Smt. K. Kadeeja v. The State Of Kerala — 1996 DIGILAW 22 (KER)

Judgment :- TULASIDAS, J. Petitioner is the wife of P. A. Soppy, who is now under detention in the Central Prison, Trivandrum as a COFEPOSA detenu. In this Original Petition she has prayed for the issue of : "(a) a writ of Habeas Corpus to the respondents to produce the detenu before this Hon'ble Court and set him at liberty; (b) writ of certiorari or any other writ order on direction to quash Ext. P1 detention order; (c) writ of certiorari or any other writ or order or direction to quash Ext. P5 confirmation order" 2. It is alleged that at about 10 a.m. on 20-11-1994 the Superintendent (Int.) Air Customs, Karipur and party intercepted him at the exit gate of the Customs baggage Hall after customs clearance as he arrived from Sharjah by Indian Airlines Flight IC 990. The officers asked him whether he was carrying gold and he replied in the negative. But upon suspicion they searched the small bag he carried and recovered from it a white glazed paper piece with the writing in Malayalam "give P. A. Soppy (20) twenty immediately." Allegedly on the reasonable belief that he carried contraband gold and the paper related to some smuggling activities he was involved in, the officers questioned him and he was stated to have told them that the piece of paper was given to him by M. C. Ahamedkutty, in whose room at Sharjah he stated before he left and that he had instructed him to hand over the piece of paper to M. C. Beeran and collect Rs. 20,000/-. He also allegedly told the officers that Ahamedkutty had given a gas stove to be handed over to Beeran. The card board carton that contained the gas stove was subjected to examination in the presence of independent witnesses. The vessel stands were taken out of it and it was found to be rough and unusually heavy. They were of silver colour and one of the three were filed and instead of sliver colour a golden colour appeared. Immediately a goldsmith was summoned and he examined the vessel stands and found them to have been made of gold of 24 ct. purity. The total weight allegedly came to 6537.3 gms. They were of silver colour and one of the three were filed and instead of sliver colour a golden colour appeared. Immediately a goldsmith was summoned and he examined the vessel stands and found them to have been made of gold of 24 ct. purity. The total weight allegedly came to 6537.3 gms. Thereupon the Superintendent seized all the vessel stands made of gold on the reasonable belief that they were smuggled to India without payment of duty and therefore liable to be confiscated. His passport, Boarding pass, Air ticket, customs clearance document, photocopy of the passport, photo, the paper piece and the remaining portions of the stove and the hand bag were also seized for further action. A statement was recorded from the detenu under Section 108 of the Customs Act, where he stated inter alia that he had been working at Sharjah for the last 10 years, that Ahamedkutty of Sharjah gave him the gas stove to be handed over to his brother M. C. Beeran, that he also gave a chit carrying the writing above referred to, that on earlier occasions too he had carried gas stoves for Beeran and Ahamedkutty and delivered as directed, that they met his travel expenses, that the present trip was arranged by Ahamedkutty, that he did not know gold was concealed in the gas stove, that actually he was cheated and maintained his innocence. He had also admitted that on 23-12-1992 he had brought 42 gold biscuits through Trivandrum Airport. Twice or thrice he was the captain of passengers who paid duty for Beeran for the goods brought. He used to send his savings and other remunerations he earned by Demand Draft and also by way of tube money through the said Beeran. On 31-7-1994 by another statement the detenu retracted from the statement he had given alleging that it was obtained by use of third degree methods. He was arrested on 20-11-1994 itself, produced before the Additional Chief Judicial Magistrate (E.O.) Ernakulam and was remanded to judicial custody. Subsequently he was released on bail by order of this Court on Crl. M.C. No. 1947 of 1994 dated 22-12-1994. The house of Beeran was searched by the Superintendent, Special Customs Preventive Unit and party and three gas stoves (RIMA-Japan) as also gas cooking tables (Super general - made in Japan) were seized besides an amount of Rupees 1,87,700/-. Subsequently he was released on bail by order of this Court on Crl. M.C. No. 1947 of 1994 dated 22-12-1994. The house of Beeran was searched by the Superintendent, Special Customs Preventive Unit and party and three gas stoves (RIMA-Japan) as also gas cooking tables (Super general - made in Japan) were seized besides an amount of Rupees 1,87,700/-. Her house and that of Ahamedkutty were also searched, but nothing incriminating were recovered. On completion of the investigation the Sponsoring Authority forwarded the proposal for taking action against him under the COFEPOSA Act. Eventually the first respondent passed Ext. P1 under Section 3(1)(i) of the COFEPOSA Act on 28-3-1995 and he was arrested and detained on 4-4-1995. He was served with the copies of the detention order, grounds thereof and the documents relied on, on 6-4-1995. Aggrieved by the detention order, he sent Ext. P3 representation to the first respondent, who rejected it by Ext. P4. The first respondent also referred his case to the State Advisory Board under Section 8(B) of the Act. By its report dated 5-6-1995 the Board opined that there was sufficient cause for his detention. The State Government thereupon passed Ext. P5 order of confirmation. The Central Government too rejected his representation by Ext. P6 order. In respect of this incident adjudication proceedings were initiated by the Deputy Collector, Cochin, who issued Ext. P7, to which Ext. P8 reply was sent. Subsequently by Ext. P9 the authority "confiscated the primary gold in the form of a quadruped vessel stands of stove, weighing 6537.3 gms. to the Government of India under Section 111(d), 111(1), 111(m) of Customs Act, 1962 absolutely to the Government of India" and "ordered confiscation of the gas stove, cardboard cartons and the 14 gas stoves used for concealment of gold to the Government under Section 119 of the Customs Act, 1962 and the Indian Currency of Rs. 1,87,700/- under Section 121 of the Customs Act to the Government of India." But then penalty was not imposed finding that the detenu was not aware that gold was concealed in the gas stove and "that the offence was not committed with his knowledge." It was submitted that Ext. P1 and the subsequent order for the continuance of the detention are illegal, must be quashed and that he should be directed to be released immediately. P1 and the subsequent order for the continuance of the detention are illegal, must be quashed and that he should be directed to be released immediately. Though the incident had taken place on 20-11-1994 and all the relevant documents came into existence thereafter, the detaining authority passed the detention order only on 28-3-1995 after an unreasonable and inordinate delay. During the above period the detenu was not involved in any other case. The incident had lost its relevance. The detaining authority had failed to apply its mind to the changed circumstances as also to the delay to pass the order. It was further submitted that even at the outset he had explained his position clearly and maintained ignorance about the concealment of gold in the gas stove. His statement as also the relevant circumstances were not properly considered or appreciated. The order of detention passed on the basis of a solitary and isolated act of smuggling was not justified. The detaining authority had failed to ensure that he was afforded an opportunity to make an effective and meaningful representation against his detention. He was not supplied with the copies of the documents relied on in passing the order in spite of his specific request. His representations were rejected without considering the relevant materials. To the Advisory Board and to the confirming authority vital and necessary documents were not made available. The confirmation order was passed without proper application of mind and in a mechanical manner. Extraneous and irrelevant materials had gone into the decision and it is therefore vitiated. In the above circumstance the petitioner has sought the reliefs as aforesaid. 3. The first respondent in the detailed counter affidavit has denied the allegations and maintained that the order of detention is legal and proper and does not call for interference. On behalf of the second respondent too counter affidavit has been filed, where it is stated that the representation of the detenu was rejected in the light of materials made available, that were properly considered. (We shall be referring to the contentions in the counter affidavit later in the course of the judgment). 4. Heard. 5. The relevant facts have been noticed above. The question for decision is whether a case had been made out to quash Ext. P1 passed under Section 3(1)(i) and Ext. (We shall be referring to the contentions in the counter affidavit later in the course of the judgment). 4. Heard. 5. The relevant facts have been noticed above. The question for decision is whether a case had been made out to quash Ext. P1 passed under Section 3(1)(i) and Ext. P5 under section 8(b) of the COFEPOSA Act and to direct release of the detenu from detention. The factual background is not very much in dispute. The detenu was apprehended by the Superintendent, Air Customs and party, Karipur Airport on 20-11-1994 as he tried to smuggle in primary gold of a total quantity of 6537.3 gms. valued at Rs. 31,11,755/-. The gold was concealed in a gas stove that he brought as his registered baggage from Sharjah. He admitted having brought similar gas stoves from Sharjah at the instance of Beeran and Ahamedkutty, who are brothers, under whom he worked and who met his cost of travel. Indeed during 1992 to 1994 he came home over seven times on tickets arranged by the above persons and on all those occasions he had brought gas stoves of the type seized from him, which he delivered at Beeran's residence. Both the brothers had implicit faith in him as he had proved to be a loyal and reliable person. Indeed from among the records seized from him was a piece of paper with a writing that he said was made by Ahamedkutty to his brother Beeran to whom the gas stove was to be handed over, to indicate that he has to be paid Rs. 20,000/- that undoubtedly represented the price for his service. From what had been said about Beeran Ahamedkutty, it could be said that they too had indulged in the smuggling of gold. Beeran was detained under the COFEPOSA Act in connection with the seizure of 10463 gms. of gold. Ahamedkutty too in his statement dated 27-12-1994 given under section 108 of the Customs Act had stated that he purchased the Air ticket for the detenu for his journey on 20-11-1994, that he had sent with him a gas stove for being handed over to Beeran and that its three stands were made of gold. There is indeed reason to believe that the detenu was aware of the activities of his employers, viz. Beeran and Ahamedkutty and that he made himself available to them as a carrier. There is indeed reason to believe that the detenu was aware of the activities of his employers, viz. Beeran and Ahamedkutty and that he made himself available to them as a carrier. His case that he was not aware that gold was concealed in the gas stove that was seized from him, cannot hold water since on his own admission he had carried over 14 gas stoves and delivered the same at Beeran's residence. Indeed he was not lucratively employed at Sharjah and his travel expenses were met either by Beeran or by Ahamedkutty for understandable reasons. They had everything to gain from him, who had willingly offered them his services over a period of time for attractive benefits. His association with them, who hail from the same place as he, was indeed not casual that he should held to be unaware of actually what prompted them to send him a number of times with only gas stoves. From the circumstances he must be held to be aware that they were not just gas stoves, but vehicles for the illicit import of large quantities of gold. He was, as rightly alleged, involved in smuggling of gold from abroad. 6. No doubt, in the adjudication proceedings, which has resulted in Ext. P9, there is a finding that he was perhaps not aware or had the knowledge that in the gas stove that he brought from abroad, gold had been concealed, on which finding and also in view of other circumstances, penalty was not imposed upon him. Nevertheless the gold was ordered to be confiscated. It was submitted that with Ext. P9, the very basis of the order of detention became non-est and therefore his continued detention is unjustified. In support of this contention reliance was placed upon the decision reported in R. Kannan v. State of Tamil Nadu, 1990 TNLJ (Crl) 60. In that case, foreign gold worth Rs. 1,09,755/- was seized by the Customs officials from the business premises of the detenu and the detention order was passed solely on that ground. Eventually adjudication proceedings were initiated and the authority observed that "even though gold bars with foreign marking and primary gold bits were recovered from his shop, there was no evidence to show that he is a habitual smuggler or an agent of an organised gang" and therefore taking a lenient view penalty was not imposed upon him. Eventually adjudication proceedings were initiated and the authority observed that "even though gold bars with foreign marking and primary gold bits were recovered from his shop, there was no evidence to show that he is a habitual smuggler or an agent of an organised gang" and therefore taking a lenient view penalty was not imposed upon him. The learned Judges held that in view of the above view of the Sponsoring authority in the adjudication proceedings, the subjective satisfaction arrived at by the detaining authority was non-est and the contention of the detention was not warranted. We are afraid that the order in the adjudication proceedings was overemphasized and perhaps given more importance than was legally warranted. The proceedings initiated under the COFEPOSA Act and under the Customs Act are separate and independent and have different objects to serve. The imposition of penalty in the adjudication proceedings is a matter of discretion of the adjudicating authority. An order of detention under the COFEPOSA Act can be passed dehors the steps and action taken under the Customs Act if the detaining authority was satisfied upon relevant materials to pass an order of detention to prevent the detenu from indulging in activities prejudicial to the interest of the State. An order of detention under the COFEPOSA Act can be legitimately passed for prevention of smuggling activities upon the subjective satisfaction of the detaining authority, which is not bound by what had been said by the Sponsoring authority in the proceedings for adjudication. To hold otherwise would render the object of the COFEPOSA Act totally meaningless. The COFEPOSA Act is a preventive measure to curb and prevent prejudicial activities that endanger the national interest unlike proceedings for adjudication, that are departmental in nature and serve a limited purpose. We are of the view that Ext. P9 - It has not become final since an appeal is proposed to be filed against it, as per the counter affidavit filed on 22-12-1995 - has not rendered Exts. P1 and P5 non-est as submitted. With respect, we are unable to follow the above decision that does not lay down the correct law. 7. It was submitted that there was inordinate delay to pass the detention order after the alleged incident that had taken place on 20-11-1994 and that has vitiated the order. There is no merit in this contention. With respect, we are unable to follow the above decision that does not lay down the correct law. 7. It was submitted that there was inordinate delay to pass the detention order after the alleged incident that had taken place on 20-11-1994 and that has vitiated the order. There is no merit in this contention. The detention order was issued on 28-3-1995 and executed on 4-4-1995 after observing all the necessary legal formalities. There was indeed no inordinate delay to hold that the incident had either became stale or too remote in point of time. The detenu submitted his representation on 25-5-1995 and it was rejected by the first respondent on 30-5-1995. The contention that before doing so the first respondent did not call for the comments of the Sponsoring Authority had been denied. The representation was rejected by Ext. P4 where it was stated that the relevant materials had been duly considered. We disagree that the representation was rejected in a perfunctory manner. The second respondent too rejected the representation by Ext. P6 after it has had all the materials that it felt necessary to consider. No unreasonable delay had occurred to the prejudice of the detenu. 8. It was submitted that before the Advisory Board material documents were not placed and that the detenu was also not afforded proper assistance in spite of his requests. Indeed he had been heard by the Advisory Board, which had also the relevant records that it considered for its opinion that there was a case for his detention. Indeed Ext. P7 dated 1-5-1995 could not have been placed before it since the case had been referred to it on 26-4-1995. No doubt, it was stated on behalf of the first respondent that Ext. P7 was placed before the detaining authority by the Sponsoring Authority as per letter dated 12-5-1995 and that it was not a document that was relied on for issuing the order of detention. The petitioner's contention in this behalf has no merit. 9. It was urged that the written proposal made by the Sponsoring authority was not supplied to the detenu and therefore the right guaranteed under Art. 22(5) of the Constitution to make an effective representation against the order of detention was infringed resulting in the order being vitiated. The petitioner's contention in this behalf has no merit. 9. It was urged that the written proposal made by the Sponsoring authority was not supplied to the detenu and therefore the right guaranteed under Art. 22(5) of the Constitution to make an effective representation against the order of detention was infringed resulting in the order being vitiated. In support reliance was placed upon the decision reported in Uma Shanker Verma v. Superintendent Central Jail Naini, Allahabad, 1990 Cri LJ 2114 (All). The question is whether by non-supply of the copy of the written proposal of the sponsoring authority, the detenu could not make an effective and meaningful representation and had thereby been prejudiced. In the counter affidavit the first respondent has stated that "the written proposal sent by the Sponsoring Authority to State Government is a secret and confidential document. It is an inter departmental correspondence. Petitioner is not entitled to get a copy of the proposal sent by the Sponsoring Authority to the State Government and no prejudice has been caused to the detenu in that matter." But then the above averments cannot readily be accepted and seem, to fall short of the requirement indicated in Art. 22(6) of the Constitution. It was held in the above decision that (Paras 22 and 23) : "The requirement in Art. 22(6) is that the authority making an order of detention shall not be required to disclose the facts which such authority considers to be against the "public interest" to disclose. It will be noticed that this clause is an exception to clause (5) of Art. 22 under which the authority making an order of detention is required to communicate to the person against whom an order of detention is passed, the grounds on which the order has been passed. In order of invoke the applicability to clause (6) of Art. 22, it is necessary for the authority making an order of detention to say that it would not be in the "public interest" to disclose the contents of a particular document to the person against whom the order of detention is passed." But then we are unable to agree that by non-supply of the copy of the written proposal of the Sponsoring Authority, the detenu could not make an effective and meaningful representation. Ext. P3 belied his complaint. Ext. P3 belied his complaint. Indeed he sought revocation of his detention on all the grounds that he thought were available which were thorough and exhaustive. It could hardly be said that he was in any manner prejudiced in making an effective and meaningful representation against his detention and for its revocation. 10. Along with Ext. P1 order of detention, the detenu was supplied with the grounds of detention and documents that were relied on. It was submitted that while passing the order of detention, the detaining authority ought to have considered only the relevant materials and eschewed from consideration those that were irrelevant and extraneous. At any rate, the detaining authority ought to have seen that irrelevant and extraneous materials were not communicated to the detenu along with material documents. But such document and materials were supplied that confused him and he could not make an effective and meaningful representation against his detention. It was further submitted that copies of the relevant documents relating to the seizure of gold at Trivandrum Airport of 12-8-1985 and that made from Karipur Airport on 25-3-1985 were not supplied in spite of requests. It was submitted that these were necessary, particularly in view of the vague, bald and ambiguous allegations in paragraph 13 of the grounds of detention. It was further alleged that Beeran and Ahamedkutty were also allegedly involved in the seizure of 4081 gms. of gold from Ulladamcherry Moideen and all the documents relating to that incident, which were necessary, were also not supplied. In the first place we are unable to agree that irrelevant and extraneous materials had gone into the impugned order of detention. As already stated, the detenu is not an isolated individual, but is allegedly associated with a gang of smugglers who operated from abroad. Beeran, Ahamedkutty and Moideen had already been exposed. Matters relating to them could hardly be said to be extraneous or irrelevant for the impugned order passed against the detenu. Indeed such documents relating to them and the incident they were involved in as would be really necessary had been supplied and he had made an effective and meaningful representation. In the particular facts and circumstances the non-supply of the copies of mahazars relating to the seizure of gold which alone was taken exception to by counsel in the course of his argument, was not so material as to have seriously prejudiced him. In the particular facts and circumstances the non-supply of the copies of mahazars relating to the seizure of gold which alone was taken exception to by counsel in the course of his argument, was not so material as to have seriously prejudiced him. It is obvious that it had not and the grievance put forward is hollow. In our view, the order of detention and its confirmation had been made upon proper application of mind to the relevant materials, documents and circumstances. 11. We have given our anxious consideration to the contention raised by the petitioner and in our considered view no case has been made out for quashing Exts. P1 and P5, which are legal and valid. We decline to grant the reliefs claimed in this Original Petition, which is accordingly dismissed. Petition dismissed.