Smt Jayanthi Gangadhar vs State Of Karnataka on 22 July, 2010

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Karnataka High Court

Smt Jayanthi Gangadhar vs State Of Karnataka on 22 July, 2010

Bench: K.L.Manjunath, B.S Patil

i

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22"'nAx OF JULY, 2010 CV_
PRESENT

THE HON'BLE MR. JUSTICE K.L. MAxqﬁmAI3=i   '

AND
THE HON'BLE MR. JQSIICﬁx$}$.PAII§  'V
WRIT PETITION No}$$}20I0*(ﬁcj;xVw
BETWEEN: ha   ' 

Jayanthi Gangadhar w/o late"?
Gangadhar, 60 yaars,N"*If "_ﬂ_ _
Residing nea::ﬁiIan=Ga;age;."f2
Jarrigudde,_Salﬁé:,~' I 3 f. V
Karkala Tqf, udu§iuDis:,'.I.V_~ .. PETITIONER

(By Agvocaﬁé 3;; I i;Ab¢u1lah for
' _ Heg§e_A§Sts»)

AND:

$i;,Stété;ofVKarnétaka,
'VI.By_its'PrI;.Secretary,
%%Home;Department,
'Vi6haﬁa7Souﬁhé,
Dr, Ambedkar Veedhi,
Baﬁgalcre#1.

HuI§;]Fripcipé1 Secretary,

,"WGovtg of Karnataka,
_3 Home Department,

-_" Vidhana Soudha,
 "Dr. Ambedkar Veedi,

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any one of the provisions of COFEPOSA Act; (2) that
the order of detention is dated 15.5.2008 since no

efforts are made by the officers to apprehend the

son of the petitioner till _29,l0;é§O9,g asses, 55>

detention has to be held as has is iaﬁ an aaésuﬁt o£""

delay and latches; and (3) ha maﬁgri§ild§$ available
with the Addl. Chief secretary and srle_Sehretary to
the Government, Hone" pa9s¢ﬁsé5§,»_to hold that
petitioner's son has been indulged in smuggling of
fake Indian Qurrency ﬁotes,--ifUlu W
2. Per ¢¢ﬁtra,,iE§rﬁ¢sfsp§£f Advocate by producing
the records asuhsits, that "none of the grounds are
attracted" te*,§he_ff§cf§, ﬁnd circumstances of the
case. ihcﬁerding to her, as per the provisions of

sec 21s): as dtae; COFEPOSA Act R/w Sec.2(22) and

'fg3ec.2(3§) of the Customs Act, first ground urged by

o@the petitioner has to be negatived. So far as the

{:second_ground is concerned, he contends that though

'ﬁ£ﬁé: order of detention was passed on 15.5.2008

'diefforts were made to apprehend the petitioner's son

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and the Department has taken steps to find out the
whereabouts of pet:i.tioner's son. Since petitioner's

son was absconding, a petition was a1so_;fil.e~d_:'hefore

the Prl. Civii Judge-Judicial  §f'irst£T.__

Class, Mangalore under Sec.'7 (pi)  j.  4]

R/w Sec.82 of Cr.P.C. . _e§'.'h_.e dociumentsh
the department disclose  eijforts were
made to apprehend  'i'herefore, he
contends that AthereA_V_V_is_   in arresting
Pet"-"i°ner's   cannot be said

that there 3is~i:__"Vdel:é.y in apprehending

petitioneiﬂs'  as the last point is

concerned,    that considering the

statemexéjitv Vmade" 'by the wife of the detenue under

Sec..AJ:.{3.8_V  Customs Act and based on the

  one Mohammad Shabir and Mohammed

 Asif who 'are"'.Valso indulged in receiving Indian fake

._;Cu:r.rer4cy Rotes from petitioner's son and those

1*--

., -. ~   ave'
persons havatelg served an order of detention of one

 and other materials placed before the Addl.

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Chief Secretary to the Government, Home Department,
order passed by the Government on 15.5.2Gj€a§3:"j'<«.asV per
Annexure--A is valid and therefore he

court to dismiss the petition.  ._

3. So far as ground NoV».,1_' is«'---ccncern--ed,:' 
contention of Mr  bﬁsré    that
smuggling of Indian V 'ifapke  Noteisiivv would not
attract any violation  of COFEPOSA
Act. According":t_o'  short ground,
detenue has   Per contra,
learned   upon Sec.2(22) and
Sec.2(39)vE'--.of V  Act R/w Sec.2(e) of
COFEPOS2AVk__VAc'1i-_'}  that fake currency notes

:sha;L1 '-iialiso. be tireatved as goods as defined under

Sec,V_'2V'{3§}  Customs Act and any smuggling of

iVﬁgoodsixyouldaattract the provisions of CO§'EPOSA Act.

_._i.i'_j:I«n*.,order"__to appreciate this point, it would he

 for us to consider Sec.2(e) of COFEPOSA Act

'afw-hich? reads as hereunder:

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"Smuggling' has the same meaning as in_ clause
(39) of Sect ion 2 of the Customs Act , 3.962 and
all its grammatical variations and fcognate

expressions shall be construed accordi_ng;y'»_:f..

In View of the definition of 

Act, we have to consider clause "xof  

Customs Act which reads as, hereunder:
»(39) "smuggling", i;{<.VV;Té'elation_'to any goods,
means any act or __omissi_on~._which will render such
goods liable to '_ 'confisca*t4ion~._ under Sec.111 or
Sec.113."  I '    

In view of this," ye kiaveiiliihvgthe definition
clause of  as: clause{22} of
Sec.2 of  clearly holds that
the goods--. ' currency and negotiable
instruments';s:_l_' "  definition clause, it

is c1e,a§:rVt~o usx"t..2:1at smuggling Indian Currency Notes

a:t..r§ac.t_s _Vthe-.:p~::ovisions of COFEPOSA Act and our View

is 'suAV15.19Vor't§.3.__bffV..judgment of I-Ion'ble Supreme Court in

 Aacsnuzt.  IBRAHIM MANIK Vs. UNION or mam AND

.ffo¥1jz{mRss..4_n(i'992(3.) scc.~----1) and also the judgment of

 1~:.¢n':'1+;i'e° Supreme Court in MRS. SARASWATI-II SESHAGIRI

 'V--.':sf."""S'1'1-\'1'E or KERALA AND ANOTHER (1982(2) s.c.c.-~

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310). In the aforesaid cases, the detenues therein
had indulged in export of huge amount ;ofFrfndian

Currency Notes to a foreign country in a pianned and

premeditated manner. In the present casef@detgnue\

stationed at UAE was exporting fake indiandcur§gncyf'J

to India. Considering thVe:"'~..j'udgment  §1on'bi'e
Supreme Court :h1 Mrs, Sarasuathi seshagiri's case,
cited supra, point ﬂo;i.has to he held against the
petitioner and in favour of the respondents. So far

as the secondigpeint"ii%'L§oncerned; it is no doubt true that ____ "the 'order iof':detention was passed on 15 .5 . 2eoé=n,_A and '_ epprehended on 2 9. 10 . 2009 when he landed eﬁiﬁochinuhirport from UAE. The main contention of ﬁrehbdullah before us is that the very purpose_ of --passing an order of detention is to preuentg a fperson from indulging in smuggling nj activitiese if there is a delay and latches in . apprehending such persons, the order of detention tHLhgg to he set aside in view of judgment of Hon'b1e su;:t'éme Court in SMF SULTAN ABDUL KADER Vs. JOINT H 9 SECRETARY TO GOVT. OF INDIA ANS O'I'§IERS (l__998 (8) SCC.---343) and also the judgment of the Supre:nftei"'€;ourt in MANsU RAMESH NAHAR Vs. UNION or xnnrn Asa oisﬁas (1999 (4) S . C.C.-~116} . Per .

Advocate relying upon the 3 Court in BHAWARLAL GANEsHMA:qI vs; THE swam 0? TAsz:

NADU AND ANOTHER (A I.R._ is79x_s.¢;--541}§ contends that the delay in ar'i'e«sti:_1g1o.,V}a'.'"détenne cannot be a ground to set aside the detention.

4. Now in we have to consider whether petitioner's son would be the order of detention and whether'lh'e_:Vhas'-- released only on the said 'o'11nd*.i._..':' 2

5. woalrefully considered the judgments rel2;.ed'.'"upc>Vn both the parties. In the instant allegation made against the petitioner's son he being a student at U'.A.E'.. was sending coﬁrier to his aids who are in Karnataka along with bf E0 Tea Powder fake Indian Currency Notes. So, in order to prevent from continuing the smuggling ..act'«iv--j_.ties Government felt that he has to be detained provisions of COFEPOSA Act for__.a pertiod" "¢>'n'1e;.npy..,_,.:;;é.~_< Now the question is if there ideilany ai:d:7--:the "

Government has not £oundl__v""out the _wher_e'a?:oi1ts petitioner's son and he Varrelstedp iziamediately in order to prevent étiontinuing smuggling whdvvisurqg-uj: H"

activities,' Mr._Abdul?;ah'*s:L2bmit_s there was also no material pass an order of detentionvpvas is based on the as if petitioner's son met one or Arabia in a Departmental store 'Saudi' ~ where the deal was stuck. petitioner's son never but he was stationed at U.A.E. and the're"~--Vwa's'f no chance for the petitioner's son to Isoudi Arabia and to meet Mohammad Shabir and Asif in a departmental store and he also I.......

contends that no material is placed before the coufi"

i 24 EE to show that petitioner's son was using mobile which has been mentioned in the order. Since grounds 2 & 3 are interwlinked with each other, we would lite to consider these two grounds together.fhWM

6. It is not in dispnte thatC petitionerisd son originally hails from Karkala in Uduoijhistrict. it is also not in dispnte that" Qetitioneris son was residing at U.A.E.. Lies! ee§1e{ he ﬂgeen from the statement given hf'theipetitioner;s daughter--in*law wife of the:. of the Customs Act, petitionerfs son has heen in U.A.E. since 2010. He has indnlged in smnggling activities by sending fake Indian éﬁrrency Notes from U.A.E. to India from 2UG4f0§d°Qnwa;dsqh" """ "Now the question i; whether petitioner*s= son has visited Soudi Arabia and 'dwwhether petitioner's son had met one of his aids who » has given statement and who has served the order of V,det'ent.io"n of one year, in a departmental store in tSondifArabia,cannot be decided in this case since no °_ material is placed to show that he had not traveled II'.

from UAE to Soudi Arabia. Be that as it may, only on that ground. we cannot hold that there fwés no connection between petitioner's son ,énd_°Mohemmed Asif and Mohammed Shabir. By_lookinqmint§.ﬁheyozdert. of the Government, it is clear to us that there are 'J w5~.I¢/xa/{aid plenty of nmteriay that petitione;t§ eon"had sent fake Indian Currency hotes to india through courier. Therefore, looking into ch? other circumstances, we cannot come to ithe 5¢dn¢iﬁ§i§niitﬁ$£f there Was no nexus between ﬁohenned Asifqend Mohamed Shabir with petitioneffﬁ éonft go its es the delay is concerned, admittedly,;ﬂetertﬁentVhad'ﬁade efforts to find out the whereehouts dot Lthet tetitioner's son. As a matter @of'.fact,t hegertment has filed a petition tarot; ¢hg .civi1 Judge (Sr.Dn.) 5 J.M.F.C. under Sec v(1,(a;y aha" (b) of cpymposa Act. Materials WK produced by the State would disclose that they were _ trying to find out the whereabouts of petitioner's 'i*..:AsoIi1.-- the date of the order of detention. In >""»_iv:§w"¢£ the efforts made by the Government, we do C/, 13 not think that there is any delay in apprehending petitioner's son. In case of Bhawarlel Ganeshmalﬁi, cited supra, Hon'ble Supreme Court has stated that delay in arresting' the detenueM_on tacceunt= of ethed* detenue absconding cannot be a ground to set aside"

the order of detention and the sa@e_cennct he held as illegal. Considering _the_'bach¥ground of this case and nature of £ﬁa.o£:¢n§éf§£ated againﬁt the petitioner's son; judgment in ﬁ$a§$ria1 Ganeshmalji is more applinaﬁig .%h%ﬁI the lather two judgments relied upon by the counsel fps the petitioner. In the circumstances} grounds 2 & 3 are also to be held against the7petitioner@; in the circumstances, we do not see any merits in this petition. 7{'h'A§§e§egn§1g; this petition is rejected. ,_ . £361"

WEDGE Sd/~ JUDGE '~ M2 60'? 10

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Karnataka High Court

Smt Jayanthi Gangadhar vs State Of Karnataka on 22 July, 2010

Bench: K.L.Manjunath, B.S Patil