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2005 DIGILAW 555 (KER)

Aiyshabi T v. The Union Of India

2005-08-18

M.RAMACHANDRAN, S.SIRI JAGAN

body2005
JUDGMENT M. Ramachandran, J. 1. This writ petition has been filed by Smt. Aiyshabi, who is the wife of Sri C. K. Muhammed Mustafa. Sri Mustafa is presently detained in the Central Prison, Trivandrum by the respondents, invoking powers under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the 'COFEPOSA Act'), The relief prayed for is a writ in the nature of a Habeas Corpus directing the respondents to produce Sri Mohammed Mustafa before the Court and set him at liberty, and for quashing Ext. P 1 order dated 4-12-2003, which is an order issued by the Government of India, directing that Sri Mustafa is to be detained and kept in custody in the Central Prison, Trivandrum. Ext. P 7 dated 18-2-2005, passed by the Central Government in exercise of powers under S.8(f) of the COFEPOSA Act for directing detention for a period of one year from the date of detention i.e. from 29-11-2004 is also attacked. 2. The enforcement officers of the Government had on 3-2-2003 conducted a search of the premises of one C.K. Beerankutty and had recovered an amount of Rs. 72,70,000 from there. The statement given by Beerankutty implicated the petitioner's husband as also his brother Mr. Sherif, who is at Dubai. Search was conducted at the residence of Mustafa at Vengara, but there was no recovery effected. However, it seems that after a detailed investigation, the Central Government had come to a decision that Sri Mustafa had to be detained, invoking the provisions of S.3(1) of the COFEPOSA Act. Ext. P 1 is the order and the grounds on which such decision had been arrived at had been communicated to him along with Ext. P 1. This is separately marked as Ext. P 2. It is evident that it was not possible for the respondents to enforce the order and a publication had been made, as envisaged under S.7(1)(b) of the COFEPOSA Act requiring Sri Mustafa to surrender. A report had been filed before the Chief Judicial Magistrate, Malappuram on 7-4-2004. It is admitted that Sri Mustafa had surrendered before the Superintendent of Police, Malappuram on 29-11-2004. Thereafter, Ext. P 3 representation had been submitted by him before the COFEPOSA Advisor}' Board. A report had been filed before the Chief Judicial Magistrate, Malappuram on 7-4-2004. It is admitted that Sri Mustafa had surrendered before the Superintendent of Police, Malappuram on 29-11-2004. Thereafter, Ext. P 3 representation had been submitted by him before the COFEPOSA Advisor}' Board. As per his request, he had been permitted to be represented by a lawyer and a hearing had been arranged at Trivandrum on 22-1-2005, by notice dated 7-1-2005. Consequently, orders had been passed on 18-2-2005 holding that the detention order requires to be confirmed and Sri Mustafa is to be detained for a period of one year from the date of his initial detention, i.e. from 29-11-2004. This is under challenge. 3. We had opportunity to hear Sri George Jacob, counsel for the petitioner as also the Assistant Solicitor General Shri John Varghese on behalf of the Central Government. The Government Pleader was also heard. 4. Mr. George Jacob had made two principal submissions. The first is that there was inordinate delay in coming to a conclusion that detention of the petitioner was necessary under the COFEPOSA Act. This was irregular. The other submission was that there was unexplained delay in executing the order and although the order was passed on 4-12-2003, it was executed only on 29-11-2004. Such delay vitiates the detention. 5. Counsel for the petitioner points out that there is no case that Sri Mustafa had absconded or there was any conscious effort on his part to make himself scarce. Steps were not taken as warranted by S.82, 83 or 85 of the Code of Criminal Procedure and this indicated that there was absolute negligence on the part of the enforcement authorities for executing the order, which undermined the credibility or essentiality of the order of detention. The detailed representation submitted to the Authority had been practically overlooked. He had been denied the benefit of a fair hearing, since the request for essential documents had been turned down and this offended fair play and ultimately operate to annihilate his rights envisaged under Art.22 of the Constitution of India. 6. By a counter affidavit dated 30th May, 2005, the contentions as above have been controverted by respondents 1 and 2. The third respondent also has filed a counter affidavit on 23-5-2005, explaining their stand. 7. Mr. 6. By a counter affidavit dated 30th May, 2005, the contentions as above have been controverted by respondents 1 and 2. The third respondent also has filed a counter affidavit on 23-5-2005, explaining their stand. 7. Mr. George Jacob had attempted to stress his arguments with reference to decisions of the Supreme Court of India and advertence had been made to a decision in T. A. Abdul Rahiman v. State of Kerala ( 1989 (4) SCC 741 ). With reference to the observations made in Para.10, 11 and 12 of the judgment, he submits that both the limbs of his contentions, namely delay in passing the detention order as also the delay in apprehension and arrest, are to be favourably upheld, as the delay, at no point of time, has been appropriately explained. It is stated that in spite of initiation of action on 3-2-2003, orders have been passed only on 4-12-2003, the long delay prima facie indicated that there was no case of detention, even if it be admitted that at the first instance there was justification for initiating action. It is pointed out that after the orders were passed, admittedly only on five occasions attempts were made to visit his house, and this also indicated that there was no effort for enforcement of the order. Citing the judgment he submitted that the order stands ab initio vitiated. This had been overlooked while Ext. P 7 order has been passed. He had also adverted to the decision in Assia v. State of Kerala ( 2000 (1) KLT 673 ), which dealt with the unexplained delay as a vitiating circumstance as also a later decision in Lekha Nandakumar v. Government of India ( 2004 (2) KLT 1094 ). The argument about violation of principles of natural justice, as especially applicable to detention cases, had been highlighted with reference to the circumstance that in spite of his request, copies of relevant documents were not made available. The counsel had pointed out that closely after the steps taken by the enforcement officers for apprehending Sri Beerankutty searches were conducted in Tamil Nadu, when an amount of Rs. 70 lakhs had been unearthed and the person who had been apprehended had given the name of Mr. The counsel had pointed out that closely after the steps taken by the enforcement officers for apprehending Sri Beerankutty searches were conducted in Tamil Nadu, when an amount of Rs. 70 lakhs had been unearthed and the person who had been apprehended had given the name of Mr. Mustafa and this also was one of the reasons for the authorities to come to a conclusion that he is required to be detained under the COFEPOSA Act. However, it is submitted that the bail applications submitted by persons, who had been implicated, were highly relevant, since they had retracted from their earlier statements and those vital documents were withheld, when a perusal of the same would have been able for him to highlight his submissions before the Advisory Board, in effect he is prejudiced. Advertence was made to a decision of the Supreme Court reported in Haridas Amarchand Shah v. K.L. Verma ( 1989 (1) SCC 250 ). The cumulative circumstances, according to the counsel, were sufficient enough for this Court to hold that the detention was invalid from its very inception. Although about 9 months have elapsed, at least at this point of time, an order is to be passed whereby the detenue is to be released from the illegal preventive custody. 8. However, Sri John Varghese, Assistant Solicitor General, submits that the submissions as above made are without any factual or legal basis. It is submitted that due to the complex nature of the transactions, in which Sri Mustafa had been involved, materials had to be collected from different quarters and it is not as if he had been subjected to any prejudice till such time the detention order has come to be passed. Practically he had no cause of action up to the date of Ext. P 1 and the delay if at all would have been only operated to his advantage. That did not, to any extent, require that a preventive detention, after full details were collected, became irregular. The casual connection subsisted, and the delay was due to valid reasons. After detention orders were passed, every effort was taken so as to secure his custody and the counsel adverts to the application that had been filed before the Magistrate as also the Gazette notification issued. The casual connection subsisted, and the delay was due to valid reasons. After detention orders were passed, every effort was taken so as to secure his custody and the counsel adverts to the application that had been filed before the Magistrate as also the Gazette notification issued. Evasion was prima facie possible to be found and the person could not have derived any advantage because of his own conduct. It is submitted that the delay itself cannot vitiate any detention and authority of the Supreme Court Judgment had been cited, namely K. Aruna Kumari v. Govt. of A.P. ( AIR 1988 SC 227 ). Counsel had also adverted to the later decisions in Kamarunnissa v. Union of India ( AIR 1991 SC 1640 ) as also Ahamed Nassar v. State of Tamil Nadu ( 1999 (8) SCC 473 ). There was delay in getting statements and materials and every one of such statements had been supplied to the petitioner along with the order of detention and there was no prejudice caused. It is also highlighted that there is no argument forthcoming that such documents had not been supplied. 9. Mr. John Varghese had also adverted to the decision in M. Ahamedkutty v. Union of India ( 1990 (2) SCC 1 ) pointing out that copies of bail applications need not have been supplied, as requested for. In the present case, especially since there was no reliance placed on the bail applications to which reference had been made by the detenue, while the detention order was passed, this need not have been supplied to him before the matter was considered by the Advisory Board, and his full participation had been ensured by permitting him to avail of the assistance of an Advocate. Counsel submits that the handicap that had been suffered by the detenue had not been highlighted or even explained and this was a specific duty cast on the person, when invocation of the extraordinary jurisdiction of this Court was being attempted. As an authority, he had referred to the decision of the Supreme Court reported in Abdul Sattar v. Union of India ( 1990 (1) SCC 480 ). 10. Mr. John Varghese also submits that the argument about the delay in execution of the orders comes without any legal background and this circumstance should not escape notice of the Court. As an authority, he had referred to the decision of the Supreme Court reported in Abdul Sattar v. Union of India ( 1990 (1) SCC 480 ). 10. Mr. John Varghese also submits that the argument about the delay in execution of the orders comes without any legal background and this circumstance should not escape notice of the Court. It is submitted that a Gazette notification had been published and on 27-3-2004 a corresponding publication had been made in local news papers. After the above it was the mandatory duty of the person concerned to surrender. If the person fails to comply with the direction, S.7(1)(b) of the Act provided that unless he proves that it was not possible for him to comply with the orders, appropriate reason for omission was to be substantiated. Otherwise, he was punishable with imprisonment. There was a duty cast on the person concerned to explain his conduct and this was never attempted to be done. He submits that in view of the strong circumstances, indicating his connection with smuggling activities and violation of Foreign Exchange Regulations, a bona fide decision had been taken to the effect that he had to be detained, in public interest. Counsel had invited our attention to the preamble of Act 52 of 1974. Having regard to the persons, by whom and the manner in which such activities or violations are organised and carried on, it was necessary for the effective prevention of such activities and violations to provide for detention of persons concerned. The delay in apprehension did not mean that there was no causal connection with the detention and necessity for detention. Mr. John Varghese submits that only for the reason that there was delay in apprehending a person, the basic order was not to court a defect. Although close monitoring might have been essential for enforcement or the order, the delay by itself would not have vitiated the orders. 11. We had considered the arguments put forward by the petitioner and the respondents. We do not think it is possible for the petitioner to contend that there was any vitiating circumstance for ordering the detention of her husband after a lapse of almost 11 months. He had not suffered any prejudice because of such delay and it was not his prerogative to attack the orders for this reason. We do not think it is possible for the petitioner to contend that there was any vitiating circumstance for ordering the detention of her husband after a lapse of almost 11 months. He had not suffered any prejudice because of such delay and it was not his prerogative to attack the orders for this reason. It is also difficult for us to appreciate the contention that there was omission and lethargy in enforcement of the order of detention. The legal steps that were necessarily to be taken at this juncture had been duly adverted to. Here also, Sri Mustafa was the beneficiary all through out. We are of the view that the delay in enforcement of the orders is not by itself capable of vitiating the orders passed by the detaining authority; such a view is not supportable by any provisions of the Act. Of course prompt action would have served National interest, but the converse is not true. There is no satisfactory explanation forthcoming as to why there was delay on the part of Sri Mustafa to surrender himself, when a Gazette notification had been published under S.7(1)(b) of the COFEPOSA Act. It was only advantageous to him that follow up steps were not taken, as authorised by S.7(1)(a) of the Act. 12. In the matter of non supply of copy of bail applications, the position has been explained. Reliance on such documents had not been made by the Advisory Board, since according to them, there were materials available even otherwise. There are only bald averments now and the actual prejudice suffered has not been disclosed. 13. In the cumulative circumstances, we are of the view that there is no justification to interfere with Ext. P 7. The writ petition is dismissed.