions of the Supreme Court, we do not consider that the delay is fatal in this case. 9. The next contention raised by the learned counsel is the that there is no scope for any reasonable apprehension of the detenu's continued involvement in smuggling activities. The detenu has admitted his involvement in his statement before the Customs Authorities, though in his objection to show cause notice issued under the Customs Act, he stated that he was unaware of concealment. Learned counsel also submitted that this is the only instance of smuggling alleged against the detenu, that during the period in between his release by the Magistrate on bail and the date of. detention, there was no involvement in any smuggling activities by the detenue and that therefore there was no material for formation of the subjective satisfaction of continued involvement in prejudicial activities. We should note that reasonable belief arising out of prior clandestine conduct of the detenue is sufficient to justify an order of detention though one such instance by itself is not such reason. Suspicion is not sufficient, nor is belief unsupported by reason. If there is reasonably probative connection Between materials on record and the belief formed out of the same, it is not for the Court to interfere in cases involving attempts which are likely to subvert the economic structure of the society. 10. Nor are we persuaded to hold that the respondents went wrong in not setting much store by the statement to the customs authorities in which the detenu sought to resile from his prior statement confessing concealment of contraband gold in his baggage. It is not for us to accept or reject either one or the other of the two statements. We are only to see whether the detaining and reviewing authorities went wrong in accepting the first and not accepting the second statement. We do not find any such infirmity in those proceedings as justifies interference with the same. 11. It is not for us to accept or reject either one or the other of the two statements. We are only to see whether the detaining and reviewing authorities went wrong in accepting the first and not accepting the second statement. We do not find any such infirmity in those proceedings as justifies interference with the same. 11. Learned counsel for the petitioner vehemently contended that some of the important documents were not placed before the detaining authority and on this ground also the orders of detention were bad. He made particular reference to the fact that in the objection filed by the detenue, he retracted from the confession statement made by him on 27-1-1989. Ongoing through the file, we find that this material was placed before the detaining authority. We have already referred to this objection which he filed on 27-1-1989, in which he stated that he brought the carton in which the gold was concealed to be delivered to the relatives of Kunhumon at his request and that he was unaware of the concealment of the gold rods. So also, the order of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, granting bail to the detenu was also in the file placed before the detaining authority. In these circumstances, it cannot be said that the detaining authority has not applied its mind to these documents before passing Exts.P1 and P5 orders. No infirmity has been made out in issuing Exts.P1 and P5 orders. Original Petition fails and it is accordingly dismissed.