IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 RFA.No. 58 of 2008() -------------------- OS.1218/2001 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PLAINTIFF -------------------- K.K.SREENIVASAN,S/O.K.K.KESAVAN, KAINOOR HOUSE,NALLANKARA,NETTUSSERY,THRISSUR. BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENTS: --------------- 1. UNION OF INDIA REPRESENTED BY HOME SECRETARY,NEW DELHI. 2. STATE OF KERALA REPRESENTED BY HOME SECRETARY,THIRUVANANTHAPURAM. 3. THE ASSISTANT COLLECTOR OF CUSTOMS (PREVENTIVE),NEW CUSTOMS HOUSE,BALLARD, MUMBAI - 400 038,MAHARASHTRA. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2010, ALONG WITH C.M.C.P. 36/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S. SATHEESACHANDRAN, JJ. = = = = = = = = = = = = = = = = = = = = = C.M.C.P. 36 OF 2007 & R. F.A. No. 58 OF 2008 = = = = = = = = = = = = = = DATED THIS, THE 19TH DAY OF AUGUST, 2010. J U D G M E N T Thottathil B. Radhakrishnan, J. Though this matter is coming up for consideration for admission after the appellant having been granted leave to sue as an indigent person, learned counsel for the appellant submitted that in the event of this Court being satisfied that the appellant did not have a cause of action sufficient to result in a right to sue, the order allowing C.M.C.P. may be re-considered and the matter closed in that way so that at least the appellant shall be saved from paying the court fee he may have to pay in the event of this appeal being dismissed at the stage of admission. 2. A few persons including Subhash Ramachandra Kale, Santhosh Madhavan, Pradeed Ramachandra Kale and others were detained including for offences punishable under the Customs Act, Indian Penal Code and other provisions including under the Import and Export (Control) Act. Later, proceedings were initiated against the appellant under the COFEPOSA Act. He underwent detention for 400 days. Detention under the COFEPOSA Act is characterized as judicial interference and illegal and CMCP 36/2007 & RFA 58/2008 2 hence a suit for compensation was filed. 3. Though of and on it is stated in the pleadings and elsewhere as an action for malicious prosecution, it is essentially a case of alleged illegal detention because under the COFEPOSA Act what is done is detention and not prosecution. Concentrating on that, we find that the continued detention of the appellant under the COFEPOSA Act was with the clearance of the competent advisory board and therefore, the officers, particularly those who are arrayed as defendants, cannot be mulcted with any responsibility of having detained the appellant illegally. The inexcusable consequence is thus that the appellant was not liable to file a suit and the suit was misconceived and groundless. Hence we accede to the request of the learned counsel for the appellant and recall the order dated 8.1.2008 on CMCP 36/2007, not by allowing it but by recalling it on consent. We accordingly, dismiss the CMCP 36 of 2007 and as a consequence, this appeal will stand rejected. THOTTATHIL B. RADHAKRISHNAN, (JUDGE) S.S. SATHEESACHANDRAN, JUDGE knc/-