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. 3 of 2008(S) ------------------------- PETITIONER: ------------ A.T.AYISHA, W/O. MOIDUTTY, NAFEESA MANZIL, PURAKKALAM, KOOTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT, HOME (SSA) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI. 3. THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL – R2 GOVERNMENT PLEADER SRI.P.A.SALIM – R1 & R3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON 11/04/2008 DELIVERED THE FOLLOWING: WPCRL.3/2008 APPENDIX PETITIONER'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 THE PETITIONER 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 1ST RESPONDENT. EXT.P7 - BAIL APPLICATION DATED 12.07.2007 SUBMITTED ON BEHALF OF THE DETENU BEFORE THE COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) 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 ON 16.07.07. EXT.R1(c) – A TRUE COPY OF THE REQUEST OF THE DETENU TO THE JAILOR TO SEND ALL THE 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. JUDGMENT Balakrishnan Nair, J. This is a writ petition filed under Article 226 of the Constitution of India, by the mother of Sri.A.T.Mohammed, a person detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), praying to issue a writ of habeas corpus for the release of the said detenu. 2. The brief facts of the case, as stated by the petitioner are the following: While the detenu was travelling in a Wagon R car bearing registration No.KL-13M 2675, the same was intercepted by the Senior Intelligence Officer (SIO), Directorate of Revenue Intelligence (DRI) and party near Cheruvannur, Kozhikode at 1 p.m on 19.6.2007. In the car, there was a cardboard carton . The detenu informed the officer that it was handed over to him by one Sri.A.M.Raheem, who had come from Dubai. When the said Raheem was contacted, he immediately admitted the handing over of WP(Crl) 3/08 2 the cardboard carton to the detenu. The said Mr.Raheem came to the office of the Directorate of Revenue Intelligence with a black trolley bag, which was the baggage brought by him, apart from the cardboard carton. The carton was opened and examined. Apart from other items like soaps, glass tumblers etc., it contained two biscuit tins. When the tins were examined, Indian currency notes of 1000 and 500 denominations worth Rs.15 lakhs were found concealed in them. The Bank officials, who were summoned to examine the notes, stated that they were fake Indian currency notes. Mr.Raheem divulged that the cardboard carton containing the biscuit tins, in which the fake Indian currency notes were concealed, was handed over to him by one person at Dubai. He had not declared before the Customs officials any goods for which duty is payable and he came out through the green channel at Karipur Airport. The carton was to be handed over to a person at Calicut. He carried the same, as he was promised some remuneration. As per the instructions from Dubai, he handed over the carton to the detenu, when he came to his house. The detenu was arrested on 20.6.2007 and was produced before the Judicial First Class Magistrate's Court, Kozhikode, which remanded him to judicial custody. While so, he was served with Ext.P1 order passed by the 1st respondent, detaining him under Section 3(1)(i) of the COFEPOSA Act for a period of one year. A WP(Crl) 3/08 3 copy of the grounds of detention was served on him, which is produced as Ext.P2. A copy of the statement allegedly given by the detenu, furnished along with Ext.P2, is Ext.P3. The detenu filed Ext.P4 representation before the 1st respondent on 8.8.2007 against Ext.P1 detention order. In the said representation, the detenu had requested the 1st respondent to forward a copy of Ext.P4 to the 2nd respondent. Moreover, the 3rd respondent, who is the Superintendent of the Central Prison, Thiruvananthapuram where he was detained, was also requested to forward a copy of Ext.P4 to the 2nd respondent. The 1st respondent, without adverting to the contentions of the detenu, rejected his representation by Ext.P5 communication dated 21.8.2007. Thereafter, the 1st respondent confirmed the detention order by Ext.P6 order dated 29.9.2007. This writ petition is filed, challenging Exts.P1 and P6 and also praying for appropriate orders for the release of the detenu. 3. Though several grounds were raised in the writ petition, the learned counsel for the petitioner only pressed ground Nos.5, 6 and 8 raised in the writ petition. The first ground (Ground No.5 in the writ petition) was that the 1st respondent did not forward a copy of Ext.P4 to the 2nd respondent Central Government, which has got power to revoke the order of detention. Though, there was a specific request made in Ext.P4 for sending WP(Crl) 3/08 4 the 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 said submission, the petitioner relied on the decisions of the Apex Court in Rattan 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 furnished to the detenu were in English. He cannot read or write English. Therefore, he was disabled from making the statutory representation effectively. The third 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 bail applications filed by him before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. He had filed a bail application on 4.7.2007 and thereafter, another application on 12.7.2007. In those bail applications, he had retracted from the statement allegedly given by him under Section 108 of the Customs Act, a copy of which is produced as Ext.P3. In the said bail applications, the detenu had specifically stated that Ext.P3 was recorded under threat and coercion. But the grounds of detention would show that the detaining authority proceeded on the footing that the detenu did not retract from Ext.P3. The same will show total non- WP(Crl) 3/08 5 application of mind and therefore, it vitiates the impugned orders, it is submitted. 4. The 1st respondent has filed a counter affidavit, denying all the allegations of the petitioner. It is submitted that the impugned orders were passed strictly in accordance with the provisions of the COFEPOSA Act, 1974, as also Article 22 of the Constitution of India. It is pointed out that the Screening Committee met on 12.7.2007 and gave an opinion that unless the detenu is detained under the COFEPOSA Act, 1974, he would repeat the offence of smuggling. The detaining authority, after considering the said recommendation and also all relevant materials independently, passed the detention order. The Advisory Board constituted under the COFEPOSA Act, consisting of three Judges of this Court, after hearing the detenu, gave an opinion as per Ext.R1(a) that sufficient grounds were made out for the continued detention of the detenu. The allegation that the statement under Section 108 of the Customs Act given by the detenu on 19.6.2007 was made under threat and coercion, was emphatically denied. Other contentions in the writ petition were also specifically dealt with and denied by the 1st respondent. 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) 3/08 6 said respondent. The petitioner has filed a reply statement and along with that, she has produced Ext.P7, which is the bail application filed by the detenu before the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam on 12.7.2007. 6. We heard the learned counsel Mr.Sunny Mathew for the petitioner and 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 is that the copy of the detenu's representation Ext.P4 was not forwarded to the Central Government. Ext.P4 is a representation addressed to the Kerala Government. There is no necessity to forward photo copies of the same to other authorities. If any representation addressed to the 2nd respondent was forwarded to the 1st respondent and if the 1st respondent did not forward the same, the grievance raised by the petitioner is genuine. The detenu does not have any such case. Further, no representation addressed to the 2nd respondent was entrusted to the 3rd respondent for forwarding the same to the 2nd respondent. In view of the above facts, the contention raised by the petitioner cannot be accepted. The decision in Rattan Singh v. State of Punjab [AIR 1982 SC 1] concerns the omission of the State Government to forward a representation received by it to the Central Government. The WP(Crl) 3/08 7 detenu's counsel drafted two representations and sent the same to the Superintendent of Central Jail, Amritsar for obtaining the signature of the detenu and for forwarding the same to the State Government and the Central Government. The Superintendent of the Jail, after obtaining the signatures of the detenu, sent both the representations to the State Government. The State Government considered the representation addressed to it and rejected it. But, it failed to forward the representation meant for the Central Government. The Apex Court in the above facts of the case, held that the detention is invalid for the failure of the State Government to forward the representation addressed to the Central Government. The said decision cannot have any application to the facts of this case, where there was no representation given by the detenu or his counsel addressed to the Central Government. Similar is the case of the petitioner in Haji Mohd. Akhlaq v. District Magistrate [1988 SCC (Cri) 886]. From the facts of the above case, it would appear that the detenu marked a copy of the representation submitted by him to the State Government, to the Central Government also. He also requested the State Government to forward the same to the Central Government. Since the State Government failed to forward it in time, the Apex Court interfered with the detention. WP(Crl) 3/08 8 7. In the present case, in para 3 of the counter affidavit, it is specifically stated by the 1st respondent as follows: “No representation addressed to the second respondent was received 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 at the bottom of Ext.P4 to send a copy of the same to the 2nd respondent will be sufficient. We are of the view that unless there is a representation addressed to the Central Government or a copy of the representation marked to the Central Government, the State Government cannot be found fault with for failing to send a copy of the representation addressed to the State Government, to the Central Government. So, the decisions relied on by the petitioner 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 your detention to the Detaining Authority (Govt. of Kerala), the Government of India as well as the Advisory Board. If you wish to avail your right of making representation, you may submit your representation through the Jail authorities, where you are detained in the manner indicated below: a) Representation meant for the detaining authority (Govt. of Kerala) should be addressed to the Principal Secretary to the Govt. of Kerala, Home Department, Government Secretariat, Trivandrum. WP(Crl) 3/08 9 b) Representation meant for the Government of India should be addressed to the Secretary to the Government of India, Ministry of Finance, Department of Revenue, 6th Flor, 'B' Wing, Janpath Bhawan, Janpath, New Delhi – 110 001. c) Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, High Court of Kerala, Ernakulam. You are further informed that you shall be heard by the advisory board in due course if the Board considers it essential to do so or if you so desire.” The detenu has not sent any representation meant for the Central Government to the State Government, in accordance with the above instruction. So, the first ground urged by the petitioner fails. 9. The second contention is regarding furnishing of copies of some of the documents along with the grounds of detention in English. The detenu has admitted in Ext.P3 statement that he knows English and he studied up to Pre-degree. Therefore, it can be reasonably presumed that he has working knowledge of English. The petitioner submits, the detenu has retracted Ext.P3 statement, as evident from the bail applications submitted by him. We perused the bail application dated 12.7.2007, a copy of which is produced as Ext.P7. In the said bail application, the detenu has not stated anything about his knowledge of English or that the statement regarding the knowledge 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) 3/08 10 Mr.Raheem. When the statement was recorded, the SIO of the DRI cannot have any premonition that the detenu is going to be detained and he may be served with some documents in English. So, it can be presumed that the statement regarding knowledge of English was correctly recorded. So, we are 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 understand English. Therefore, the second ground raised against the detention is untenable in law. 10. The third point deals with the non-application of mind from the part of the detaining authority, made with reference to the grounds of detention. 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 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 your behalf on 12.07.2007 before the Additional Chief Judicial Magistrate, Court of Economic Offences, Ernakulam and I have considered the same. Xxxxx xxxxx xxxxx xxxxx 14. You have not retracted the statement you gave 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 WP(Crl) 3/08 11 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.Raheem A.M. And Sri.Thafsal under Sec.108 of the Customs Act.” According to the petitioner, if the detaining authority had gone through the bail applications, it would not have made a statement that the detenu has not retracted the statement given by him on 19.06.07. A close reading of para 14 quoted above would show that what was meant by the detaining authority is that when the detenu was produced before the court on 20.06.07, he did not make any retraction of the statement. He has not filed any formal petition before the DRI authorities retracting his statement. Those statements in para 14 are correct. The retraction was made only subsequently, in the bail applications filed on 4.7.2007 and 12.7.2007. So, the contention of the petitioner regarding non-application of mind, cannot be 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 may not cause any prejudice, will be sufficient to set aside the detention. Our liberal constitution protects not only those who respect its commands, but also those who design and execute plans to subvert it. But, that does not WP(Crl) 3/08 12 mean that this Court should put its common sense in cold storage, while dealing with the contentions of the detenu. We are of the view that none of the grounds urged is sufficient to interfere with the detention order or the order confirming it. In the result, the Writ Petition is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/