WA No. 1906 of 2008 · Kerala High Court

BY ADV. SRI.GEORGE JACOB (JOSE) RESPONDENTS: RESPONDENTS IN O.P. ---------------------------------------------------------

THE SECRETARY TO GOVERNMENT, HOME (SSA) DEPARTMENT, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

THE COLLECTOR OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD COCHIN-682018.

STATE OF KERALA REPRESENTED BY THE HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM.

UNION OF INDIA REPRESENTED BY SECRETARY TO HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI. BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA ASSISTANT SOLICITOR GENERAL SRI.P.PARAMESWARAN NAIR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.1906 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of September 2008 JUDGMENT A.K.BASHEER, J. Is the order issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act') against the appellant liable to be quashed on the ground of delay in execution of the same?

2. The above question was answered in the negative by the learned Single Judge relying on the decision of the Apex Court in Union of India V. Vidya Bagaria [(2004) 5 SCC 577]. The said order is impugned in this Writ Appeal.

3. It is on record that the appellant was intercepted at the Thiruvananthapuram International Airport with 750 gms. of gold biscuits in his possession on January 28, 1990. He was prosecuted before the Economic Offences Court, Ernakulam. It is also beyond controversy that the trial court found the appellant guilty and he was, accordingly, convicted and sentenced. The said order of conviction was confirmed in appeal too. It appears that the order passed by the appellate court is pending consideration before this Court in a Criminal Revision Petition. Anyhow, we are not concerned with the above aspects of the case. W.A.No.1906 OF 2008 :: 2 ::

4. It is the case of the appellant that during the pendency of the criminal and Adjudication proceedings against him, the Department had issued an order under Section 3(1) of the COFEPOSA Act in the year 1990 without any valid reason.

In 1999, the present Writ Petition was filed by the appellant, praying for issue of a writ of certiorari to quash the said order of detention. It may at once be noticed that the appellant had not produced the above order in the court. Anyhow, it was contended by him that there was nothing on record to show that he was habitually involved in smuggling activities and, therefore, such an order ought not to have been passed. It was also contended by him that the delay in execution was sufficient enough to quash the said order.

The learned Judge, relying on the decision of the Apex Court cited supra, held that the above contention is totally untenable. The learned Judge had referred to five parameters indicated in the apex court judgment. As rightly noticed by the learned Judge, the appellant did not have a case that the impugned order was not passed under the Act or that it was being executed against a wrong person. Further the appellant did not have a case that the order was passed by an authority which was not authorised or empowered to do so. We have carefully perused the materials available on record. As mentioned earlier, the order under Section 3(1) of the Act was passed in the year 1990. The W.A.No.1906 OF 2008 :: 3 :: appellant has successfully evaded his arrest and service of the order on him till this date. On that sole ground, we are satisfied that the learned Judge was justified in declining to grant any relief to the appellant. The writ appeal fails and it is accordingly dismissed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE