Kerala High Court
K.M. Abdul Hameed, S/O. Mohamed Kunji vs Union Of India (Uoi), Represented By The ... on 19 December, 2002
Author: R. Basant
Bench: R. Basant
JUDGMENT Basant, J.
1. As the questions are identical, these Original Petitions can be disposed of by a common judgment. The reasons for the decision rendered by us on 19.12.2002 are given in this common judgment.
2. The petitioner in O.P.35316 of 2002 is the wife of Panalam Abdul Khader Basheer, hereinafter referred to as the detenu. On 6.6.2002 when the said detenu arrived from Dubai on the flight at 9.30 a.m. at the International Airport at Trivandrum he was intercepted at the exit gate by the Superintendent, Air Intelligence Unit, Trivandrum. He was found to carry unauthorisedly carrying 312 mobile phones, 312 batteries, 11 kgs of saffron etc. valued totally at about Rs. 21 lakhs. These articles were seized. The statement of the said detenu was recorded under Section 108 of the Customs Act. He was arrested at 7 A.M. on 7.6.2002 and was produced before the learned Chief Judicial Magistrate, Trivandrum. He was remanded to custody. the bail application filed by him was rejected by the learned Magistrate. While he was in custody the Government of Kerala passed the order at Ext.P1 under Section 3 of the COFEPOSA Act and directed his detention. The grounds of detention and the list of documents relied on are produced as Exts. P1 and P3. Additional documents were furnished to the detenu alongwith Ext.P4. Ext.P5 is one of the documents so furnished. The detenu submitted a representation dt. 30.7.2002 against his detention. A copy is at Ext.P6. It was disposed of vide order at Ext.P7 by the Government of Kerala. His representation to the Government of India was rejected by order dt. 21.8.2002. The copy has been produced as Ext. P8. The COFEPOSA Advisory Board opined that the detention was justified. The Government after fresh consideration has issued the order at Ext.P9. The petitioner is the wife of the detenu. She assails the detention of the detenu vide order at Ext. P1.
3. In O.P.35317 of 2002 the petitioner is the brother-in-law of Muhammed Kunhi Olayathadukkam (hereinafter referred to as the detenu). On 16.6.2002 at 8 a.m. the detenu was intercepted by the Superintendent, Air Intelligence Unit, Trivandrum near the exit gate of Trivandrum Air Port. He was unauthorisedly carrying without declaration, 100 mobile phones, 60 mobile phone catalogues, 40 kgs of saffron etc. totally valued at about Rs. 24 lakhs in the local market. These were seized. The statement of the detenu under Section 108 of the Customs Act was recorded. He was arrested at 7 p.m. on 16.6.2002. He was produced before the learned Chief Judicial Magistrate. He was remanded to custody. His application for bail was rejected by the learned Chief Judicial Magistrate.
4. While the detenu was continuing in custody the Government of Kerala vide order dt. 16.7.2002 passed under Section 3 of the COFEPOSA Act directed his preventive detention. Exts. P2 and P3 are the grounds of detention and list of documents appended to Ext.P1. The detenu retracted his confession by letter dt.18.6.2002. Additional documents were furnished to the detenu vide letter at Ext.P4. The petitioner's representation dt.2.8.2002 against the detention was dismissed by the Government of Kerala as per Ext.P5 order dt.14.8.2002. His representation to the Government of India was rejected vide order dt.21.8.2002 at Ext.P6. The COFEPOSA Advisory Board after considering the detenu's representation opined that sufficient cause for the continued detention existed. By tahe order dated 4.10.2002 at Ext.P7 the Government of Kerala accepted the opinion of the COFEPOSA Advisory Board and rejected the representation of the detenu.
5. Both detenus are detained for a period of one year.
6. The learned counsel for the petitioners contends that the detention of the detenus is illegal, invalid, null and void. First of all it is contended that the Principal Secretary, Government of Kerala, Home Department is not an officer specifically empowered under Section 3 of the COFEPOSA Act. It is urged that the officer having not been specifically authorised, the impugned orders of detention passed under Section 3 are incompetent and without jurisdiction.
7. We find absolutely no merit in this contention. Under Section 3 the authorities competent to pass the detention order are: (1) The Central Government, (2) the State Government, (3) any officer of the Central Government not below the rank of a Joint Secretary to the Central Government specifically empowered for the purpose of this section by the Central Government, (4) any officer of the State Government not below the rank of a Secretary to that Government specifically empowered for the purpose of this Section by the State Government.
8. Specific empowerment is therefore to be insisted when an officer of the Central or State Government passes the order of detention and not when the Central or State Government itself passes the order. In the instant case the orders of detention are passed by the State Government and not by any officer of the State Government. It is not necessary to look for any specific empowerment of any officer as insisted by Section 3. In these cases the authority who directed detention is the State Government. We have gone though the writ petitions. There is no specific contention that the order of detention is not passed by the State Government in accordance with its rules of procedure. In identical counter affidavits filed in both cases the Principal Secretary of the Government has made it clear that the order was passed by the State Government in exercise of its powers under Section 3. In exercise of the power conferred by virtue of Article 166 of the Constitution the rules of business have been framed for conduct of the business of the Government effectively. It is in perfect compliance with the said rules that the Government has taken the decision to detain the detenus under Section 3 of the COFEPOSA Act. Significantly there is no contention that the State Government had not taken the decision or that the State Government had taken the decision contrary to any statutory provision or rules. The affidavit on behalf of the respondent shows that the State Government had taken the decision in accordance with the rules of business regulating the functioning of the Government in this regard. In these circumstances the objection that the Principal Secretary to Government, Home Department is not specifically empowered under Section 3 has got to fail.
9. It is next contended that there is absolutely nothing to show that the State Government was cognisant of the fact that the detenus were under detention in judicial custody when the impugned orders of detention were passed. Reliance was placed on the decision reported in D.S. Chelawat v. Union of India (1990 SCC (Crl.) 249) as also the earlier decision in Vijayakumar v. State of J&K and Ors. (AIR 1982 SC 1023). We find no merit in this contention at all. A careful reading of the order of detention as also the documents produced clearly and unambiguously show that the State Government while passing the orders of detention was aware and was cognisant of the fact that the detenus were detained in custody on the day when such orders of detention were passed and that inspite of the said fact the State Government was of opinion that such detention of the detenus was necessary.
10. Faced with this situation the learned counsel for the petitioners then contends that there was no sufficient material available for the State Government to entertain the objective satisfaction that detention of the detenus was necessary to prevent them from acting in any manner prejudicial to the conservation or augumentation of the foreign exchange or with a view to preventing them from smuggling goods or engaging in transportation or concealing or abetting concealed goods.
11. We have very anxiously considered all the relevant inputs. The totality of facts and circumstances do not in any way suggest to us that the satisfaction entertained by the State Government while directing preventive detention under Section 3 is in any way vitiated. We find no merit in the attempt to retract from the confession statements given by the detenus under Section 108 of the Customs Act. We also find from the date available that sufficient materials were available to induce the requisite satisfaction in the mind of the detaining authority. The nature of the seizure made, the quantum of articles carried, the manner in which these were carried, the antecedents of the detenus do all eminently suggest that the requisite satisfaction was entertained on sufficient materials by the detaining authority.
12. We are in the circumstances, of the opinion that the impugned orders of detention do not merit any interference. Consequently the Original Petitions are dismissed.
Petitioner's Exts.
Ext.P1-true copy of the detention order No. 32240/SSA4/ 2002/Home dt. 16.7.2002 issued by the 2nd respondent.
Ext.P2-true copy of the Grounds of detention of Sri.Mohammed Kunhi Olayathadukkam issued by the second respondent Ext.P3-true copy of the list of documents relied upon by the second respondent Ext.P4-true copy of the covering letter No.32240/SSA4/ 2002/Home dated 6.9.2002 issued by the second respondent Ext.P5-true copy of the communication dt.14.8.2002 of the second respondent rejecting the representation of detenu Ext.P6-true copy of the communication dt.21.8.2002 of the first respondent rejecting the representation of detenu Ext.P7-true copy of the order of confirmation of the detention dt.4.10.2002 issued by the second respondent