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1994 Supreme(Ker) 210
Judges : SUJATHA V.MANOHAR,T.L.VISWANATHA IYER
Pathumma - Appellant
Versus
Commr.& Secretary to Govt. - Respondent
Case No : O.P.No.11196 of 1993
Decided On : 07/13/1994
Advocates Appeared :
K.A. Jabbar For Petitioner Govt Pleader (Lai George) & K.P.G.Menon For Respondents
The court emphasized that minor errors in administrative orders and the consideration of subsequent events did not vitiate the validity of the detention order under the COFEPOSA Act.
Headnote:
Customs Act - Detention under COFEPOSA Act - S.3(1)(i), S.9(1) - The court upheld the continued detention of the detenu under the COFEPOSA Act, rejecting the petitioner's challenge on various grounds. The court found that the Advisory Board had applied its mind to the question of continued detention, and minor errors in the confirmation order did not vitiate the decision. The court also held that subsequent modifications of the bail order and adjudication proceedings did not affect the validity of the detention order.
Fact of the Case:
The detenu was intercepted at the airport with a large sum of foreign currency concealed in his baggage. He was subsequently detained under the COFEPOSA Act, and the petitioner challenged the continued detention on various grounds.
Finding of the Court:
The court dismissed the petitioner's challenge and upheld the continued detention of the detenu under the COFEPOSA Act.
Issues: The issues included the application of the Advisory Board, errors in the confirmation order, consideration of subsequent modifications of the bail order, and adjudication proceedings in relation to the detention.
Ratio Decidendi: The court found that the Advisory Board had applied its mind to the question of continued detention, minor errors in the confirmation order did not vitiate the decision, and subsequent modifications of the bail order and adjudication proceedings did not affect the validity of the detention order.
Final Decision: The Original Petition was dismissed, and there was no order as to costs.
Sujatha V. Manohar, C.J.
Petitioner is the wife of the detenu. On 6-1-1993, the Superintendent of A.I.R Customs, Trivandrum and his party, while keeping surveillance on the passengers boarding a flight to Dubai, intercepted the detenu who was one of such passenger on suspicion while the detenu was identifying his baggage outside the export baggage hall. On examination of a brown coloured carton, which was part of detenu' s baggage, foreign currencies equivalent to Rs.1.20 crores were found concealed in the carton inside a packet of banana chips. The foreign currencies and travel documents of the detenu were seized on 6-1-1993 under the provisions of the Customs Act. On 7-1-1993, the detenu gave a statement in which he stated, inter alia, that he was employed as a cook in Abu Dabi since 1984. He had to return to India as he received a telephone call informing him that his father was ill. He could not purchase a ticket for his return journey to Abu Dabi since he did not have money. When he was leaving the travel agent's office, one Kunhi Mohammed approached him and offered him a free A.I.R ticket and Rs. 10,000/- if he carried a box given by him to Abu Dabi and handed it over to his agent at Abu Dabi who would identify himself by a code word'555'. Kunhi Mohammed informed him that the box would contain some currencies. The detenu, however, stated that he was not aware mat a huge amount of foreign currency was in the carton and had he known it, he would not have carried the box.
2. The detenu was arrested on 7-1-1993. He was initially remanded to custody by the Chief Judicial Magistrate, Trivandrum. On 14-1-1993, the detenu filed a petition for bail before the Additional Chief Judicial Magistrate, Ernakulam. In his bail application, the detenu has retracted the statement given by him before the Customs Officers on the ground that it was involuntary and false. The Additional Chief Judicial Magistrate, Ernakulam passed an order dated 19-1-1993 granting bail to the detenu on certain conditions which are set out therein. The detenu, however, could not comply with those conditions. He filed an application for variation of the bail order before the Additional Chief Judicial Magistrate, Ernakulam. By his order dated 11-2-1993, the Additional Chief Judicial Magistrate, Ernakulam modified the bail order. The detenu, however, could not comply even with the modified bail order. He filed an application before this Court on 23-2-1993 for further modification of the bail order. The bail order was, therefore, further modified by this Court. The detenu complied with the bail conditions and was released on bail. On 20-4-1993, an order has been passed by the Commissioner and Secretary to the Government of Kerala under S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act') for detention of the detenu. Pursuant to this order, the detenu was arrested on 6-5-1993. He was supplied with the grounds of detention and documents on 7-5-1993.
3. On 29-5-1993, the jail authorities forwarded a representation from the detenu to the Commissioner and Secretary to the Government of Kerala. The same has been considered and rejected on 15-6-1993 by the State Government and on 21-6-199 3 by the central Government.
4. In the meanwhile, on 3-6-1993 a declaration has been made under S.9(1) of the COFEPOSA Act by the central Government.
5. The Advisory Board under the COFEPOSA Act gave its opinion on 7-7-1993 upholding the detention of the detenu. Thereafter, the State Government has confirmed the order of detention for a period of two years as set out in the confirmation order.
6. Petitioner has challenged the continued detention of the detenu on various grounds.
7. The first ground relates to the manner in which the Advisory Board has given its opinion. In the confirmation order dated 14-7-1993, in para.3, it is stated:
"...the Advisory Board in its report read as sixth paper
