A.T.AYISHA v. STATE OF KERALA

WPCRL.3/2008APPENDIXPETITIONER'S EXTS.EXT.P1 - TRUE COPY OF THE ORDER NO.48037/SSA4/2007/HOME DATED 16.07.2007.EXT.P2 - TRUE COPY OF THE GROUNDS OF DETETNION ON WHICH THE ORDER IS PASSED.EXT.P3 - TRUE COPY OF THE STATEMENT ALLEGEDLY GIVEN BY THE DETENU.EXT.P4 - TRUE COPY OF THE REPRESENTATION DATED 08.08.2007 SUBMITTED BY THEPETITIONER BEFORE THE 1ST RESPONDENT.EXT.P5 - TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 21.08.2007.EXT.P6 - TRUE COPY OF THE ORDER OF CONFIRMATION PASSED BY THE 1STRESPONDENT. EXT.P7 - BAIL APPLICATION DATED 12.07.2007 SUBMITTED ON BEHALF OF THE DETENUBEFORE THE COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMICOFFENCES) ERNAKULAM.RESPONDENTS' EXTS.EXT.R1(a) – A TRUE COPY OF THE OPINION OF THE ADVISORY BOARD.EXT.R1(b) – A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE DETENU ON16.07.07.EXT.R1(c) – A TRUE COPY OF THE REQUEST OF THE DETENU TO THE JAILOR TO SEND ALLTHE DOCUMENTS TO HIS ADVOCATE.EXT.R1(d) – A TRUE COPY OF THE MAHAZAR DATED 19.6.2007./TRUE COPY/ K.BALAKRISHNAN NAIR &P.N.RAVINDRAN, JJ.-----------------------------------------W.P.(Crl) NO. 3 OF 2008-S-----------------------------------------Dated 11th April, 2008.JUDGMENTBalakrishnan Nair, J.This is a writ petition filed under Article 226 of the Constitution ofIndia, by the mother of Sri.A.T.Mohammed, a person detained under theConservation of Foreign Exchange and Prevention of Smuggling ActivitiesAct, 1974 (COFEPOSA Act), praying to issue a writ of habeas corpus forthe release of the said detenu.2. The brief facts of the case, as stated by the petitioner are thefollowing: While the detenu was travelling in a Wagon R car bearingregistration No.KL-13M 2675, the same was intercepted by the SeniorIntelligence Officer (SIO), Directorate of Revenue Intelligence (DRI) andparty near Cheruvannur, Kozhikode at 1 p.m on 19.6.2007. In the car, therewas a cardboard carton . The detenu informed the officer that it was handedover to him by one Sri.A.M.Raheem, who had come from Dubai. When thesaid Raheem was contacted, he immediately admitted the handing over of WP(Crl) 3/082the cardboard carton to the detenu. The said Mr.Raheem came to the officeof the Directorate of Revenue Intelligence with a black trolley bag, whichwas the baggage brought by him, apart from the cardboard carton. Thecarton was opened and examined. Apart from other items like soaps, glasstumblers etc., it contained two biscuit tins. When the tins were examined,Indian currency notes of 1000 and 500 denominations worth Rs.15 lakhswere found concealed in them. The Bank officials, who were summoned toexamine the notes, stated that they were fake Indian currency notes.Mr.Raheem divulged that the cardboard carton containing the biscuit tins, inwhich the fake Indian currency notes were concealed, was handed over tohim by one person at Dubai. He had not declared before the Customsofficials any goods for which duty is payable and he came out through thegreen channel at Karipur Airport. The carton was to be handed over to aperson at Calicut. He carried the same, as he was promised someremuneration. As per the instructions from Dubai, he handed over thecarton to the detenu, when he came to his house. The detenu was arrestedon 20.6.2007 and was produced before the Judicial First Class Magistrate'sCourt, Kozhikode, which remanded him to judicial custody. While so, hewas served with Ext.P1 order passed by the 1st respondent, detaining himunder Section 3(1)(i) of the COFEPOSA Act for a period of one year. A WP(Crl) 3/083copy of the grounds of detention was served on him, which is produced asExt.P2. A copy of the statement allegedly given by the detenu, furnishedalong with Ext.P2, is Ext.P3. The detenu filed Ext.P4 representation beforethe 1st respondent on 8.8.2007 against Ext.P1 detention order. In the saidrepresentation, the detenu had requested the 1st respondent to forward acopy of Ext.P4 to the 2nd respondent. Moreover, the 3rd respondent, who isthe Superintendent of the Central Prison, Thiruvananthapuram where he wasdetained, was also requested to forward a copy of Ext.P4 to the 2ndrespondent. The 1st respondent, without adverting to the contentions of thedetenu, rejected his representation by Ext.P5 communication dated21.8.2007. Thereafter, the 1st respondent confirmed the detention order byExt.P6 order dated 29.9.2007. This writ petition is filed, challengingExts.P1 and P6 and also praying for appropriate orders for the release of thedetenu.3. Though several grounds were raised in the writ petition, thelearned counsel for the petitioner only pressed ground Nos.5, 6 and 8 raisedin the writ petition. The first ground (Ground No.5 in the writ petition) wasthat the 1st respondent did not forward a copy of Ext.P4 to the 2ndrespondent Central Government, which has got power to revoke the order ofdetention. Though, there was a specific request made in Ext.P4 for sending WP(Crl) 3/084the copy of the same to the 2nd respondent, the same was not forwarded.The said omission will vitiate the detention order. In support of the saidsubmission, the petitioner relied on the decisions of the Apex Court inRattan Singh v. State of Punjab [AIR 1982 SC 1] and Haji Mohd.Akhlaq v. District Magistrate [1988 SCC (Cri) 886]. The second ground(Ground No.6 in the writ petition) is that most of the documents furnishedto the detenu were in English. He cannot read or write English. Therefore,he was disabled from making the statutory representation effectively. Thethird ground taken(Ground No.8 in the writ petition) is concerning the non-application of mind by the detaining authority on the contents of the bailapplications filed by him before the Additional Chief Judicial Magistrate'sCourt (Economic Offences), Ernakulam. He had filed a bail application on4.7.2007 and thereafter, another application on 12.7.2007. In those bailapplications, he had retracted from the statement allegedly given by himunder Section 108 of the Customs Act, a copy of which is produced asExt.P3. In the said bail applications, the detenu had specifically stated thatExt.P3 was recorded under threat and coercion. But the grounds ofdetention would show that the detaining authority proceeded on the footingthat the detenu did not retract from Ext.P3. The same will show total non- WP(Crl) 3/085application of mind and therefore, it vitiates the impugned orders, it issubmitted.4. The 1st respondent has filed a counter affidavit, denying all theallegations of the petitioner. It is submitted that the impugned orders werepassed strictly in accordance with the provisions of the COFEPOSA Act,1974, as also Article 22 of the Constitution of India. It is pointed out thatthe Screening Committee met on 12.7.2007 and gave an opinion that unlessthe detenu is detained under the COFEPOSA Act, 1974, he would repeat theoffence of smuggling. The detaining authority, after considering the saidrecommendation and also all relevant materials independently, passed thedetention order. The Advisory Board constituted under the COFEPOSAAct, consisting of three Judges of this Court, after hearing the detenu, gavean opinion as per Ext.R1(a) that sufficient grounds were made out for thecontinued detention of the detenu. The allegation that the statement underSection 108 of the Customs Act given by the detenu on 19.6.2007 was madeunder threat and coercion, was emphatically denied. Other contentions inthe writ petition were also specifically dealt with and denied by the 1strespondent. 5. The 2nd respondent Union of India has filed a counter affidavit,dealing with the averments in the writ petition, so far as they concern the WP(Crl) 3/086said respondent. The petitioner has filed a reply statement and along withthat, she has produced Ext.P7, which is the bail application filed by thedetenu before the Additional Chief Judicial Magistrate's Court (EconomicOffences), Ernakulam on 12.7.2007. 6. We heard the learned counsel Mr.Sunny Mathew for the petitionerand Mr.P.A.Salim, learned Government Pleader for respondents 1 and 3.The first ground relied on by the petitioner to attack the detention order isthat the copy of the detenu's representation Ext.P4 was not forwarded to theCentral Government. Ext.P4 is a representation addressed to the KeralaGovernment. There is no necessity to forward photo copies of the same toother authorities. If any representation addressed to the 2nd respondent wasforwarded to the 1st respondent and if the 1st respondent did not forward thesame, the grievance raised by the petitioner is genuine. The detenu does nothave any such case. Further, no representation addressed to the 2ndrespondent was entrusted to the 3rd respondent for forwarding the same tothe 2nd respondent. In view of the above facts, the contention raised by thepetitioner cannot be accepted. The decision in Rattan Singh v. State ofPunjab [AIR 1982 SC 1] concerns the omission of the State Government toforward a representation received by it to the Central Government. The WP(Crl) 3/087detenu's counsel drafted two representations and sent the same to theSuperintendent of Central Jail, Amritsar for obtaining the signature of thedetenu and for forwarding the same to the State Government and the CentralGovernment. The Superintendent of the Jail, after obtaining the signaturesof the detenu, sent both the representations to the State Government. TheState Government considered the representation addressed to it and rejectedit. But, it failed to forward the representation meant for the CentralGovernment. The Apex Court in the above facts of the case, held that thedetention is invalid for the failure of the State Government to forward therepresentation addressed to the Central Government. The said decisioncannot have any application to the facts of this case, where there was norepresentation given by the detenu or his counsel addressed to the CentralGovernment. Similar is the case of the petitioner in Haji Mohd. Akhlaqv. District Magistrate [1988 SCC (Cri) 886]. From the facts of the abovecase, it would appear that the detenu marked a copy of the representationsubmitted by him to the State Government, to the Central Government also.He also requested the State Government to forward the same to the CentralGovernment. Since the State Government failed to forward it in time, theApex Court interfered with the detention. WP(Crl) 3/0887. In the present case, in para 3 of the counter affidavit, it isspecifically stated by the 1st respondent as follows:“No representation addressed to the second respondent wasreceived by this respondent or the third respondent.”The petitioner has not filed any reply affidavit, denying the above averment.But, the learned counsel for the petitioner submitted that the request made atthe bottom of Ext.P4 to send a copy of the same to the 2nd respondent will besufficient. We are of the view that unless there is a representation addressedto the Central Government or a copy of the representation marked to theCentral Government, the State Government cannot be found fault with forfailing to send a copy of the representation addressed to the StateGovernment, to the Central Government. So, the decisions relied on by thepetitioner are distinguishable on facts. 8. Further, in para 20 of Ext.P2 it was specifically stated as follows:“You have the right to make representation against yourdetention to the Detaining Authority (Govt. of Kerala), theGovernment of India as well as the Advisory Board. If youwish to avail your right of making representation, you maysubmit your representation through the Jail authorities, whereyou are detained in the manner indicated below:a) Representation meant for the detaining authority(Govt. of Kerala) should be addressed to the PrincipalSecretary to the Govt. of Kerala, Home Department,Government Secretariat, Trivandrum. WP(Crl) 3/089b) Representation meant for the Government of Indiashould be addressed to the Secretary to the Government ofIndia, Ministry of Finance, Department of Revenue, 6th Flor, 'B'Wing, Janpath Bhawan, Janpath, New Delhi – 110 001.c) Representation meant for the Advisory Board shouldbe addressed to the Chairman, COFEPOSA Advisory Board,High Court of Kerala, Ernakulam. You are further informed thatyou shall be heard by the advisory board in due course if theBoard considers it essential to do so or if you so desire.”The detenu has not sent any representation meant for the CentralGovernment to the State Government, in accordance with the aboveinstruction. So, the first ground urged by the petitioner fails.9. The second contention is regarding furnishing of copies of some ofthe documents along with the grounds of detention in English. The detenuhas admitted in Ext.P3 statement that he knows English and he studied up toPre-degree. Therefore, it can be reasonably presumed that he has workingknowledge of English. The petitioner submits, the detenu has retractedExt.P3 statement, as evident from the bail applications submitted by him.We perused the bail application dated 12.7.2007, a copy of which isproduced as Ext.P7. In the said bail application, the detenu has not statedanything about his knowledge of English or that the statement regarding theknowledge of English, made in Ext.P3, is incorrect. In the bail application,he only disputes the receipt of the paper carton by him from the residence of WP(Crl) 3/0810Mr.Raheem. When the statement was recorded, the SIO of the DRI cannothave any premonition that the detenu is going to be detained and he may beserved with some documents in English. So, it can be presumed that thestatement regarding knowledge of English was correctly recorded. So, weare of the view that the retraction made by the detenu will not, in any way,affect the veracity of the statement made by him that he can understandEnglish. Therefore, the second ground raised against the detention isuntenable in law.10. The third point deals with the non-application of mind from thepart of the detaining authority, made with reference to the grounds ofdetention. Special reference is made to paragraphs 10 and 14 of Ext.P2.The above paras read as follows:“10. Bail application was filed on your behalf before theAdditional Chief Judicial Magistrate, Court of EconomicOffences, Ernakulam. The bail application was rejected by acommon order dated 04.07.2007 in CMP Nos.2876/07, 2912/07and 2942/07. Another bail application was filed on your behalfon 12.07.2007 before the Additional Chief Judicial Magistrate,Court of Economic Offences, Ernakulam and I have consideredthe same.Xxxxxxxxxxxxxxxxxxxx14. You have not retracted the statement you gave on19.06.07 before the SIO, DRI, Calicut under Sec.108 of theCustoms Act. You have not made any complaint to the Hon'bleJudicial Magistrate (First Class), Kozhikode when you were WP(Crl) 3/0811produced before him on 20.06.07 after your arrest. Neitherhave you made any representation/complaint regarding thestatement given by you before the DRI authorities till date. Thecontents of the said statement are corroborated by otherdocumentary evidences like Mahazar, Customs Gate pass,Flight manifest, in addition to the statements of Sri.RaheemA.M. And Sri.Thafsal under Sec.108 of the Customs Act.”According to the petitioner, if the detaining authority had gone through thebail applications, it would not have made a statement that the detenu has notretracted the statement given by him on 19.06.07. A close reading of para14 quoted above would show that what was meant by the detainingauthority is that when the detenu was produced before the court on20.06.07, he did not make any retraction of the statement. He has not filedany formal petition before the DRI authorities retracting his statement.Those statements in para 14 are correct. The retraction was made onlysubsequently, in the bail applications filed on 4.7.2007 and 12.7.2007. So,the contention of the petitioner regarding non-application of mind, cannotbe accepted. No other point was urged.11. We notice that the law of preventive detention is highly technical.Breach of any procedural rule or infraction of any right, though they maynot cause any prejudice, will be sufficient to set aside the detention. Ourliberal constitution protects not only those who respect its commands, butalso those who design and execute plans to subvert it. But, that does not WP(Crl) 3/0812mean that this Court should put its common sense in cold storage, whiledealing with the contentions of the detenu. We are of the view that none ofthe grounds urged is sufficient to interfere with the detention order or theorder confirming it. In the result, the Writ Petition is dismissed.K.BALAKRISHNAN NAIR, JUDGE.P.N.RAVINDRAN, JUDGE.Nm/