IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(Crl.).No. 277 of 2008(S) --------------------------- PETITIONER(S): PETITIONER ------------------------- ANWARBASHA, NO.111, 4TH STREET, NETHAJI NAGAR, TONDIARPET, CHENNAI 81, TAMILNADU. BY ADV. SRI.D.PEETHAMBARAN SRI.S.PALANI KUMAR RESPONDENTS/RESPONDENTS: -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HOME (SS-4) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA. 2. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE (COFEPOSA UNIT) DEPARTMENT OF REVENUE, NEW DELHI. 3. THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM, KERALA. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R2 SR. GOVERNMENT PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF DETENTION ORDER NO.36256/SS/A4/08/HOME DTD 28.5.08 PASSED BY R1. EXT.P2 COPY OF GROUNDS OF DETENTION ALONG WITH LIST OF DOCUMENTS AND COVERING LETTER DTD 31.5.08 OF R1. EXT.P3 COPY OF COVERING LETTER DTD 23.7.08 BY THE COUNSEL FOR THE DETENU ADDRESSED TO R3. EXT.P4 COPY OF REPRESENTATION DTD 23.7.08 BY THE DETENU ADDRESSED TO R1 & R2. EXT.P5 COPY OF APPLICATION FOR BAIL FILED AS CRL.M.P.2318/08 BY THE DETENU HEREIN BEFORE THE COURT OF ADDL.CJM (E.O) ERNAKULAM IN OR NO.DRI/TVM/2008 DTD 30.4.08. EXT.P6 COPY OF BAIL ORDER DTD 28.5.08 PASSED BY THE ADDL.CJM (EO) ERNAKULAM IN CRL.MP.2319/08 DTD 28.5.08 IN OR NO.DRI/TVM/4/2008. EXT.P7 COPY OF COVERING LETTER DTD 2.5.08 ALONG WITH PRE DETENTION REPRESENTATION BY THE DETENU TO THE HON'BLE MINISTER FOR LAW, GOVERNMENT OF KERALA. EXT.P8 COPY OF COVERING LETTER DTD 2.5.08 ALONG WITH COMPOUNDING APPLICATION SENT BY THE DETENU EXT.P9 COPY OF POSTAL ACKNOWLEDGMENT CARD DULY SIGNED BY R3 REGARDING RECEIPT OF EXT.P4 REPRESENTATION. /TRUE COPY/ Cl A.K.BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(CRL)No.277 OF 2008-S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2009 JUDGMENT Basheer, J: Ext.P1 order of detention passed by the detaining authority under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA Act”) is impugned by the brother of the detenu in this writ petition filed under Article 226 of the Constitution of India. 2. The grounds for detention as revealed from Ext.P2 may be briefly noticed. 3. Senior intelligence officer attached to the Directorate of Revenue Intelligence, Trivandrum, had arrived at the Trivandrum International Airport on April 20, 2008, on receipt of specific intelligence that a passenger by name Mohammed Kasim Akbar Ali (the detenu) would be arriving by Sri. Lankan Airlines flight UL 161 from Colombo and that he would be carrying considerable quantity of Computer RAMs of foreign origin which he intended to smuggle into India. To make a long story short, the detenu was apprehended with the contraband consisting of 2800 Computer RAMs of various capacities worth Rs.30,15,000/=. The detenu admitted in his statement that he had brought these computer RAMs by illegal means without declaring the same at the customs' 2 W.P.(Crl)No.277/08 counter. 4. As we have indicated earlier, we do not deem it necessary to refer to the other procedural formalities which were gone through the authorities concerned while finalising the seizure, arrest etc since in our view, the writ petition can be disposed of on a short ground. 5. It is contended by learned counsel for the petitioner that the order of detention is illegal and vitiated for reasons more than one. However, it is primarily contended by him that the detenu is entitled to be released from custody forthwith since the order is vitiated in as much as the representation submitted by him through the jail authorities was not considered and disposed of by the detaining authority as mandated under Article 22 of the Constitution of India. Learned counsel has also raised various other contentions. But, having heard learned counsel for the petitioner and learned Senior Government Pleader, we are of the view that the fate of this writ petition will depend on the sustainability or otherwise of the primary contention referred to above. 6. It is the specific case of the petitioner that the detenu had submitted Ext.P4 representation dated July 23, 2008 before the detaining authority. But, the said representation was not considered and disposed of. It is also pointed out by the 3 W.P.(Crl)No.277/08 learned counsel that the counter affidavit filed by the detaining authority, respondent No.1, is silent on this aspect. 7. However, learned Government Pleader submits that the representation was in fact considered and rejected by the Government. A communication in this regard was also sent to the detenu on July 31, 2008. But, strangely, in paragraph-25 of the counter affidavit it is seen asserted by respondent No.1 that representation dated July 23, 2008 was not received either by the State Government or the Central Government. But, this statement is contrary to what respondent No.1 had stated in paragraph-2 of the counter affidavit wherein it was admitted that a representation dated July 23, 2008 had been received through the Superintendent, Central Prison, Trivandrum on July 28, 2008. But, as rightly pointed by the learned counsel for the petitioner the counter affidavit is totally silent as to whether the said representation was disposed of or not. Stranger still, it is now contended by the learned Government Pleader that even before the representation dated July 23, 2008, was received by the Government, the Advisory Board had met and considered the case of the detenu. Therefore, it was not necessary to consider the representation at all. There is no clue from the counter affidavit as to on what date the Advisory Board had considered the same. But, learned Government Pleader had made an attempt to persuade us to 4 W.P.(Crl)No.277/08 peruse the relevant file. Obviously his attempt is to show us that the Advisory Board had met some time in the second week of July, 2008. As mentioned by us earlier, the counter affidavit is totally silent about all these aspects, more importantly as to whether the representation had in fact been considered by the detaining authority. In this context, it may be noticed that Clause 5 of Article 22 of the Constitution of India mandates that the detaining authority shall afford the detenu an earliest opportunity for making a representation against the order. 8. It is well settled that any delay in considering the representation will be fatal as has been decided in a catena of decisions by the apex court. But, in this case, the situation is much worse. As mentioned earlier, the detaining authority has no case in the counter affidavit that the representation had been, in fact, considered; though belatedly an attempt is now being made at the bar by the learned Government Pleader that the representation was rejected by the Government on July 31, 2008. 9. Having carefully considered the materials available on record, we are satisfied that the detenu is entitled to be released from custody on this short ground. It is also brought to our notice that the detenu has undergone 11 months out of the one year period of detention awarded to him. 5 W.P.(Crl)No.277/08 Therefore, the writ petition is allowed. The detenu Sri. Mohammed Kasim Akbar Ali, S/o. Sri.Mohammed Kasim, Old No.12, New No.27, Muktharunnisa Main Street, Ellis Road, Mount Road, Chennai-600002, Tamil Nadu, shall be released from custody forthwith, if his continued detention is not necessary in connection with any other case. (A.K.BASHEER, JUDGE) (P. BHAVADASAN, JUDGE). cl 6 W.P.(Crl)No.277/08 7 W.P.(Crl)No.277/08