The detention under COFEPOSA Act and Customs Act, 1962 was found to be valid based on the noticed judicial custody of the detenu and the unsubstantiated allegations of use of force.

Jawahar Lal Gupta, C.J.

The petitioner has approached this Court with the prayer that a writ of Habeas Corpus be issued directing the respondents to produce her son Sehu Abdul Kader Bairose, who has been detained in the Central Prison, Poojappura as COFEPOSA detenu. She also prays that the order of detention, a copy of which has been produced as Ext. P1, be quashed.

2. A counter-affidavit has been filed on behalf of the respondents.

3. Counsel for the parties have been heard. On behalf of the petitioner, Mr.P.K.Mani has contended that the detention order is vitiated as the competent authority had failed to notice that the detenu was already in custody and that no order of detention was necessary. Relying upon the decision of Their Lordships of the Supreme Court in Vijayakumar v. State of J & K and others. AIR 1982 S.C. 1023, learned counsel submits that the detaining authority did not even notice the fact that the detenu was in custody. According to the counsel, there is not “even a whisper” in the impugned order regarding the fact that the detenu was in judicial custody. Thus, he submits that the order is vitiated.

4. A copy of the order of detention has been produced as Ext. P1. The reasons for detention were also communicated to the detenu. These are at Ext. P2. A perusal of the two documents shows that on April 18, 2002, the Superintendent of Customs along with the Officers of the Air Intelligence Unit, had intercepted the detenu at the Trivandrum Airport. He was in possession of an Indian Passport dated March 15, 1999 issued at Thiruchirappally. He had arrived from Male by the Indian Arilines Flight No.IC 964 at about 3.40 P.M. He was carrying three pieces of checked in baggage besides three hand bags. One of these was a black coloured bag with the marking “RED STONE.” On X-ray examination of the baggage, a dark band was noticed on the X-ray monitor. The baggage was examined in the presence of independent witnesses. Twenty gold biscuits besides other undeclared goods were recovered. It was further found that all the 20 gold biscuits were of 24 Ct. purity. The total weight of the gold biscuits was found to be 2332 Gms. The value was fixed at Rs.11,77,660/-.

5. The detenu admitted that he had not declared the gold biscuits. He did not possess any valid documents to prove legal importation of gold and that he had attempted to bring gold without paying customs duty. The gold biscuits were thus seized for further action under the Customs Act, 1962. Even the other goods were seized. The statement of the detenu was recorded.

6. On a consideration of the matter, the authority found that Sehu Abdul Kader Bairose had attempted to smuggle the 20 gold biscuits into the Country deliberately by concealing and keeping the goods in his hand baggage. He had done so despite knowing that it was an offence under the Customs Act, 1962. It also noticed the fact that the detenu had made 12 trips to Male. On a cumulative consideration of the matter, it decided to detain the petitioner’s son under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

7. Mr.Mani contends that the fact that the detenu was already in judicial custody was not noticed. Is it so?

8. A perusal of Ext. P2 shows that in paragraph 8, it has been specifically noticed by the authority that Sri. Bairose was arrested on April 19,2002. He was produced before the Chief Judicial Magistrate,Trivandrum on the same day. He had been remanded to judicial custody till May 3, 2002. On that day, his remand was further extended till May 16, 2002. Thus, the contention that there was not even a whisper in the order about the detenu being in judicial custody is wholly unfounded. In this situation, the petitioner can derive no advantage from the decision of Their Lordships of the Supreme Court in Vijayakumar’s case (supra).

9. Faced with the situation, Mr.Mani has contended that the detenu had retracted from his confessional statement. H