IN THE HIGH COURT OF KERALA
T.B. Radhakrishnan, Babu Mathew P. Joseph, JJ.
Asifa Veera Poyil - Appellant
Vs.
Union of India and Others - Respondents
W.P. (Crl.) No. 468 of 2014
Decided On : 17-11-2014
T.B. Radhakrishnan, J.
1. This writ petition is filed seeking a writ in the nature of certiorari to quash detention order and grounds of detention under Sections 3(1)(i) and 3(1)(iii) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, for short, "COFEPOSA Act", in re the petitioner. The petitioner, a female, stated to be around 18 years of age, was intercepted at the Nedumbasseri Airport along with another female Arifa and her husband and their child on the ground that there was illegal import of gold into India effectively concealing such materials. Later, the departments picked up another person from the International Airport in New Delhi, who is stated to be the kingpin of the transaction of smuggling.
2. Customs Department initiated proceedings by registering the matter on an information following which the petitioner and others were arrested immediately following their interception. The petitioner was granted bail with stringent condition in that case. In the meanwhile, Central Bureau of Investigation, for short, 'CBI', has registered a separate case invoking Sections 120(b) and 420 IPC and different provisions of the Prevention of Corruption Act, for short, 'PC Act', and enlisted some of the customs officials as accused persons along with the aforenoted persons, including the petitioner. In those proceedings also, the petitioner stands with bail having been granted by the appropriate Court.
3. The impugned order of detention was passed on 13/11/2013 and was executed on 23/11/2013. The period of detention stands extended and is now due to expire on 22/11/2014.
4. At the outset, we may notice that the petitioner delivered a full term baby on 04/03/2014 at the Women and Children's Hospital, Thiruvananthapuram. The health condition of the baby is reported to be good and the mother and the baby were always under proper supervision through the monitoring process of the said hospital as is disclosed by the materials on record.
5. The detaining authority took note of the different materials, including the statement stated to be recorded from the petitioner under Section 108 of the Customs Act. Similar statements of the other persons, who were also detained on interception, were also taken into consideration. The petitioner had not retracted her such statement at any time before she made representations in response to the order of detention. We just mention this to proceed with the facts to note that there were retractions by others, as stated. We may hasten to add that these observations in this judgment will not stand in the way of the petitioner or the other persons as well as the department in any proceedings under any Statute.
6. The detaining authority has further taken into consideration the different bail applications and the fact that the CBI has registered a case as noted above. It also took cognizance of the fact that the disclosures made in the statements under Section 108 of the Customs Act showed that prior to 19/09/2013, the date of interception of the petitioner, she was involved in at least three previous prejudicial activities of smuggling after she attained the age of majority on 24/04/2013. These are materials available in the statement stated to have been recorded from the petitioner under Section 108 of the Customs Act.
7. The learned counsel for the petitioner argued firstly that all the sheets and particulars of the materials relied on in the detention order ought to have been served, however that, some of those materials which have been enumerated by the petitioner were not served at all. The more important plea is that what was served did not contain Malayalam version of some of the portions of some of the documents. According to the learned counsel for the petitioner, this had incapacitated the petitioner from making an effective representation which is her constitutional eligibility in terms of Article 22(1) of the Constitution of India. We have looked into the ent
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