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2002 DIGILAW 799 (KER)

Salhammal v. The Government of Kerala

2002-12-09

JAWAHAR LAL GUPTA, R.BASANT

body2002
Judgment :- Jawahar Lal Gupta, C.J. The petitioner has approached this Court with the prayer that a writ of Habeas Corpus be issued directing the respondents to produce her son Sehu Abdul Kader Bairose, who has been detained in the Central Prison, Poojappura as COFEPOSA detenu. She also prays that the order of detention, a copy of which has been produced as Ext. P1, be quashed. 2. A counter-affidavit has been filed on behalf of the respondents. 3. Counsel for the parties have been heard. On behalf of the petitioner, Mr.P.K.Mani has contended that the detention order is vitiated as the competent authority had failed to notice that the detenu was already in custody and that no order of detention was necessary. Relying upon the decision of Their Lordships of the Supreme Court in Vijayakumar v. State of J & K and others. AIR 1982 S.C. 1023, learned counsel submits that the detaining authority did not even notice the fact that the detenu was in custody. According to the counsel, there is not “even a whisper” in the impugned order regarding the fact that the detenu was in judicial custody. Thus, he submits that the order is vitiated. 4. A copy of the order of detention has been produced as Ext. P1. The reasons for detention were also communicated to the detenu. These are at Ext. P2. A perusal of the two documents shows that on April 18, 2002, the Superintendent of Customs along with the Officers of the Air Intelligence Unit, had intercepted the detenu at the Trivandrum Airport. He was in possession of an Indian Passport dated March 15, 1999 issued at Thiruchirappally. He had arrived from Male by the Indian Arilines Flight No.IC 964 at about 3.40 P.M. He was carrying three pieces of checked in baggage besides three hand bags. One of these was a black coloured bag with the marking “RED STONE.” On X-ray examination of the baggage, a dark band was noticed on the X-ray monitor. The baggage was examined in the presence of independent witnesses. Twenty gold biscuits besides other undeclared goods were recovered. It was further found that all the 20 gold biscuits were of 24 Ct. purity. The total weight of the gold biscuits was found to be 2332 Gms. The value was fixed at Rs.11,77,660/-. 5. The detenu admitted that he had not declared the gold biscuits. Twenty gold biscuits besides other undeclared goods were recovered. It was further found that all the 20 gold biscuits were of 24 Ct. purity. The total weight of the gold biscuits was found to be 2332 Gms. The value was fixed at Rs.11,77,660/-. 5. The detenu admitted that he had not declared the gold biscuits. He did not possess any valid documents to prove legal importation of gold and that he had attempted to bring gold without paying customs duty. The gold biscuits were thus seized for further action under the Customs Act, 1962. Even the other goods were seized. The statement of the detenu was recorded. 6. On a consideration of the matter, the authority found that Sehu Abdul Kader Bairose had attempted to smuggle the 20 gold biscuits into the Country deliberately by concealing and keeping the goods in his hand baggage. He had done so despite knowing that it was an offence under the Customs Act, 1962. It also noticed the fact that the detenu had made 12 trips to Male. On a cumulative consideration of the matter, it decided to detain the petitioner’s son under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 7. Mr.Mani contends that the fact that the detenu was already in judicial custody was not noticed. Is it so? 8. A perusal of Ext. P2 shows that in paragraph 8, it has been specifically noticed by the authority that Sri. Bairose was arrested on April 19,2002. He was produced before the Chief Judicial Magistrate,Trivandrum on the same day. He had been remanded to judicial custody till May 3, 2002. On that day, his remand was further extended till May 16, 2002. Thus, the contention that there was not even a whisper in the order about the detenu being in judicial custody is wholly unfounded. In this situation, the petitioner can derive no advantage from the decision of Their Lordships of the Supreme Court in Vijayakumar’s case (supra). 9. Faced with the situation, Mr.Mani has contended that the detenu had retracted from his confessional statement. He had taken up a specific plea that the statement was extracted by use of force. This allegation was made in the application for bail. It was not denied in the objections filed by the Special Public Prosecutor before the Additional Chief Judicial Magistrate, Ernakulam. 10. The contention is wholly misconceived. He had taken up a specific plea that the statement was extracted by use of force. This allegation was made in the application for bail. It was not denied in the objections filed by the Special Public Prosecutor before the Additional Chief Judicial Magistrate, Ernakulam. 10. The contention is wholly misconceived. A copy of the bail application submitted on behalf of the detenu is at Ext. P9. In paragraph 2, it was vaguely alleged that he had “not given any voluntary statement, but his statement was obtained by force by the Customs Officers.” In the objections filed on behalf of the respondents, it has been categorically averred that the accused had not declared the 20 gold biscuits with foreign markings as also the other items. He had produced no valid documents to prove legal importation of the goods. He did not have the foreign currency for payment of customs duty. Thus, the goods were seized from his possession. Still further, it has also been averred that the accused had revealed having carried $2000 while going to Male from Trivandrum on April 17, 2002. He had given the same amount to Mr.Nilaam for the purpose of starting a business of smuggling gold biscuits. In turn, Mr.Nilaam had met him and handed over a bag containing 20 gold biscuits. He had promised to meet him at Madurai. There is nothing to suggest as to how the respondents had come to know all this. Still further, the petitioner has not explained as to how and for what reason the accused was falsely implicated. Another fact which deserves notice is that while in the application at Ext.P9, use of force was alleged, in the subsequent application, in paragraph 8, it was alleged that the accused was “forced to sign some blank papers under the threat and force applied by the Customs Officers.” This allegation was denied in the reply, a copy of which is at Ext. P13. What deserves notice in particular is that the petitioner had written the confessional statement in his own hand. Thus, the allegation that he was made to sign blank papers or that there was use of force, cannot be accepted. 11. Mr. Mani has, then, contended that the detenu belongs to Tamil Nadu. He is a Tamilian. He was not given the true translation of the documents mentioned at S1. Thus, the allegation that he was made to sign blank papers or that there was use of force, cannot be accepted. 11. Mr. Mani has, then, contended that the detenu belongs to Tamil Nadu. He is a Tamilian. He was not given the true translation of the documents mentioned at S1. Nos.3, 21, 25 and 31 in the list at Ext.P3. Thus, the order of detention is vitiated. 12. This contention cannot be accepted. Firstly, it deserves notice that the document mentioned at S1. No.3 is a copy of the summons dated April 18, 2002 issued to the detenu. At S1. No.21 is the copy of the remand warrant dated April 19 issued by the Chief Judicial Magistrate, Trivandrum. At S1. No.25, is the copy of the bail application filed by the detenu himself. The last document referred to by the learned counsel is the order on the bail application. It has not been shown as to how the applicant had been handicapped in submitting his representation against the order of detention. Still further, a perusal of the representation, a copy of which has been produced as Ext. P6, shows that it had been drafted by the applicant’s counsel on his instructions. No prejudice what so ever is shown to have been caused. 13. Lastly, it has been contended by the counsel that there was delay in the disposal of the representation. Thus, the order of detention is vitiated. 14. We are unable to accept this contention. A copy of the representation dated June 24, 2002 has been produced as Ext.P6. Further, a perusal of the order dated July 17, 2002, copy of which has been produced as Ext.P8, shows that the detenu had submitted a representation on June 27, 2002. Which was that representation? Why a copy was not produced? There is no explanation. In any event, the decision had been given within less than a month. We find no inordinate delay so as to call for any interference. 15. No other point has been raised. In view of the above, we find no merit in this petition. It is consequently dismissed.