IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 WP(Crl.).No. 309 of 2007(S) --------------------------- PETITIONER: ------------ ASEENA, W/O A.M.RAHEEM, C.M.K.QUARTERS, ASARIKKANDY PARAMBA, NEAR CO-OPERATIVE BANK, CHURUVANNUR P.O., FEROKE, KOZHIKODE DISTRICT. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BYTHE SECRETARY TO GOVERNMENT, HOME (SSA)DEPARTMENT, THIRUVANANTHAPURAM. 2. GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI. 3. THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.P.A.SALIM – R1 & R2 SRI.P.PARAMESWARAN NAIR, ASST.SOLICITOR GENERAL. - R2. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON 11/04/2008 DELIVERED THE FOLLOWING: WPCR 309/2007 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE ORDER NO.48016/SSA4/2007/HOME DATED 16.7.2007 ISSUED BY THE 1ST RESPONDENT. EXT.P2 - TRUE COPY OF THE GROUNDS ACCOMPANYING EXT.P1 DETENTION ORDER ISSUED BY THE 1ST RESPONDENT. EXT.P3 - A TRUE COPY OF LIST OF DOCUMENTS RELIED UPON IN EXT.P1 ORDER. EXT.P4 - TRUE COPIES OF THE DOCUMENTS SERIALLY NUMBERED AS 1 TO 19 IN THE LIST OF DOCUMENTS EXT.P3 AS SHOWN BELOW: a) MAHAZAR DT. 19.6.07 ALONG WITH DOCUMENTS (PASSPORT NO.A.8669865 DT. 29.2.2000 AIR TICKET NO.058 26501545792, IDENTIFICATION CARD NO.XH 375620 AND XH-375621 TAG NOS.XH 375620 AND XH 375621. b) STATEMENT DT. 19.6.07 BEFORE SIO, DRI OF SHRI A.M.RAHIM. c) STATEMENT DT. 19.6.07 BEFORE SIO, DRI, CALICUT OF SHRI.A.T.MOHAMED. d) STATEMENT DT. 19.6.07 BEFORE SIO, DRI, CALICUT OF SHRI.THAFSAL. e) ARREST MEMO DT. 20.6.07 TO SHRI.A.M.RAHIM. f) ARREST MEMO DT. 20.6.07 TO SHRI.THAFSAL AND A.T.MOHAMMED. g) REMAND APPLICATION DT. 20.06.07 IN RESPECT OF SHRI.A.M.RAHEEM, A.T.MOHAMMED, SHRI.THAFSAL. h) PHONOGRAM DT. 20/06/07 INTIMATING THE ARREST OF A.M.RAHEEM. i) PHONOGRAM DT. 20.06.07 INTIMATING THE ARREST OF A.T.MOHAMMED. j) PHONOGRAM DT. 20.06.07 INTIMATING THE ARREST OF THAFSAL. k) LETTER C.NO.VIII/26/2/2006 DIB (G) DT. 20.06.07 OF ASSISTANT COMMISSIONER, CUSTOMS PREVENTIVE DIVISION, CALICUT WITH TWO MAHAZARS DT. 19.06.07. l) LETTER DRI/CRUP06/07 DT. 21.06.07 FROM THE SIO, DRI, CALICUT TO THE ASSISTANT COMMISSIONER OF CUSTOMS, KARIPUR AIRPORT. m) LETTER C.NO.VIII/48/2/07-CUS PART I DT.22ND JUNE, 2007 OF ASSISTANT COMMISSIONER, AIR CUSTOMS, CALICUT INTERNATIONAL AIRPORT ALONG WITH ITS ENCLOSURES. n) MAHAZAR DT. 22.06.07 FOR THE SEARCH OF RESIDENCE OF RAHEEM A.M. o) MAHAZAR DT. 25.6.07 PREPARED AT REGIONAL OFFICE OF RESERVE BANK OF INDIA, TRIVANDRUM ALONG WITH CERITIFICATE GIVEN BY THE TREASURER, RBI, TRIVANDRUM. WPCRL. 309/2007 p) BAIL APPLICATION DT. 29.06.07 ON BEHALF OF SRI.RAHEEM FILED BEFORE THE HON'B'LE ADDL.CJM (EO) ERNAKULAM. q) BAIL APPLICATION DT.03.07.07 ON BEHALF SRI.MOHAMMED A.T.FILED BEFORE THE HON'BLE ADDL.C.J.M. (EO) ERNAKULAM. r) BAIL APPLICATION DT. JULY 2007 ON BEHALF OF SRI.THAFSAL FILED BEFORE THE HON'BLE CJM (EO) ERNAKULAM. EXT.P5 SERIES: TRUE COPIES OF THE DOCUMENTS SERIALLY NUMBERED AS 20 AND 21 IN THE LIST OF DOCUMENTS EXHIBIT P3 AS SHOWN BELOW: a) COMMON ORDER DT. 04.07.07 IN CMP NOS.2876/07, 2912/07 AND 2942/07. b) BAIL APPLICATION DT.12.07.07 ON BEHALF OF SRI.MOHAMMED A.T. FILED BEFORE THE HON'BLE ADDITIONAL CJM (EO) ERNAKULAM. EXT.P6 - TRUE COPY OF THE REPRESENTATION DT. 22.8.07 FORWARDED BY THE PETITIONER TO THE 3RD RESPONDENT, FOR THE SIGNATURE OF THE PETITIONER'S HUSBAND AND SUBMISSION TO THE AUTHORITIES MENTIONED IN EXT.P1. EXT.P7 - TRUE COPY OF THE COVERING LETTER DT. 22.8.07 SENT BY THE PETITIONER TO THE 3RD RESPONDENT ENCLOSING 5 COPIES OF EXT.P6 REPRESENTATION WITH POSTAL RECEIPT. EXT.P8 - TRUE COPY OF THE LETTER DT. 4.9.2007 ISSUED BY THE FIRST RESPONDENT REJECTING EXT.P6 REPRESENTATION. EXT.P9 - TRUE COPY OF THE MEMORANDUM DT. 7.9.2007 ISSUED BY THE SECOND RESPONDENT REJECTING EXT.P6 REPRESENTATION. EXT.P10 - TRUE COPY OF THE ORDER CONFIRMING THE ORDER OF DETENTION, RECEIVED BY THE PETITIONER FROM THE RESPONDENT. EXT.P11 - TRUE COPY OF THE BAIL APPLICATION DT. 29.6.2007 (ILLEGIBLE COPY) GIVEN BY THE RESPONDENTS TO THE DETENU, ALONG WITH THE BUNCH OF DOCUMENTS MARKED AS EXT.P4. RESPONDENTS' EXTS. EXT.R1(a) TRUE PHOTO COPY OF THE ACKNOWLEDGMENT CARD DATED 21.7.07. EXT.R1(b) – TRUE PHOTO COPY OF THE LEGAL OPINION OF THE HON'BLE ADVISORY BOARD. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.P.(Crl) NO. 309 OF 2007 ----------------------------------------- Dated 11th April, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner, who is the wife of Sri.A.M. Raheem, has approached this Court, praying for the issuance of a writ in the nature of habeas corpus, releasing her husband, who is presently undergoing detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act). 2. The brief facts of the case as stated by the petitioner are the following: The petitioner's husband (hereinafter referred to as the 'detenu') went to Dubai in search of employment on 21.3.2007 under a visit visa. Though he tried to find out some employment during the validity of the visa period, he could not find one. There was no money left with him for the return air ticket. Mr.Hassan, who arranged the visit visa, introduced him to one Mr.Ahammed, who is a native of Kasaragod in Kerala. He was running a travel agency at Dubai. Mr.Hassan told the detenu that it was through the WP(Crl) 309/07 2 said Mr.Ahammed that he had arranged the visit visa for him. The said Mr.Ahammed advanced 1000 U.A.E. Dirhams to the detenu, to enable him to purchase the return air ticket. The said Mr.Ahammed, on the eve of his travel, contacted the detenu and requested him to carry a cardboard carton to Calicut, containing perfumes, biscuits, sweets etc. The detenu agreed to carry the carton. At the Dubai Airport, a person under the instructions of the said Mr.Ahammed entrusted a cardboard carton to the detenu. He was told that a relative of Mr.Ahammed will come to the Calicut Airport and collect the carton. On the detenu's arrival at Calicut Airport on 19.6.2007, nobody came to collect the cardboard carton. So, he hired a taxi and went to his house, which is at Cheruvannur, Kozhikode. After some time, a person contacted him over his mobile phone. Thereafter, two persons came and collected the cardboard carton from him. Soon thereafter, some officers attached to the Directorate of Revenue Intelligence (DRI), Kozhikode came to the house of the detenu and took him into custody. The two persons, who collected the carton earlier, were also with them. The detenu was taken to the office of the DRI, along with his baggage, which he brought from Dubai. Later, the DRI officials informed the detenu that they have recovered fake Indian currency notes having face value of Rs.15 lakhs from the cardboard carton brought by him. The detenu was not aware of the WP(Crl) 309/07 3 contents of the cardboard carton and therefore, he pleaded his innocence. He stated that he was trapped and cheated by the aforementioned Mr.Ahammed. The officers recorded the statement of the detenu under Section 108 of the Customs Act. A statement was dictated to him, which he wrote down. They had cleverly twisted certain facts and made him to incorporate them in his statement for foisting a case against him. The detenu as well as the other two persons were arrested and produced before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. In the bail application filed by him on 29.6.2007, he retracted the statement allegedly given under Section 108 of the Customs Act and mentioned that the said statement was not given voluntarily. The Magistrate's Court dismissed the detenu's application for bail along with that of the other two accused, by a common order dated 4.7.2007. While the detenu was remaining in judicial custody, he was taken into custody on 18.7.2007, on the strength of a detention order passed by the 1st respondent under the provisions of the COFEPOSA Act. A true copy of the said order is produced in the writ petition as Ext.P1. The document contining grounds of detention served on the detenu, a copy of which is annexed to Ext.P2 communication, is produced as Ext.P2(2) in the writ petition. The list of documents numbering 21, relied on in Ext.P2 grounds of detention is WP(Crl) 309/07 4 Ext.P3. Copies of the document Nos. 1 to 19 in Ext.P3 list are produced as Ext.P4 series. Copies of document Nos.20 and 21 mentioned in Ext.P3 are produced as Ext.P5 series. 3. The writ petitioner, who is the wife of the detenu, forwarded a representation to the 3rd respondent, the Superintendent of the Central Prison, Thiruvananthapuram, where the detenu is lodged, along with 5 copies of the same and a covering letter dated 22.8.2007, requesting to obtain the signature of the detenu in the required copies of the representation and to forward the same to the authorities mentioned in the order of detention, namely, the State Government, the Central Government and the COFEPOSA Advisory Board. A copy of the representation forwarded by the writ petitioner for getting the signature of her husband and further onward transmission, is Ext.P6. Ext.P7 is the covering letter forwarding Ext.P6. The State Government considered the said representation and rejected it by Ext.P8 order dated 4.9.2007. The Central Government rejected that representation by Ext.P9 memo dated 7.9.2007. Thereafter, the detenu was heard by the COFEPOSA Advisory Board. Based on its opinion, the State Government, by Ext.P10 order, confirmed the order of detention and permitted continued detention of the detenu for a period of one year from 18.7.2007. Challenging Ext.P1 detention order and WP(Crl) 309/07 5 seeking consequential reliefs, this writ petition is filed. 4. The detention order is attacked mainly on the following grounds:- Document No.17 in Ext.P3 list of documents, which is the copy of the bail application dated 29.6.2007 filed on behalf of the detenu before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam, was not legible. The said illegible copy was furnished to the detaining authority also. The said authority, therefore, did not advert to the retraction made by the detenu in the bail application of his statement recorded under Section 108 of the Customs Act. The detaining authority did not apply his mind to the fact that the detenu has retracted the statement and therefore, the detention order is vitiated. The supply of an illegible copy will amount to non-supply of the document to the detenu. The same will also vitiate the detention order. The detenu did not know English language. Most of the documents furnished along with the grounds of detention were in English. Therefore, the same disabled him from filing an effective representation under Article 22(5) of the Constitution of India, it was contended. 5. The 1st respondent has filed a counter affidavit, dealing with the averments in the writ petition. According to the detaining authority, the order under Section 3(1)(i) of the COFEPOSA Act was validly passed. The WP(Crl) 309/07 6 copies of the documents, which were relied on by the detaining authority to arrive at the subjective satisfaction, were served on the detenu. The detenu voluntarily gave the statement under Section 108 of the Customs Act on 19.6.2007. The allegations to the contrary are emphatically denied by the 1st respondent. After recording his statement, the detenu was produced before the Chief Judicial Magistrate's Court, Kozhikode. At that time, he did not make any complaint to the Magistrate regarding any ill-treatment meted out to him or any threat or coercion. The copies of the documents were served on the detenu on 21.7.2007. The detenu received the documents and he acknowledged receipt of them as per Ext.R1(a). At that time, the detenu did not make any demand or request for Malayalam translation of the documents. The detenu knowingly smuggled the prohibited goods. The chances of his being released on bail were not remote. If released, he was likely to engage in the very same smuggling activities. He did not reveal the masterminds behind the smuggling. To prevent him from engaging in smuggling again, the detention order was issued. Admittedly, the detenu has studied up to Pre-degree and therefore, he has knowledge of English. The present contention taken that the detenu does not know English, is raised only for the purpose of challenging the detention order. The Advisory Board also considered the detenu's contention regarding lack of WP(Crl) 309/07 7 knowledge of English. The same was rejected along with other contentions as per Ext.R1(b) opinion of the Board. The representation of the detenu was considered and rejected by the State Government on valid grounds, it was submitted. 6. The 2nd respondent has also filed a counter affidavit, stating that the representation received from the detenu was considered without delay and rejected. The petitioner has filed a reply affidavit and along with that, she has produced Ext.P11 document, which is the illegible copy of the bail application submitted by the detenu before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam and served on him along with the grounds of detention. 7. Heard the learned counsel Mr.C.P. Mohammed Nias for the petitioner and the learned Government Pleader Mr.P.A.Salim for respondents 1 and 3. The learned counsel for the writ petitioner reiterated the aforementioned contentions. He also relied on the decisions of the Apex Court in Dharmista Bhagat v. State of Karnataka [1989 Supp (2) SCC 155], Manjit Singh Grewal v. Union of India [1990 (Supp) SCC 59], Mehrunissa v. State of Maharashtra [(1981) 2 SCC 799], M.Ahamedkutty v. Union of India [(1990)2 SCC 1]. The above decisions WP(Crl) 309/07 8 are relied on to attack the supply of illegible copy of the bail application. Even if it is a bail application of the detenu, still he is entitled to get a copy of it, as per the last two decisions mentioned, it is submitted. In support of the submission that non-consideration of the effect of retraction of the statement will vitiate the detention order, the learned counsel for the petitioner relied on the decisions of the Apex Court in Ashadevi v. K.Shivraj [AIR 1979 SC 447] and Yumnam Mangibabu Singh v. State of Manipur [(1982)3 SCC 18]. To buttress the argument that non-supply of the translated copies of the documents will vitiate the detention order, the learned counsel relied on the decisions of the Apex Court in Nainmal Pertap Mal v. Union of India [AIR 1980 SC 2129] and Tsering Dolkar v. Administrator [1987(28) E.L.T. 188 (SC)]. 8. The learned Government Pleader, in answer, submitted that the copy of the bail application is not a vital document or a material document and even if it is slightly illegible, the same will not vitiate the detention order. He also relied on the decision of the Apex Court in Noor Salman Makani v. Union of India [(1994)1 SCC 381]. He distinguished the decision in Dharmista Bhagat v. State of Karnataka [1989 Supp (2) SCC 155] cited by the petitioner. In that decision, the document omitted to be WP(Crl) 309/07 9 furnished was the Panchanama dated 12.2.1988, which is a very vital document. Relying on the decision of the Apex Court in J.Abdul Hakeem v. State of T.N. [(2005)7 SCC 70], he submitted that the detenu has failed to establish that the failure to supply the copy of the bail application has impaired his right to represent against the detention. Relying on the decision of the Apex Court in Prakash Chandra v. Commr. & Secy., Govt. of Kerala [AIR 1986 SC 687], the learned Government Pleader submitted that a common sense view of the facts have to be taken. Relying on Kubic Dariusz v. Union of India [1990(48) E.L.T. 171(SC)], it is submitted that the detenu need not write an essay or pass any language test in English. He requires only a working knowledge of English to understand the grounds of detention. A person, who has studied up to Pre- degree can be presumed to have a working knowledge of English, it is submitted. The learned Government Pleader also distinguished the decisions relied on by the learned counsel for the petitioner. 9. From the materials on record, the version of the respondents regarding the incidents leading to the detention of the detenu is as follows: On 19.6.2007 at 1 p.m., the Senior Intelligence Officer (SIO) of the Directorate of Revenue Intelligence (DRI) and party intercepted a Wagon R WP(Crl) 309/07 10 car bearing registration No.KL-13M 2675 at Cheruvannur, Kozhikode. One Mr.Thafsal was driving the vehicle and another person Mr.A.T.Mohammed was also travelling in the car. A cardboard carton was found in the vehicle. Mr.A.T.Mohammed said, he received it from the detenu, who came from Dubai on that day. Mr.Mohammed took the officers to the detenu's residence. On reaching there, the detenu admitted having carried the cardboard carton and having given it to Mr.Mohammed. The detenu accompanied the officers to the DRI office along with a black coloured trolley bag, which was the only baggage he brought with him from Dubai, apart from the above mentioned cardboard carton. At the office of the DRI, in the presence of witnesses, the cardboard carton was opened, in which two tins of biscuits were found. On opening those tins, Indian currency notes of Rs.1000 and Rs.500 denominations, the total face value of which came to Rs.15 lakhs, were found. Bank officials were called in to examine the currency notes. It was stated by them that they were counter- feit notes. Thereupon, the statements of the above three persons, including the detenu were recorded under Section 108 of the Customs Act. After preparing the mahazar and completing other formalities, the above three persons were arrested. They were produced before the Judicial First Class Magistrate's Court, Kozhikode on 20.6.2007. The said court remanded them WP(Crl) 309/07 11 to judicial custody. They were later produced before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. Again, they were remanded to judicial custody. While undergoing detention as remand prisoner, the order of detention Ext.P1 was passed against the detenu. 10. Even going by the retraction, which is reflected in his bail application dated 29.6.2007 (document No.17 mentioned in Ext.P3), the detenu does not have a case that he did not carry the cardboard carton containing the contraband goods. His only case is that he is an innocent carrier. The above fact is reflected in para 6 of the writ petition, wherein the petitioner has stated that: “Since the detenu was totally innocent and was not at all aware of the contents of the cardboard carton, he had pleaded his innocence in tears before the officers and stated that he was trapped and cheated by the above mentioned Ahammed.” 11. Thus, the involvement of the detenu in smuggling fake Indian currency notes is admitted. Whether he was involved in it deliberately or was only an innocent carrier as pleaded by him, is a matter for the detaining authority to decide. After referring to all relevant materials, if the authority arrives at a subjective satisfaction that the detenu's version is unacceptable and he should be detained to prevent his involvement in further smuggling, this Court cannot sit in appeal over that decision. WP(Crl) 309/07 12 12. Obviously, in view of the above legal position, the learned counsel for the petitioner only attacked the alleged procedural improprieties in the decision making process. The first contention raised by the learned counsel for the petitioner is that Ext.P11 illegible copy of the bail application was furnished to the detenu. So, the copy available with the detaining authority was also an illegible copy. Therefore, the detaining authority did not read it. Had the authority read that document, it would not have commented that the detenu had not retracted his statement. The effect of retraction was a vital aspect, which will influence the subjective satisfaction of the detaining authority, it is submitted. We notice that in this case, in the grounds of detention, the detaining authority has stated in para 10 as follows: “Bail application was filed on your behalf before the Additional Chief Judicial Magistrate, Court of Economic Offences, Ernakulam. The bail application was rejected by a common order dated 04.07.2007 in CMP Nos.2876/07, 2912/07 and 2942/07. Another bail application was filed on behalf of Sri.Mohamed A.T., on 12.07.2007 before the Additional Chief Judicial Magistrate, Court of Economic Offences, Ernakulam and I have considered the same.” The above statement would show that the detaining authority has considered the filing of the bail application by the detenu and its rejection. In para 14 of the grounds for detention, it is stated as follows: WP(Crl) 309/07 13 “You have not retracted the statement given by you on 19.06.07 before the SIO, DRI, Calicut under Sec.108 of the Customs Act. You have not made any complaint to the Hon'ble Judicial Magistrate (First Class), Kozhikode when you were produced before him on 20.06.07 after your arrest. Neither have you made any representation/complaint regarding the statement given by you before the DRI authorities till date. The contents of the said statement are corroborated by other documentary evidences like Mahazar, Customs Gate pass, Flight manifest, in addition to the statements of Sri.Mohamed A.T and Sri.Thafsal under Sec.108 of the Customs Act.” The above statement would only show that the detenu has neither made any formal complaint before the Magistrate nor filed any formal representation or complaint before the DRI authorities or other superior authorities regarding the recording of the statement. Viewed from that angle, the statement made in para 14 quoted above, by the detaining authority, is correct. Further, as evident from the bail application as also the pleadings in the writ petition, the alleged retraction of the detenu cannot be described as a retraction in the real sense. He does not have a case that he did not travel on that date, he did not bring any cardboard carton, he did not give it to Mr.A.T.Mohammed, the same was not seized by the DRI officials, there were no fake currency notes in the biscuit tins found in the carton etc. He only says that he was an innocent carrier, who was unaware of the contents of the cardboard carton. The detenu's version of the incident that he happened to carry the cardboard carton without knowing its contents, is WP(Crl) 309/07 14 contained in his statement recorded under Section 108 of the Customs Act. That will be evident from the statements contained in paragraphs 3 and 4 of that statement, a copy of which is mentioned as document No.2 in Ext.P3 list of documents. So, going by the facts of this case, the statement made by the detenu in his bail application is nothing new. It is only put in a different form, as is usually stated in an application for bail. The petitioner does not have a case that the detenu's version regarding the incident, contained in his statement recorded under Section 108 of the Customs Act, has not been adverted to by the detaining authority. In fact, the version of the detenu regarding the incident was very much understood by the detaining authority and the same was adverted to by it. As evident from para 10 of Ext.P2 quoted above, the detaining authority considered the bail application also. There is no warrant to assume that the copy of the bail application furnished to the detaining authority was not legible and therefore, it did not understand the contents of that document. So, the first ground strenuously canvassed by the learned counsel for the petitioner is no ground at all. It is plainly untenable. The decisions relied on by the learned counsel for the petitioner have no application to the facts of this case. 13. The next contention raised is that the detenu is entitled to get a legible copy of the bail application, even though it is his document. It is WP(Crl) 309/07 15 contended that the supply of an illegible copy will amount to non-supply of the said document. The bail application of the detenu is not a vital or material document, as far as the detenu is concerned, in preparing his representation. The decisions relied on by the learned counsel for the petitioner concerns non-supply of vital and material documents. They cannot be pressed into service, in view of the facts of this case. It is true, when the detenu