IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 WP(Crl.).No. 244 of 2007(S) --------------------------- PETITIONER: ------------ ABDULKHADER, AGED 52 YEARS, S/O ABDULLA, MALAPPA HOUSE, UPPALA, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, B WING, JANAPATH BHAVAN, JANAPATH, NEW DELHI 110001. 2. THE SECRETARY, CENTRAL ECONOMIC INTELLIGENCE BUREAU, DEPARTMENT OF REVENUE,(COFOPOSA UNIT) 6TH FLOOR, B WING, JANAPATH BHAVAN, JANAPATH, NEW DELHI 110001. 3. THE CHAIRMAN, COFEPOSA ADVISORY BOARD, HIGH COURT OF KERALA, ERNAKULAM. 4. CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GOVT.PLEADER MR.P A SALIM THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.P.BALACHANDRAN, JJ. -------------------------------------------------------------------------------- Writ Petition (Crl) No.244 of 2007-S -------------------------------------------------------------------------------- Judgment Balakrishnan Nair, J. This Writ Petition is filed on behalf of Mr.Abdul Majeed Khader, by his father, praying to issue a writ of habeas corpus, against the respondents to bring the said Abdul Majeed Khader before this Court and order his release. 2. The brief facts of the case, as stated by the petitioner are the following. The petitioner's son Mr.Abdul Majeed Khader (hereinafter referred to as the detenu) was a Salesman in a shop at Dubai. He hails from a poor family and the members of his family are depending on him. His wife gave birth to a girl child on 29.05.2007. Owing to his detention, his parents, wife and child are seriously affected. 3. On 28.04.2007, he arrived at Karipur Airport from Dubai by Flight No.A1 980. He came out of the Airport through 'walk through' channel. Thereafter,he was intercepted near Hotel Calicut Tower, Calicut by the officials of the Directorate of Revenue Intelligence.On examination of his baggage, fake Indian currency notes worth Rs.20 lakhs were recovered from the speakers of a multi-media player, brought by him. So, he was accused of the offences Writ Petition(Crl) No.244/07 2 under Ss.11 and 77 of the Customs Act. The detenu denied conscious possession of the fake notes. He was cheated by a businessman in Dubai. He was arrested on 29.04.2007 at about 12.30 pm., by the officials of the Directorate of Revenue Intelligence, Calicut. They recorded a statement under threat and coercion. He was produced before the Judicial First Class Magistrate's Court, Calicut on 29.04.2007. As per Ext.P1 arrest memorandum dated 29.04.2007,he was accused of having committed the offence under S.11 of the Customs Act, 1962, which is punishable under S.135 thereof. Ext.P2 is the remand application filed before the said court. The detenu was ordered to be produced before the Economic Offences Court, Ernakulam on 11.05.2007. On production, the Additional Chief Judicial Magistrate's Court (Economic Offences),Ernakulam remanded him to judicial custody upto 25.05.2007. While so, an order was passed by the 4th respondent, ordering his detention under S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (hereinafter referred to as the COFEPOSA Act). The grounds of detention, along with some documents, were served on him, along with a covering letter. The copies of the covering letter and the grounds of detention are Exts.P3 and P4. The grounds of detention were Writ Petition(Crl) No.244/07 3 stated in English language, which was unfamiliar to the detenu. Therefore, he was not able to read or understand them. The order of detention was not served on him. Later, the detenu filed Ext.P5 representation dated 08.06.2007 before the 3rd respondent Chairman of the COFEPOSA Advisory Board. The said representation was considered and rejected by the 2nd respondent Secretary, Central Economic Intelligence Bureau, Department of Revenue (COFEPOSA unit) by Ext.P6 order dated 26.06.2007. The 2nd respondent is not competent to dispose of the detenu's representation addressed to the third respondent. The State Government affirmed the said detention order under Section 8(f) of the COFEPOSA Act by Ext.P7 order dated 13.07.2007. The writ petitioner, who is the father of the detenu, has filed this Writ Petition, seeking to quash Ext.P7 and order release of the detenu on various grounds. 4. The main grounds urged by the petitioner are the following: Even assuming all the allegations against the detenu are correct, still, no order of detention under the COFEPOSA Act can be passed in the absence of any possibility of the detenu repeating the very same offence. The order has been passed mechanically, without application of mind. The alleged satisfaction of the detaining authority is vitiated, as the same has been arrived at without Writ Petition(Crl) No.244/07 4 taking into account the various relevant matters. Further, it was contended that the grounds of detention were in English language and therefore, the detenu, who did not know English language, was completely disabled from making any effective representation against his detention. So, his continued detention is vitiated. Ext.P6 does not disclose any reasons for the rejection of his representation. 5. A counter affidavit has been filed on behalf of respondents 1 and 2, in which all the averments and allegations of the detenu against them have been dealt with. It is submitted that the representation of the detenu dated 08.06.2007 from the Jail which was received on 20.06.2007, has been promptly dealt with and rejected on 26.06.2007. 6. The 4th respondent has filed a counter affidavit, dealing with the averments in the Writ Petition. The said respondent has denied the contention regarding non-service of the detention order on the detenu. Ext.R4(a), which is a copy of the detention order, containing the acknowledgment of the detenu for having received it, has been produced along with the counter affidavit. Further, it is submitted that even as per the detenu's statement dated 29.04.2007 before the DRI authorities, he has studied upto Standard X and he knows Writ Petition(Crl) No.244/07 5 English, Hindi and Malayalam. So, the grounds of detention are served on him in a language known to him. The detenu was engaged in smuggling of fake Indian currency notes and therefore, his action will come under the ambit of the COFEPOSA Act. So, he was rightly detained. It is also submitted that the COFEPOSA Advisory Board has approved the detention order also. 7. The petitioner has filed a common reply affidavit, dealing with the averments in the counter affidavits of respondents 1 and 2 and also the 4th respondent. 8. We heard the learned counsel on both sides. We heard the detenu also in person. We called for the files of the Central and the State Governments, concerning the detention and perused them. The detenu has made a statement before the Officers of the DRI under Section 108 of the Customs Act, 1962 on 29.04.2007. The contents of the said statement are given in para 2 of Ext.P4 grounds of detention. The same would show the detailed facts of the case of the DRI Officers against the detenu. So, for convenient reference, we are extracting the said para below : “A statement was recorded from you on 29.04.2007 under Section 108 of the Customs Act, 1962, wherein you stated, inter Writ Petition(Crl) No.244/07 6 alia, that you had been working in several places in the Gulf for the past five years and that currently you were employed as a Salesman in a readymade shop on a salary of 1000 Dirhams : that you had arrived the previous day from Dubai to attend the marriage of your brother-in-law, that though you had asked your shop owner for money to meet the expenses for the trip home, you had not got the money and it was under this circumstances that one Assainar who was staying near your room in Ajman promised to take the ticket for you and for that you were to transport a “Geepas System” to India ; you were told that it will contain memory cards and that on landing at Karipur, you were to go out without declaring it and that if the Customs at Karipur caught you, the money to pay duty would be arranged to be brought to Karipur by him ; you agreed to the same. You further stated that the ticket worth about 800 Dirhams was taken by Assainar and he gave you an additional 400 Dirhams ; that when you started for India, Assainar had taken you to the airport in a taxi and it was while coming to the Dubai Airport that Assainar Writ Petition(Crl) No.244/07 7 handed over to you the cardboard carton of Geepas Audio System ; you had brought that carton and a trolley bag containing your clothes as check in luggage ; you were to call Assainar from a booth in the number 098503640446 on reaching Karipur whereupon Assainar would tell you to whom the Geepas box was supposed to be handed over to. You deposed that accordingly you reached Karipur on flight A1 980 by about 8.30 pm, after collecting your two pieces of luggage, you came out through the green channel without declaring anything to Customs ; immediately after coming out, you called Assainar from an STD booth in the above said number, Assainar directed you to go to the front of Hotel Calicut Tower near Markaz in Calicut and that people would be waiting for you and that you were to hand over the above said Geepas box to them ; that while waiting for the taxi, you met Ummer, who had come by another flight and both of you came from Karipur to Calicut in a pre-paid taxi; that on your request, the vehicle came to Hotel Calicut Tower and as soon as the vehicle entered the parking area, two people approached the Writ Petition(Crl) No.244/07 8 vehicle ; that when you alighted from the vehicle, they asked if you had brought goods from Gulf and when you replied that the box brought from Gulf was in the vehicle they too got into the vehicle saying that they were going to Kanhangad and asked the driver to go to the bus stand and if no bus was available, to go to the Railway Station. After you climbed into the vehicle, the vehicle had just entered the road from the parking area when the officers stopped the vehicle ; immediately the two persons who had come to collect the box got out of the vehicle and ran away and you, Ummer and your baggages were brought to the DRI office in the same vehicle and your baggage examined in the presence of witnesses ; that when the officers opened the cardboard carton of the Geepas audio system, it was seen to contain a Geepas CD system with two speakers; that the officers opened a speaker on the reasonable belief that something was concealed inside as it appeared to be heavier than normal ; that several paper packets were seen stacked within it with some pampers pushed in, to keep them in place ; when these papers Writ Petition(Crl) No.244/07 9 packets were taken out, opened and examined, Indian currency rupees of Rs.500 and Rs.1000 denominations were seen inside. On detailed examination, the officers understood that they were fake Indian currency notes and thereafter, the other speaker also was similarly opened and examined and in it also, fake Indian currency notes of Rs.500 and Rs.1000 denominations were seen in a similar manner ; that the currency notes were found to number 2400 numbers of Rs.500/- and 800 numbers of Rs.1000/- fake Indian Currency notes. On the request of the officers, some bank officers had examined the notes under a mahazar on the reasonable belief that they were liable to confiscation as they have been smuggled into India from abroad illegally and without declaring to Customs. You further stated that the facts stated in the mahazar were all true ; you had read and received the copy. When you were asked to provide details regarding Assainar and the people who had waited for you in front of Hotel Calicut Tower, you stated that Assainar was 35 to 40 years old and has been in the Gulf for a long time and that you did not know his address in Writ Petition(Crl) No.244/07 10 India ; you also stated that you did not know the persons who had waited for you in front of Hotel Calicut Tower and that you did not know their names or addresses nor had you seen them before. You further admitted that you knew that bringing fake Indian currency notes from abroad was illegal and admitted to the offence of bringing fake Indian currency from abroad to India without declaring to Customs. You further stated that you can read and write in English, Malayalam and Hindi and that you did not have any bank account.” 9. The detenu, in Ext.P5 representation dated 8.6.2007, has stated that the statement dated 29.04.2007 was recorded under threat and coercion. But, he does not deny the recovery of fake currency notes from him. He submits, he is innocent in the above incident. He was victimised by a person, who is not known fully to him. He claimed, he was an innocent carrier of contraband goods, though he admitted in his statement before the DRI officials that he carried the goods thinking that he was smuggling “memory cards”. Anyhow, we cannot go into the disputed questions of fact, while exercising our powers under Article 226 of the Constitution of India. So, having regard to the above Writ Petition(Crl) No.244/07 11 factual background, we have to examine the legal contentions raised on behalf of the detenu. 10. The learned counsel for the petitioner, firstly submitted that even if all the allegations of the respondents against the detenu are correct, no order of detention could have been passed under S.3(1)(i) of the COFEPOSA Act, based on them as there was no possibility of the detenu repeating the offence in future. There is total non-application of mind from the part of the detaining authority on the above relevant aspect and the order was passed in a mechanical manner. The subjective satisfaction has been arrived at without any reference to the relevant facts. The detaining authority did not take into account the grounds taken by the detenu in his bail application submitted before the Additional Chief Judicial Magistrate's Court (Economic Offences) Ernakulam. Therefore, the impugned order is vitiated. In support of the above submission, the learned counsel for the petitioner relied on the decisions of the Apex Court in Union of India v. Aravind Shergill (2000) 7 SCC 601), Chowdarapu v. Raghunandan v. State of Tamil Nadu (2002) 3 SCC 754) and Safia v. Government of Kerala (2003) 7 SCC 46). The learned counsel for the respondents submitted that the detention order was passed properly Writ Petition(Crl) No.244/07 12 and also added that the above decisions will not support the case of the writ petitioner. He relied on the decision of the Apex Court in Rajesh Vashdev Adnani v. State of Maharashtra (2005) 8 SCC 390) in support of his contentions. The decision of the detaining authority under S.3(1) of the COFEPOSA Act is one rendered on the subjective satisfaction of the said authority. If all the relevant materials are taken into account and a decision is rendered, it is no role of this Court to re-appraise the materials on record and substitute the decision of the competent authority by that of this Court. In this case, we notice that as evident from the grounds of detention, a copy of which is produced as Ext.P4, all the relevant materials including the pendency of the bail application, have been taken into account. The detaining authority also noticed that when the detenu was produced before the Judicial First Class Magistrate's Court on 29.04.2007, he did not make any complaint regarding ill- treatment. It is also noticed that till 21.05.2007, the date of the detention order, he has not made any complaint regarding the statement made by him before the DRI officials on 29.04.2007, before any authorities. We are of the view that the detention order has not been passed mechanically. All the relevant aspects have been adverted to, as evident from Ext.P4. On being satisfied that unless Writ Petition(Crl) No.244/07 13 detained, the detenu is likely to engage in smuggling activities in future also, he was ordered to be detained. So, we reject the contention of the petitioner that the order has been passed mechanically without application of mind. The decisions relied on by the petitioner will not in any way help him, as they are not applicable to the facts of this case. 11. The further contention of the petitioner that the smuggling of fake Indian currency notes is not an activity for which the provisions of the COFEPOSA Act can be invoked, is plainly untenable. The counterfeit Indian currency notes come under the category of 'prohibited goods', which cannot be imported. The detenu has imported the same. Therefore, his action is squarely covered by the provisions of Section 3(1)(i) of the COFEPOSA Act, warranting action thereunder. The relevant portion of Section 3 of the COFEPOSA Act reads as follows : “3. Power to make orders detaining certain persons – (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to that Writ Petition(Crl) No.244/07 14 Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from - (i) smuggling goods, or .......................... ............................................................... it is necessary so to do, make an order directing that such person be detained :” We are of the view that the above provision has been rightly invoked in this case, as the petitioner smuggled goods (fake currency notes), the import of which is prohibited. 12. The next contention raised by the petitioner is regarding the service of the grounds of detention in English language. According to the petitioner, the detenu does not know English and therefore, he was seriously prejudiced. In support of this submission, he relied on the decision of this Court in Sainaba v. State of Kerala (2003(1) KLT 236). He also submitted that the explanation of the grounds of detention in Malayalam language to the detenu is not sufficient. In support of that submission, the learned counsel relied on the Writ Petition(Crl) No.244/07 15 decision of the Apex Court in Lallubhai Jogibhai v. Union of India (AIR 1981 SC 728). In answer, the learned counsel for the respondents submitted that the detenu has admitted in his statement that he has working knowledge in English, Hindi and Malayalam. He pointed out that even in the writ petition, the petitioner's case is only that “.............the grounds of arrest are stated in English language which is not much familiar to the detenu.” The learned counsel for the respondents also submitted that the full explanation and translation of the grounds of detention will meet the requirement of law. In support of the said submission, the learned counsel relied on the decision of the Apex Court in Razia v. Union of India (AIR 1980 SC 1751). 13. The detenu was a Salesman working in a shop at Dubai. Admittedly, he has studied upto Standard X. A person, who knows Malayalam alone will not normally be engaged as a Salesman in a foreign country where interaction with the customers other than from Kerala is necessary. In his representation Ext.P5, he does not have a case that he does not know English and therefore, he could not read or understand the grounds. Therefore, the claim of the petitioner that the detenu does not know English, lacks credence. The decisions cited by the petitioner, concerning totally illiterate persons or Writ Petition(Crl) No.244/07 16 persons, having no knowledge of English, cannot have any application to the facts of this case. The petitioner has failed to show that the detenu has been prejudiced by the service of the grounds of detention in English language. At any rate, as mentioned earlier, in his representation, the detenu does not have any such case. So, the said contention of the petitioner is also rejected. 14. Finally, it was contended that Ext.P6 has been passed by an incompetent authority and that too, without a speaking order. A copy of the representation addressed to the COFEPOSA Advisory Board was forwarded to the Central Government also. Upon receipt of the same, the Central Government are bound to dispose of the same in the light of the decision of the Apex Court in Smt.Gracy v. State of Kerala (1991) 2 SCC 1). Even if the order rejecting his representation is not a speaking order, it can be sustained if the files contain the reasons for the rejection, in view of the decision of the Apex Court in Haradhan Saha v. State of West Bengal (1975) 3 SCC 198). In the said decision, it was held as follows : “The opinion of the Board as well as the order of the Government, rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. Writ Petition(Crl) No.244/07 17 There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government and the Advisory Board.” The same principle was reiterated by the Apex Court in John Martin v. State of West Bengal (1975) 3 SCC 836). In this case, we perused the file of the Central Government, leading to Ext.P6. We found that all the contentions of the detenu have been examined in detail. We are satisfied that the petitioner's representation has been properly considered by the competent authority, though the order issued is a non-speaking order. 15. In the result, no grounds have been made out, warranting interference with the detention order Ext.P6 or with Ext.P7 order, affirming the same. Accordingly, the Writ Petition is dismissed. K.BALAKRISHNAN NAIR,JUDGE 08.01.2008 K.P.BALACHANDRAN, JUDGE Writ Petition(Crl) No.244/07 18 sta