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2003 DIGILAW 111 (KER)

Safiya v. Government of Kerala

2003-02-11

JAWAHAR LAL GUPTA, KURIAN JOSEPH

body2003
Judgment :- Jawahar Lal Gupta, C.J. (Oral) Mr. Moideen Koya, the petitioner's husband, was ordered to be detained for a period of one year under Section 3(1) (iv) of "The Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974" (hereinafter referred to as the Act). The petitioner has approached this Court under Article 226 of the Constitution with the complaint that the order is illegal. She prays that the order be quashed and that the detenu be released. A few facts as relevant for the decision of this case may be briefly noticed. 2. On August 18, 2001, the Officers of the Customs Department conducted a search at the premises of Mr. Pulikuth Hamzath Abdusalam @ Kunjumon. 38 gold biscuits of foreign origin valued at Rs. 19, 80,567/-. were recovered. In addition, Indian currency of more than Rs. 15, 00,000/- and of foreign Countries was also recovered. Certain documents were also seized. One of these documents was a telephone directory in which there was a reference to "Koyakka, c/o Allaka 370444." Thereafter, the matter was investigated. On October 31,2001, the detenu was arrested. On November 17,2001, he was released on bail. On January 21, 2002, an order of detention was passed. A copy of the order of detention is at Ext.P1. The original order is in Malayalam. Despite being asked the counsel for the petitioner has not filed an English translation. We have, therefore, looked at the copy supplied by the counsel for the respondents. By this order, it was directed that Mr. Koyakka shall be detained for a period of one year. A copy of the grounds on which he and been ordered to be detained was furnished to him. Along with the order of detention, the grounds were also furnished to the detenu. A copy of the grounds for detention has been produced as Ext. P2. 3. Even though the order of detention had been passed on January 21, 2001, it could not be served on the detenu despite repeated attempts. It appears that on September 4, 2002, the person who had stood as surety for the detenu at the time of his release on bail, had withdrawn his consent. As a result, the detenu was ordered to be taken into custody by the Court of Additional Chief Judicial Magistrate, Ernakulam. It appears that on September 4, 2002, the person who had stood as surety for the detenu at the time of his release on bail, had withdrawn his consent. As a result, the detenu was ordered to be taken into custody by the Court of Additional Chief Judicial Magistrate, Ernakulam. On coming to know of the detenu's presence in prison, the authority served the order of detention on him on September 14, 2002. He submitted a representation on September 26, 2002. A copy has been produced as Ext. P9. It was rejected by the Central Government vide order dated October 18, 2002. However, the petitioner has not produced a copy of this order. The COFEPOSA Advisory Board also heard the detenu on November 14, 2002. His representation was considered. Vide its order dated November 16,2002, the Board found that there was sufficient cause for the continued detention of Mr. Moideen Koya. Hence this petition. 4. The petitioner has raised various grounds to challenge the order of detention. It is not necessary to notice all the grounds in detail as those, which have been urged by the learned counsel, shall be presently adverted to. Counter affidavits have been filed on behalf of the State and the Central Governments. 5. Mr.B.Kumar, learned counsel for the petitioner, has contended that in the grounds of detention, reference has been made to Mr. Muhammad Mustafa. It has been observed that he had been ordered to be detained. The State Government did not consider the fact that the Advisory Board had recorded an opinion in December 2001 that there was "no sufficient material" for the detention of the said Mohammed Mustaffa. The relevant fact having not been considered, the order of detention is vitiated. Secondary, the learned counsel has contended that the detenu had been remanded to judicial custody on September 4, 2002. The order of detention was served on him on September 14, 2002. The fact that he was already in custody was not taken into consideration while serving the order. Still further, it is contended that there was an inordinately long delay of 11 days in considering the representation submitted by detenu. No explanation, much less than a satisfactory explanation having been given, the impugned order of detention is vitiated. Lastly, it is submitted that the order having been passed on irrelevant considerations, it deserves to be quashed. 6. Still further, it is contended that there was an inordinately long delay of 11 days in considering the representation submitted by detenu. No explanation, much less than a satisfactory explanation having been given, the impugned order of detention is vitiated. Lastly, it is submitted that the order having been passed on irrelevant considerations, it deserves to be quashed. 6. The claim as made on behalf of the petitioner has been controverted by Mr. Lal George, learned counsel for the State Government and Mr. Pillai, who has appeared for the Union of India. 7. The short question that arises for consideration is: - Is the impugned order liable to be set-aside on the grounds as urged by the learned counsel? 8. Mr. Kumar has contended that while passing the order of detention, the authority has relied upon the fact that Mr. Mohammed Mustaffa had been ordered to be detained. Thus, the order is vitiated. 9. A perusal of the order shows that the sequence of events has been noted in detail. Thereafter, in in paragraph 15 at page 7 of the grounds, it has been inter alia observed as under: "Action under Section 7(1) of the COFEPOSA Act, 1974 has been initiated against both Pulikuth Hamzath Adbussalam @ Kunjumon and Shri. T.V.Khadar. Shri.M.Mohammed Mustaffa and Shri. P.Rasheed (another man involved with Shri. T.V,Khadar) are undergoing detention. Proposal for detention of Shri. Pulikuth Abdul Samad is being submitted. The foregoing evidences show the persons with whom you were associated and the motive of the gang to fabricate documents to divert the natural course of the case." 10. A Perusal of the above shows that while recoding the facts, it has been mentioned that Mr. Mohamed Mustaffa and Mr.P.Rassheed are undergoing detention. It was also mentioned that there was a proposal for the detention of Mr. Pulikuth Abdul Samed. Lastly, it was concluded that the facts were indicative of the petitioner's association with Mustaffa, etc. The order of detention was apparently not being passed on the ground that Mr. Mohammed Mustaffa was undergoing detention. Thus, it cannot be said that the order was based on the fact that MR. Mohammed Mustaffa was undergoing detention. On the contrary, the effort was to indicate as to who were the detenu's associates. 11. Mr. Kumar contends that the order of detention of Mr. Mohammed Mustaffa was undergoing detention. Thus, it cannot be said that the order was based on the fact that MR. Mohammed Mustaffa was undergoing detention. On the contrary, the effort was to indicate as to who were the detenu's associates. 11. Mr. Kumar contends that the order of detention of Mr. Mohammed Mustaffa had been revoked on January15, 2002 while the order of detention has been passed on January 21,2002. This fact has not been mentioned anywhere in the pleadings. In fact, even the ground has not been specifically raised. Irrespective of that there is nothing on record to show as to when Mr.Mohamed Mustaffa had been actually released from the custody. The petitioner has nowhere indicated that Mr. Mohammed Mustaffa had been actually released from detention on any day prior to January 21,2002. In this situation, the contention that the detenu's detention is vitiated cannot be sustained. 12. In this context, it deserves mention that the Court has to find the case as pleaded by the parties. In the petition, there is no specific ground with regard to Mr. Mohammed Mustaffa's detention having been revoked or the order of detention being vitiated on that ground. Thus, the respondents had no chance to explain the factual position. In any case, on a reading of the relevant paragraph, it is obvious that the observation had been made in an effort to show that the detenu was associated with people whose activities were not totally above board. There was nothing more that the authority was wanting to say. 13. Mr.Kumar has referred to the decision of their Lordship of the Supreme Court in Mohd. Shakeel Wahid Ahmed V. State of Maharashtra & others, AIR 1983 SC 541 to contend that the authority had failed to apply its mind. Thus, the order is vitiated. 14. We have perused the decision of their Lordship in Mohd. Shakeel's case. It appears that the order of detention was sought to be supported on four grounds. Three grounds had been found to be non-existent by the high Court. The validity of the 4th ground was challenged before their Lordship. Thus, the order is vitiated. 14. We have perused the decision of their Lordship in Mohd. Shakeel's case. It appears that the order of detention was sought to be supported on four grounds. Three grounds had been found to be non-existent by the high Court. The validity of the 4th ground was challenged before their Lordship. In that context, it was observed that the detaining authority had failed to apply its mind "to the highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner now rests, in addition to something more, was not sustained by the Advisory Board in case. "Still further, it was noticed by their Lordship -the fact that the Advisory Board had recorded such an opinion on identical facts involving a common ground was at least a relevant circumstance which ought to have been placed before the detaining authority in this case." Then, their Lordship had observed that-since three out of the four grounds on which the petitioner was detained have been held to be bad by the High Court, we have to proceed on the basis that the petitioner was detained and could validly be detained on the remaining ground only." It was in view of a cumulative consideration of various factors that their Lordship had concluded that the authority had failed to apply its mind to an important consideration, which ought to have been taken in to account. In the present case, it is the admitted position that Mr. Mohammed Mustaffa had been detained. Nothing had been placed on record to show that he had been actually released before January 21,2002. In fact, even the factum of the order having been revoked, has not been brought on record. Thus, we do not find any material to hold that the authority had failed to apply its mind to a relevant fact. Equally, there is nothing to show that any irrelevant material was taken into consideration. Resultantly, the first contention cannot be sustained. 15. Mr. Kumar then contended that the detenu was actually in custody on September 14,2002 when the order of detention was served on him. The detaining authority had failed to take this fact into consideration while serving the order. Thus, the order of detention is vitiated. Resultantly, the first contention cannot be sustained. 15. Mr. Kumar then contended that the detenu was actually in custody on September 14,2002 when the order of detention was served on him. The detaining authority had failed to take this fact into consideration while serving the order. Thus, the order of detention is vitiated. Reliance in support of this contention has been placed on the decision of their Lordship of the Supreme Court in Binod Singh V. District Magistrate, Dhanbad, Bihar & others, AIR 1986 S.C 2090. 16. The sequence of events noticed above indicates that an order on detention had been passed against the detenu on January 21,2002. Thereafter, he was found to be absconding. He could not be traced. Proceedings for attachment of his property were initiated. Notification under Section 7 was published in the Gazette. It appears that when the order of attachment of his property was passed, he devised a method to surrender before the Court. Accompanied by his surety, he had appeared before the Court of the Additional Chief Judicial Magistrate. He was ordered to be remanded to judicial custody. When the factum of his being in custody became known, the Officer had served the order of detention on him. 17. Mr.Kumar contends that the detenu having been taken into custody, it was obligatory on the part of the competent authority to consider and decide as to whether or not it was necessary to pass the order of detention. In support of this contention, the learned counsel has placed reliance on the decision of their Lordships of the supreme Court in Binod Sing's case. This was a case from Bihar. The detenu was involved in five criminal cases involving serious offences. Ultimately, an order of detention was passed against him under the National Security Act, 1980 on January 2, 1986. The order was actually served on him on or about January 11, 1986. On that day, he was already in custody. On this basis, it was contended that “the petitioner/appellant was in detention when the petitioner/appellant was served with the order of detention. There were criminal cases against the petitioner. There was a murder case, in respect of Crime No.331 of 1985. In the said case, investigation was in progress. When the order was served, the petitioner had already surrendered in respect of the criminal charge against him. There were criminal cases against the petitioner. There was a murder case, in respect of Crime No.331 of 1985. In the said case, investigation was in progress. When the order was served, the petitioner had already surrendered in respect of the criminal charge against him. At the relevant time, the petitioner was under trial in the same criminal case. While considering this contention, it was observed by their Lordship that-if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case, when the actual order of detention was served upon the detenu, the detenu was in jail." On this basis, their Lordship had taken the view that in the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified." 18. On a consideration of the decision, we find that the decision does not lay down the proposition that as soon as a person against whom an order of detention has been passed surrenders before the police or the Court, the order of detention should not be served or that the authority has to reconsider it. In our view, the decision only lays down that if a person is involved in a heinous crime of murder and there is no imminent danger of his being released on bail then the authority should consider whether he should still be detained under the National Security Act. To illustrate: It can happen that an order of detention under COFEPOSA is sought to be served on an individual. On coming to know of it, he runs away at the sight of the Officer who has to serve it on him. On the way, he gives a tight slap to a Constable. The said Constable takes him into custody. Would the authorized officer be not entitled to serve the order on the person who has been ordered to be detained? Will he be obliged to go back to the competent authority and report that the Constable having apprehended the man on the possible charge of a criminal offence, the order of detention should be re-examined? We think that it is only when a person is involved in a serious crime and unlikely to be released on bail that the case may have to be re-examined. Not otherwise. 19. We think that it is only when a person is involved in a serious crime and unlikely to be released on bail that the case may have to be re-examined. Not otherwise. 19. So far as the present case is concerned, the clear position, which is established on the record, is that the detenu had made himself scarce after the passing of the order of detention. He could not be found despite repeated efforts till it was discovered that he had surrendered on September 4, 2002. Apparently, the detenu is a well to do person. He is alleged to have made sales of gold worth Rs.18 crores within a period of about two weeks. He had readily found a surety when he was granted bail. Why had the said surety withdrawn his consent suddenly on September 4, 2002? Why had the detenu not found another person to help him at that time? There is no indication on the record. None has been given during the course of the hearing. In fact, it appears form the record that the detenu had accompanied the surety to the Court on September 4, 2002 and was remanded till September 17,2002. Since the remand was only till September 17,2002, it was apparent that on that day he could have been released. This being the factual position, the petitioner can derive no advantage from the decision of their lordships in Binod Singh's case. 20. The counsel states that the decision in Binod Singh's case was also applied in kimti Lal Sethi V. Lt. Governor of National Capital Territory of and others, JT 1996 (5) S.C.98. 21. The factual position in Kimti Lal Sethi who was totally different. Therein, the detenu had remained in custody for a period of more than 10 months. The Hight Court had quashed the order of detention immediately thereafter, another order of detention was passed within a period of one month and 25 days. In the peculiar facts and circumstances, it was held by their Lordships that the order was punitive in character. Such is not the position in the present case. Thus, the petitioner can derive no advantage from this decision. 22. Mr. Kumar contends that the order of detention is vitiated, as there was an inordinately long delay of 11 days in the consideration of the representation submitted to the Central Government. Is it so? 23. Such is not the position in the present case. Thus, the petitioner can derive no advantage from this decision. 22. Mr. Kumar contends that the order of detention is vitiated, as there was an inordinately long delay of 11 days in the consideration of the representation submitted to the Central Government. Is it so? 23. This ground has also not been raised in the petition. However, the counsel has stated before us that the detenu and submitted the representation to the prison authorities on September 30,2002. The Joint secretary had recorded Para-wise comments on October 7.2002. Yet, the order was passed by the competent authority on October 18,2002. 24. In the counter-affidavit filed on behalf of the Union of India, it has been inter alia pointed out that October 12 to 15 were holidays. The order had been actually passed on October 17, 2002. It was dispatched to the detenu by the Office of the Secretary (Revenue) on October 18, 2002. Still further, at the hearing of the case, learned counsel for the respondents has pointed out that the case file consists of 2200 pages. In fact the voluminous file has been shown to us. It clearly indicates that the record was voluminous. The part of the record like the entries relating to the making of telephone calls etc. was in very fine print. Many documents were in Malayalam. It is quite likely that some officer may have asked for a translation of those documents. In any event, keeping in view the volume of the papers that had to be considered by the competent authority, it cannot be said that the time of six days taken by it was a culpable negligence or callous inaction. In fact, if the order had been passed within a day or two, it may have been criticized on the ground that the authority had failed to consider the entire material. Since six days were spent, the criticism is that there was an inordinately long delay. In the circumstances, we do not find any merit in this contention. 25. Mr. Kumar has placed reliance on the decision of their Lordships of the Supreme Court in Rajammal V. State of Tamil Nadu and another, AIR 1999 S.C. 684. On the basis of this decision, it is contended that even four day's delay was culpable. 26. In the circumstances, we do not find any merit in this contention. 25. Mr. Kumar has placed reliance on the decision of their Lordships of the Supreme Court in Rajammal V. State of Tamil Nadu and another, AIR 1999 S.C. 684. On the basis of this decision, it is contended that even four day's delay was culpable. 26. This was a case of a 32 years old lady who was detained on the ground that she was trading in illicit liquor. Still further, she had remand in custody for about one year. In the context of the facts of the case it was contended that there was delay in the decision of the representation. Reference was made to the observations in paragraph 10. These may be noticed in extenso: "What happened in this case was that the Government which received remarks from different authorities submitted the relevant file before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thus, there is some explanation for the delay till 9-2-1998. Thereafter, the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14-2-1998. Though there is explanation for the delay till 9-2-1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14-2-1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with almost promptitude in cases involving the vitally important fundamental right of a citizen." On a perusal of the above, we find that the observations had been made in the context of the peculiar facts and circumstances of the case. However, we cannot read these observations to mean that the order on the representation has to be passed on the same day or within 24 hours. However, we cannot read these observations to mean that the order on the representation has to be passed on the same day or within 24 hours. Equally, the observations of their Lordships of the Supreme Court do not mean that even in a case where the record runs into more than 2000 pages, the action in rejecting the representation shall be vitiated merely because the authority had taken six days to pass the order. Still further, it deserves notice that in matters of delay, no hard and fast rule can be laid down. Each case had to be examined on its own facts and circumstances. So far as the present case is concerned, we find that there was no culpable delay and thus the order is not vitiated. 27. Learned counsel for the respondents referred to various decisions relating to delay in deciding representations or passing orders of detention. It has been pointed out that even the delay of 52 days was not considered unreasonable. Reference has also been made to the decision of the Constitutional Bench in K.M. Abdulla Kunhi and B.L. Abdul Khader V. Union of India and others, (1991) 1 SCC 476. 28. A detailed examination of these cases is not necessary, as we have not found any merit in the contention as raised by the counsel for the petitioner. In fact, we find that the action of the respondents conforms to the Rule laid down by the Supreme Court in the latest decision as reported in Sitthi Zuraina Begum V. Union of India an others, AIR 2003 S.C. 323. 29. Lastly, it was contended that the order was vitiated as the authority had taken irrelevant facts into consideration. It was pointed out by the learned counsel that the authority had noticed that Kunjumon was associated with T.V. Khadar. It had further noticed the activities attributed to Lakshmi Narayanan and Sreekumar. These are irrelevant for the purpose of the present case. Thus, the order of the competent authority is vitiated. 30. So far as the association with Kunjumon and Khaddar is concerned, he relevant observations are contained in paragraph 15 which has already been noticed above. The text and the context are clear. The authority was only trying to indicate that the petitioner's association was not with good persons. It may be mentioned here that initially, the detenu had denied any connection with Kunjumon. The text and the context are clear. The authority was only trying to indicate that the petitioner's association was not with good persons. It may be mentioned here that initially, the detenu had denied any connection with Kunjumon. It was only at a later stage when he was confronted with the hundreds of calls made by him to Kunjumon that he had acknowledged the factual position. Thus any reference to Kunjumon regarding the detenu's association with him as also with Khader was actually not irrelevant. So far as the reference to Lakshmi Narayanan and Sreekumar is concerned, it was contended that the observations were irrelevant. Even this contention is not correct. It has been pointed out by the learned counsel for the respondents and is also apparent from the record that these two persons had visited the detenu. They were intercepted by the police. They had disclosed that they had come from Mysore. They had brought four lakhs or rupees to buy gold biscuits form the detenu. Thus, a reference to these two persons was also not irrelevant. 31. The liberty of a citizen is undoubtedly very important. The Court is under a duty to ensure that there is strict compliance with the provisions of law. Yet, the Court cannot lose sight of the fact that those who commit economic offences do harm to the national interest. Thus, while examining the case, a cumulative view of the situation has to be taken. All the relevant facts have to be seen. If, on a consideration of the totality of the circumstances, it appears that the citizen had violated the provisions of law and his activities are not in the large national interest, the Court should be slow to come to the aid of the detenu. However, each case has to be examined on its own facts. 32. No other point has been raised. In view of the above, we find no merit in this petition. It is consequently dismissed. In the circumstances, we make no order as to costs.