Kerala High Court
Sainaba, W/O Ahammedkutty vs State Of Kerala And Ors. on 6 February, 1996
Equivalent citations: 1996(66)ECR681(KERALA)
Author: J.B. Koshy
Bench: J.B. Koshy
ORDER K. Sreedharan, J.
1. Petitioner is the wife of Ahammedkutty, COFEPOSA detenu No. 1386. Ahammedkutty has been detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as "the COFEPOSA Act".
2. Facts which led to his detention are as follows. - On 7.12.1994, the Customs Intelligence Officer attached to Air Customs, Calicut Airport detained a passenger by name Mujeeb Rahman, who was waiting for security check for travelling to Sharjah. On examining his body, foreign currency of various denominations, including U.S. Dollars, Oman Riyals, Saudi Riyals, Kuwaiti Dinars, U.A.E. Dirhams, Qatar Riyals and Bahrain Dinars, valued at 1.2 Crores of Indian Rupees were recovered from him. Mujeeb Rahman gave a statement under Section 108 of the Customs Act. According to him one Saide of Kacheripady had arranged for a Visa for him to proceed to Sharjah on condition that he should carry foreign currencies. Sri Mujeeb Rahman was arrested and subsequently released on bail. The Customs authorities questioned various people including the detenu. When he was questioned under Section 108 of the Customs Act on 21.1.1995, he stated that at the instance of Saide he volunteered to smuggle foreign currencies out of India for remuneration of Rs. 10,000/- and air-tickets. After staying at Dubai for about a week he returned on 3.8.1994. After further investigation into the facts stated by the detenu, Customs authorities placed the records before the detaining authority for issuing order of detention under the COFEPOSA Act. On 15.5.1995, Exhibit PI order of detention was issued under Section 3(1)(i) of the COFEPOSA Act. In execution of that order, detenu was taken into custody on 2.6.1995. Grounds of detention and connected documents were served on the detenu on 3.6.1995. He did not make any representation against the detention. Detaining authority referred the case relating to the detenu to the Advisory Board on 29.6.1995. On 2.8.1995, Advisory Board gave its opinion justifying the detention. On the basis of that opinion, Exhibit P3 order of confirmation under Section 8(f) of the COFEPOSA Act was issued on 10.8.1995. On 23.8.1995, detenu filed representation to all authorities. By Exhibit P5 order dated 29.8.1995, the detaining authority rejected the representation. The Central Government, by Exhibit P6 order dated 21.9.1995, followed the same. Hence this Original Petition.
3. Ld. Counsel representing the petitioner, wife of the detenu, raised three points for our consideration--(1) There was inordinate delay in issuing Exhibit PI order of detention. On account of the delay, the nexus between the act of smuggling and the object sought to be achieved by detention has been snapped; (2) Central Government did not dispose of the representation within a reasonable time and it has vitiated the order of detention and (3) relevant documents were suppressed by the sponsoring authority, from the detaining authority and consequently the detention is vitiated. We, shall proceed to deal with these submissions in seriatim.
4. Detenu was questioned on 21.1.1995. He gave a statement contemplated by Section 108 of the Customs Act. Therein, it was revealed that he went to Dubai, at the instance of Saide, on 22.7.1994 and took along with him foreign currencies. He stayed in Dubai for about ten days and returned on 3.8.1994. That was the only act of smuggling in which the detenu was involved, even as per his statement under Section 108 of the Customs Act. So, according to counsel, the act of smuggling, if at all was done by the detenu, was during the last week of July, 1994. Order of detention was issued only on 15.5.1995. Thus, there is a delay of nearly ten months. This delay, according to ld. Counsel, has snapped the nexus between the act of smuggling and the order of detention or the purpose for which the order of detention is issued. It is true that the statement given by the detenu will reveal that he smuggled foreign currencies from India in July, 1994. But that fact was revealed only when he was questioned on 21.1.1995. Thereafter alone could the Customs officials start investigation. From the date of getting information by the Customs authorities, the order of detention was issued within four months. This delay can never be considered to be inordinate, so as to vitiate the order of detention. As stated by the Supreme Court in Rajendra Kumar v. State of Gujarat , a distinction must be drawn between the delay in making of an order of detention and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. In cases of mere delay in making of an order of detention under COFEPOSA Act, Court should not merely on account of delay in making of the order of detention, assume that such delay is not satisfactorily explained. Persons engaged in smuggling are possessed of large resources and influence and it is in such adverse circumstance the officers are to get sufficient material to be placed before the detaining authority. So, in the ordinary circumstances, delay is bound to happen and that delay cannot be treated as fatal to the order of detention. A Division Bench of this Court in Rajendran v. State of Kerala 1994 (2) KLT 692 observed :
The Court must consider the nature of prejudicial activities indulged in by the detenu and the likelihood of his repeating the same. If the detaining authority is satisfied on the available material then on account of mere delay in issuing the order of detention, the Court should not normally strike down the detention.
We are in respectful agreement with the above statement of the law. In the instant case one Mujeeb Rahman, who was proceeding to Sharjah, was intercepted at Calicut Airport on 7.12.1994. From his body, foreign currencies worth 1.2 Crores of Indian Rupees were recovered. On questioning him and on further investigation, it was revealed that over and above Mujeeb Rahman, eight other carriers were engaged by Mr. Saide for smuggling foreign currencies out of India. Detenu is one such carrier engaged by Saide. It is not known whether Saide has been apprehended by the Customs authorities. But, they could get at the carriers and against them, orders of detention have been issued. Under such circumstances, the delay of four months cannot be considered to be inordinate or fatal to the order of detention. So, the first contention raised by the Id. Counsel cannot be accepted. We overrule the same.
5. The detenu filed Exhibit P4 representation against the detention on 23.8.1995. The representation, addressed to all authorities were entrusted with the Superintendent of Central Prison, where he is kept under detention. The Superintendent of Central Prison forwarded the copies to the detaining authority and the Central Government. Detaining authority passed final order rejecting the representation by Exhibit P5 dated 29.8.1995. Central Government disposed of the representation addressed to it by Exhibit P6 dated 21.9.1995. The order issued by the Central Government was not within a reasonable time, according to counsel, there was inordinate unexplained delay in the disposal by the Central Government and so the detenu is entitled to be released. This argument, we are afraid, is also to be rejected. A detailed counter affidavit has been filed on behalf of the Union of India. It is averred therein that representation sent by the Superintendent of Central Prison reached the COFEPOSA Unit of the Ministry of Finance on 31.8.1995. They called for the comments from the sponsoring authority on 4.9.1995. The sponsoring authority furnished the parawise comments by letter dated 15.9.1995, which reached the COFEPOSA Unit on 19.9.1995 and after processing the entire material, final order was passed on 21.9.1995. According to the Id. Counsel, the delay between 23.8.1995 and 31.8.1995 and that between 4.9.1995 and 15.9.1995 have not been properly explained. The delay between 23.8.1995 and 31.8.1995 is on account of the delay caused by the Postal authorities. The representation dated 23.8.1995 received by the Superintendent of Central Prison was sent to the COFEPOSA Unit of the Ministry of Finance, New Delhi and that letter reached the Unit on 31.8.1995. The seven days taken for the letter to reach the COFEPOSA Unit in Delhi can be only of the postal delay. It cannot be considered as inordinate or unexplained. The second spell of delay highlighted by the Id. Counsel is that between 4.9.1995 to 15.9.1995. On 4.9.1995, the COFEPOSA Unit called for the remarks of the sponsoring authority. Sponsoring authority's reply was received on 15.9.1995. In between these two dates, there were two holidays. Excluding the holidays the delay is hardly nine days. On the facts and circumstances of this case, since sponsoring authority had to furnish parawise remarks, the delay cannot be considered to be unexplained.
6. In the instant case, the Central Government is not the detaining authority. The detaining authority was the State Government. The State Government disposed of the detenu's representation on 29.8.1995. There was no delay whatsoever in disposing of that representation. In such a situation, though the Central Government is also obliged to dispose of representation as early as possible, such a delay should not be subject to a rigorous scrutiny as is done in the case of a delay caused by the appropriate Government (vide Abdul Salam v. Union of India ). In these circumstances we are not inclined to interfere with the order of detention.
7. The last ground made mention of by the Id. Counsel representing the petitioner for attacking the order of detention is suppression of relevant documents by the sponsoring authority in not placing the same before the detaining authority. That allegation is contained in ground '0' of the original petition. In ground '0', it is stated that copies of mahazar concerning the search of 18 houses referred to in the 'Grounds', complaint filed by the Superintendent of Customs about the threats being hurled by one Razak, copy of the Show Cause Notice in the adjudication proceedings issued to the detenu, petition stated to have been filed by one Sathyan, owner of a car which was released, statement alleged to have been given by one Kesavankutty, of Manjeri Telephones, statement given by Smt. Radha, wife of late Somasundaran, and copies of summons issued to one Alavi and Ibrahimkutty were not placed before the detaining authority and so the sponsoring authority suppressed relevant documents from the detaining authority. In answer to this ground, the detaining authority gave the reply in paragraph 16 of the counter affidavit. The stand taken in the counter affidavit is that all relevant documents which were necessary for the detaining authority to form his subjective satisfaction under the COFEPOSA Act were placed before that authority and the detaining authority formed that opinion on those materials which were thus placed and on no other material. Since the documents made mention of by the Petitioner in ground '0' of the original petition were not considered by the detaining authority while issuing the order of detention, we are of the view that the order of detention is not vitiated by any legal infirmity.
In view of what has been stated above, we find no merit in this original petition. It is accordingly dismissed.