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1998 Supreme(Ker) 75
Judges : J.B.KOSHY,O.P.PRADHAN
Mavungal Pathumma - Appellant
Versus
Union Of India And Others - Respondent
Case No : O.P.No.7900 of 1997-S (Habeas Corpus)
Decided On : 02/23/1998
Advocates Appeared :
For the Petitioner: B. Kumar, Sr. Advocate, K. T. Sankaran and Parvathy A. Menon, Advocates. For the Respondent: George C. P. Tharkan, S.C.G.S.C. (for Nos. 1 and 4) and K. Sasikumar, Govt. Pleader (for Nos. 2 and 3).
The subjective satisfaction of the authorities and the adequacy of the material for detention cannot be questioned by the Court. The delay in executing the detention order was explained by the authorities due to the detenu being absconding. The non-consideration of the representation before making the declaration was subsequently considered and rejected, and there was no inordinate delay or non-application of mind while rejecting the representations.
Headnote:
CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES - Detention of Mr. M. Ahammedkutty - S. 3(1) of the Act - subjective satisfaction of the authorities, adequacy of material, and non-interference by the Court - Delay in execution of detention order - explained by the authorities due to the detenu being absconding - Non-consideration of representation before making declaration - representation subsequently considered and rejected - Inordinate delay and non-application of mind while rejecting representations - explained reasonably by the authorities - no interference by the Court
Fact of the Case:
The petitioner, wife of Mr. M. Ahammedkutty, challenged the detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act). The detention was based on the suspicion of smuggling gold and abetting smuggling activities.
Finding of the Court:
The Court found that the subjective satisfaction of the authorities and the adequacy of the material for detention cannot be questioned. The delay in executing the detention order was explained by the authorities due to the detenu being absconding. The non-consideration of the representation before making the declaration was subsequently considered and rejected. The Court found no inordinate delay or non-application of mind while rejecting the representations.
Issues: The issues raised included the justification of the conclusion in the detention order, the delay in executing the detention order, non-consideration of the representation before making the declaration, and inordinate delay and non-application of mind while rejecting representations.
Ratio Decidendi: The Court held that the subjective satisfaction of the authorities and the adequacy of the material for detention cannot be questioned. The delay in executing the detention order was explained by the authorities due to the detenu being absconding. The non-consideration of the representation before making the declaration was subsequently considered and rejected. The Court found no inordinate delay or non-application of mind while rejecting the representations.
Final Decision: The Court dismissed the original petition, finding no ground to interfere with the order of detention or the order of declaration.
KOSHY, J.
Petitioner is the wife of one Mr. M. Ahammedkutty (hereinafter referred to as "the detenu") detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act"). The grounds stated in the detention order is that on 20-11-1994 one P. A. Soopy arrived at Calicut Airport from Sharjah. After he has crossed the green channel for Customs clearance, on examination, a white glazed paper was recovered from him wherein it was written in Malayalam "Give P. A. Soppy twenty immediately." The Customs officials suspected smuggling activities and examined his registered baggage. On questioning, it was stated that the paper was given to him by the detenu in whose room the passenger stayed at Sharjah. Before he started journey the detenu had entrusted him a gas stove for handing over to his brother Beeran and on handing over the same and the slip to Beeran, he will be given Rs. 20,000/-. The registered baggage contained one gas cooking table "Super General SG 003 Gas cooking table, Made in Japan." On examination, it was found that three stands of the stove were made of 24 Ct. pure gold which was coated with silver. Value of the 24 Ct. pure gold with weight of 6537.3 gms. was assessed by the Customs authorities as Rs. 31,11,755/-. A statement was recorded from Shri Soopy under S. 108 of the Customs Act and he was arrested and produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. Thereafter, the Superintendent, Special Customs Preventive Unit searched the residence of Shri Beeran and found 14 gas stoves without stands and an amount of Rs. 1,87,700/-. Statements were recorded from the detenu wherein he admitted that he and his brother were sending gold through carriers. This statement was later retracted. Shri Soopy also admitted that on earlier occasions also, he used to carry gas stoves at the request of the detenu and his brother.
2. On the ground that the detenu and his brother Shri Beeran are financiers and organisers of smuggling activities engaged in bringing gold to the country and on the reasonable apprehension that he may continue to abet his smuggling activities, detention order was issued. On 26-12-1994 the detenu obtained anticipatory bail from this Court. Statements under S. 108 of the Customs Act, were recorded on 26-12-1994, 27-12-1994 and 28-12-1994. These statements were retracted on 29-12-1994. According to him, his brother owns two flour mills in Sharjah and he was also working in the flour mill and the gas stove was carried at the instance of his brother and he has no share in it. Statements were also recorded from Soopy. The detention order is dated 28-3-1995. But, the detention order was executed only when he surrendered before the Police authorities on 17-1-1997. The detenu has sent a representation to Union of India (respondent No. 1) and State of Kerala (respondent No. 2) through the Prison authorities. The representation was rejected by the State of Kerala by communication dated 12-2-1997 (Ext. P10). Central Government rejected it on 28-2-1997 (Ext. P11). A declaration was issued under S. 9(1) of the Act on 13-2-1997 (Ext. P12). Against the declaration also, detenu filed representation addressed to the 2nd respondent and also to the COFEPOSA Advisory Board as Ext. P13.
3. Major grounds urged by the petitioner in this original petition are : (1) The conclusion in the detention order that he had abetted smuggling of gold through Soopy is not justified and there is no statement by the detenu that he had knowledge that the gas stove contained a stand made of gold coated with silver. Acquisition of gold was done only by his brother Beeran and profit will go only to Beeran. He only assisted his brother when he asked for help and detenu did not abet smuggling of gold; (2) Detention order is dated 28-2-1995. But, it was executed only on 17-1-1997. Therefore, there is undue delay; (3) His r
