IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 WP(Crl.).No. 138 of 2007(S) --------------------------- PETITIONER: ------------------- P.K.UMAIBA, W/O K.P.ABDUL MAJEED, "SONA" KARIKAMKULAM, KARAPARAMBA, YENGERI, KOZHIKODE DISTRICT. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA RESPONDENTS: ----------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, (CENTRAL ECONOMIC INTELLIGENCE BUREAU), 6TH FLOOR, B WING, JANAPATH BHAVAN, NEW DELHI- 110 001. 2. THE JOINT SECRETARY, CENTRAL ECONOMIC INTELLIGENCE BUREAU, DEPARTMENT OF REVENUE, 6TH FLOOR, "B" WING, JANAPATH BHAVAN, JANAPATH, NEW DELHI- 110 001. 3. THE SECRETARY, CENTRAL ECONOMIC INTELLIGENCE BUREAU, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, 6TH FLOOR, "B" WING, JANAPATH BHAVAN, JANAPATH, NEW DELHI- 110 001. BY ADV. SRI. V.T. GOPALAN, ADDL. SOLICITOR GENENRAL . BY ADV. SRI.P.PARAMESWARAN NAIR, ASST.SOLICITOR GENERAL THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 29.11.2007, THE COURT ON 08/01/2008 DELIVERED THE FOLLOWING: WP(CRL) 138/2007. APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE COPY OF THE ORDER OF DETENTION F.NO.673/11/2003-CUS.VIII DATED 19.11.2003. EXT. P2 : TRUE COPY OF THE GROUNDS OF DETENTION SERVED ON THE DETENU. EXT. P3 : TRUE COPY OF THE REPRSENTATION DATED 20.4.2007 ADDRESSED TO THE 2ND RESPONDENT. EXT. P4 : TRUE COPY OF THE REPRESENTATION DATED 27.4.2007 ADDRESSED TO THE 3RD RESPONDENT. EXT. P5 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DETENU BEFORE THE COFEPOSA ADVISORY BOARD DATED 30.4.2006. EXT. P6 : TRUE COPY OF THE REPRESENTATION DATED 2.5.2007 FILED BY THE DETENU BEFORE THE CABINET MINISTER OF FINANCE. EXT. P7 : TRUE COPY OF THE FACTUM OF REJECTION DATED 11.5.2007. EXT. P8 : TRUE COPY OF THE COMMUNICATION DATED 22.5.2007 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA. EXT. P9 : TRUE COPY OF THE INFORMATION DATED 23.5.2007 ISSUED TO THE DETENU BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA. EXT. P10 : TRUE COPY OF THE PETITION SUBMITTED BY THE DETENU BEFORE THE ADVISORY BOARD DATED 28.5.2007. EXT. P11 : TRUE COPY OF THE POSTAL RECEIPTS OF REGISTRATION. EXT. P11 : TRUE COPY OF THE EXTRADITION TREATY SIGNED BETWEEN INDIAN AND U.A.E. ON 25TH OCTOBER, 1999. (PRODUCED IN I.A. 14164 OF 2007). EXT. P12 : TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN INDIA AND U.A.E. REGARDING THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS. EXT. P13 : TRUE COPY OF THE PASSPORT NO.K. 315561 DATED 6.12.1991 FROM PASSPORT OFFICE, KOZHIKODE ISSUED TO THE PETITIONER. EXT. P14 : TRYE COPY OF PASSPORT NO.A8297824 RENEWED FROM THE CONSULATE OF INDIA AT DUBAI DATED 3.2.2000. ANNEXURE A : TRUE COPY OF LETTER SENT BY THE ADDL. SOLICITOR GENERAL OF INDIA SHRI V.T. GOPALAN TO ASSISTANT SOLICITOR GENERAL, HIGH COURT OF KERALA DATED 30.10.2007. ANNEXURE B : TRUE COPY OF LETTER DATED 24TH OCTOBER, 2007 SENT BY A.P. KALA, SPECIAL SECRETARY AND DIRECTOR GENERAL, MINISTRY OF FINANCE, GOVT. OF INDIA. ANNEXURE C : TRUE COPY OF LETTER OF APPROVAL DATED 26.10.2007 ISSUED BY THE DEPARTMENT OF LEAGL AFFAIRS, JUDICIAL SECTION. RESPONDENTS' EXTS: EXT. R2(A) : TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 146/04 DATED 1.10.2004 OF THE HON'BLE HOIGH COURT, BOMBAY. EXT. R2(B) : TRUE COPY OF THE COMMON JUDGMENT OF THE HON'BLE COURT, MADRAS IN W.P.(C) NOS.1818/03, 1819/2003 & 173/04 DATED 16.8.2004. ANNEXURE R(I) : TRUE COPY OF ORDER UNDER SECTION 7(I)(B) OF COFEPOSA ACT PUBLISHED IN THE GAZETTE OF INDIA RELATING TO SRI ASARULLA RAKA KHAN. ANNEXURE R (II) : TRUE COPY OF REPRESENTATION DATED 20.12.2005 OF THE PETITIONER ADDRESSED TO RESPONDENTS. ANNEXURE R (III) : TRUE COPY OF PROCEEDINGS IN RESPECT OF ACTION INITIATED UNDER SECTION 7(i)(a) OF THE COFEPOSA ACT IN THE COURT OF CHIEF JUDICIAL MAGISTRATE, KOZHIKODE. H.L. DATTU, CJ. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(CRL) No.138 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2008. JUDGMENT K.M. JOSEPH,J, Petitioner questions the detention of her son Sri.Asarulla Rakha Khan, herein after referred to as 'the detenu', pursuant to Ext.P1 detention order dated 19.11.2003. She seeks a writ of Habeas Corpus or other appropriate writ directing the respondents to produce the detenu and to release him. Exts. P7 to P9 are also challenged. 2. Ext.P2 dated 19.11.2003 contains the grounds on which Ext.P1 detention order has been issued. The detenu submitted Ext.P3 representation dated 20.4.2007. It is seen addressed to the Joint Secretary of the Central Economic Intelligence Bureau (respondent No.2). Ext.P4 is the representation addressed by the detenu dated 27.4.2007. It is addressed to the third respondent, who is the Secretary, Central Economic Intelligence Bureau in the Department of Revenue. The detenu also addressed Ext.P5 dated 30.4.2007 before the COFEPOSA Advisory Board. Besides this, he is stated to have addressed Ext.P6 to the Cabinet Minister of Finance dated 2.5.2007. Ext.P7 is memorandum dated 11.5.2007 informing the detenu that his representation dated 20.4.2007 signed on 27.4.2007 WP(Crl.) 138/2007. 2 by him has been rejected by the second respondent. Ext.P8 evidences rejection of Ext.P4 representation dated 27.4.2007 signed on 7.5.2007 by the detenu by the second respondent. Ext.P9 is dated 23.5.2007 and evidences rejection of Ext.P4 representation given by the detenu by the Special Secretary and Director General, Central Economic Intelligence Bureau, Department of Revenue. 3. We heard Sri. M.K.Damodaran, Senior Counsel appearing on behalf of the petitioner and Sri. V.T.Gopalan, learned Additional Solicitor General appearing on behalf of the respondents. 4. It is submitted on behalf of the petitioner that there is no basis for issuing the order of detention. He would submit that the order of detention betrays non-application of mind. He would submit that going by Exts.P1 and P2 the order of detention is seen issued under Section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (herein after referred to as 'the COFEPOSA Act'). He would submit that the detenu was in fact having his permanent residence in Dubai. He would submit that there is no authority under Section 3 of the Act to detain a person, who is permanently residing outside India. He would submit that the purpose of an order of detention passed under the Act, going by the language of Section 3 of the Act, is to prevent the person from acting in any manner prejudicial to the conservation or augmentation of foreign WP(Crl.) 138/2007. 3 exchange or with a view to prevent him from carrying on activities, which are elaborately mentioned in Section 3. He would submit that, therefore, there is no authority under Section 3 to order the detention of a person, who, at the time of passing of the order is admittedly residing beyond the territories of the Union of India. He would further submit that this is a case where Ext.P1 order of detention is dated 19.11.2003. However, the actual detention of the detenu was effected only on 9.4.2007. He would therefore contend that having regard to the well settled principle that an order of detention executed with delay is vitiated, this is a clear case where the order of detention being executed after more than three years is palpably unsustainable. He would further contend that having regard to the facts as brought out, there was delay in fact in passing the order of detention in question. Sri. M.K.Damodaran would further contend that having regard to the mandate of Article 22(5) of the Constitution as also the provisions contained in Section 3(3) of the COFEPOSA Act, this is a case where the mandate of law stood violated. He would contend that Ext.P2 grounds of detection would show that detenu was advised that he may submit his representation through the Jail authorities to the following persons: The representation meant for the detaining authority was to be addressed to the Joint Secretary, Central Economic Intelligence Bureau of the Department of Revenue, Ministry of Finance,namely, the second respondent. The WP(Crl.) 138/2007. 4 representation meant for the Central Government was to be addressed to the Secretary, Department of Revenue, namely, the third respondent. The representation meant for the Advisory Board was to be addressed to the Chairman of the COFEPOSA Advisory Board, Delhi High Court. It is submitted that Ext.P3 was addressed by the detenu, accordingly, to the second respondent and Ext.P4 was addressed to the third respondent. He would point out that there is violation of law in so far as the representation which is addressed to the third respondent came to be disposed of by the Special Secretary and Director General of the Department of Revenue. The third respondent himself should have considered the representation of the detenu and there was no authority with the Special Secretary and Director General to consider his representation, he contends. He would also submit that going by Ext.P8 it would appear that Ext.P4 representation, which, the detenu addressed to the third respondent was not only not considered by him, but was considered by another authority, namely, the detaining authority, who has proceeded to reject the representation. It is submitted that the detenu had not addressed Ext.P4 to the detaining authority. Therefore, the alleged consideration and rejection of Ext.P4 representation by the detaining authority was wholly without warrant and illegal and therefore vitiates the detention of the detenu. He would further contend that the detention of the detenu is clearly vitiated for WP(Crl.) 138/2007. 5 the reason that a perusal of Exts.P7 to P9 would show that the representations have been rejected in a mechanical manner. He would contend that it is settled proposition of law that Article 22(5) of the Constitution and Section 3(3) of the Act contemplate a real and meaningful consideration of the representation of the detenu, which is plainly absent in this case. Thereafter, the Senior Counsel would further contend that there is inordinate delay in the disposal of the representations filed by the detenu. The first representation (Ext.P3) is seen dated 20.4.2007. It is seen from Ext.P7 that Ext.P3, which is addressed to the detaining authority is rejected by Ext.P7 dated 11.5.2007. It is contended that thus, there is delay of nearly twenty one days in considering the representation of the petitioner. Likewise, it is pointed out that Ext.P4 representation dated 27.4.2007 is disposed of only on 22.5.2007. It is further contended that contrary to the settled mandate of law that the detaining authority should furnish the materials which are relied on in the order of detention, there has been a breach in the facts of this case, as the only material, by which the detenu is said to be connected with the case, namely, the telephone bills referred to in paragraph 24 of Ext.P2, were not supplied to the detenu. He would further submit that there is really no basis for invoking the power under Section 3 of the COFEPOSA Act, as the allegations in the order relate to the remittances in Indian rupees and therefore this is not a case WP(Crl.) 138/2007. 6 where it is open to the authorities to invoke Section 3, which is framed with the object of inter alia checking undesirable dealings in foreign exchange. Sri. M.K.Damodaran would submit that there is no authority under Section 3 COFEPOSA Act to proceed against a non-resident Indian. Sri.M.K.Damodaran also contended that under the terms of Ext.P11 treaty and Ext.P12 agreement, there was no difficulty for the respondents to get the assistance of the UAE Government to take the detenu into custody in execution of Ext.P1 order. It is also contended that had there been a non- bailable warrant and steps taken under Sections 82 and 83 of the Criminal Procedure Code, there would have been no difficulty for apprehending the detenu from UAE, which is a contracting state in Exts. P11 and P12. It is also contended that steps could have been taken under the Passports Act, if the respondents were serious in executing the order of detention. 5. Per contra, learned Additional Solicitor General would contend that there is no merit in the writ petition. A counter affidavit has been filed and this has been followed up, apparently as per court direction, by the filing of an additional counter affidavit. He would contend that a perusal of the grounds would clearly show that there was indeed legal basis for invoking Section 3 of the COFEPOSA Act. He would submit that having regard to the phraseology of Section 3 of the COFEPOSA Act, there was authority with the detaining authority, if grounds exist, subject to the WP(Crl.) 138/2007. 7 satisfaction of the detaining authority to detain any person including a foreigner. When the detaining authority is the Central Government, there can be no legal hurdle in passing an order of detention, even though the person to be detained is residing permanently beyond the territories of the Government, he contends. He would submit that a perusal of Section 6 would put matters beyond the region of doubt. Section 6 reads as follows: “6. Detention order not to be invalid or inoperative on certain grounds-No detention orders shall be invalid or inoperative merely by reason- (a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention, or (b) that the place of detention of such person is outside the said limits.” He would contend that undoubtedly as far as the Central Government is concerned, the limits of the territorial jurisdiction of the Government is the whole territory comprised within the Union of India. Therefore, having regard to Section 6 of the COFEPOSA ACt, an order of detention shall not be in-operative or invalid merely for the reason that the proposed detenu is outside India when the order is passed and there is no merit in the petitioner's contention, he points out. He would submit that any other view would make Section 6 otiose. In regard to Clause (b) of Section 6 of COFEPOSA Act, he would submit that this would apply in respect of a WP(Crl.) 138/2007. 8 detention made by the State Government. He would submit that there were several materials to order detention of the detenu in this case. He reminded the court that what is necessary to pass a valid order of detention is only the existence of subjective satisfaction of the detaining authority. As far as delay in considering the representation is concerned, it is stated in the affidavit that though Ext.P3 representation, addressed to the detaining authority concerned, is dated 20.4.2007, it was signed by the detenu on 27.4.2007. It was received in the Ministry on 2.5.2007. Comments were called for from the sponsoring authority on 3.5.2007. Thereafter, a reminder was issued on 9.5.2007 to the Sponsoring Authority and on 10.5.2007 the comments were received in the Ministry. The comments were processed and was put up for the decision of the detaining authority, who considered and rejected the same on 11.5.2007. It is their case that as far as Ext.P4 representation dated 27.4.2007 is concerned, it was considered by the detaining authority independently. The representation, Ext.P4, though dated 27.4.2007, was signed by the detenu on 7.5.2007, it was received in the Ministry on 10.5.2007. Comments were called for on 11.5.2007. There was reminder sent on 18.5.2007 to the Sponsoring authority. Thereafter comments were received on 21.5.2007 by the Ministry, comments were processed on 22.5.2007 and decision taken by both the detaining authority and also the Special Secretary cum Director WP(Crl.) 138/2007. 9 General on 22.5.2007. 6. As regards the contention of the petitioner that the third respondent, Secretary, to whom Ext.P4 representation was addressed, has not considered the representation, but the Special Secretary has considered it, to whom it was not addressed, it is submitted that in partial modification of the delegation of the powers contained in his order dated 22.4.1998, the Minister of Finance, Government of India ordered the vesting of the power in the Central Government in relation to the provisions of the Act in regard to Section 11 with the Secretary or Special Secretary cum D.G., CE.IB in the Department of Revenue, Ministry of Finance. This vesting of powers in the Secretary or Special Secretary under Section 11 is stated to be on 2.9.1998. Therefore it is contended that the consideration of the representation by the Special Secretary was perfectly valid and strictly in accordance with Section 3 of the COFEPOSA Act. He would submit that though Exts.P7 to P9 are signed by the Under Secretary, they are only decisions taken by the appropriate authorities, which are communicated by the Under Secretary in accordance with the Manual of Office Procedure and there is no merit in the contention of the petitioner that the competent authority, to whom the representations were addressed, has not considered his representations. He would further contend in reply that there was no delay in passing the order of detention. He would WP(Crl.) 138/2007. 10 contend that this is a case where a number of follow up actions had to be taken from the date of the incident, that is 11.4.2000 till 27.11.2003. Synopsis of the dates and the dates of action taken are given in the additional counter affidavit. He would point out that as stated in Ext.P2 order of grounds of detention, the matter was fairly complicated, the amount involved was huge and there had to be proper care exercised in collecting information and evaluating the same before an order of detention could be passed against the detenu. Regarding the contention of the petitioner that there was delay in executing the order of detention, it is contended that though the order of detention was passed on 19.11.2003, the detenu came to India for the first time after the date of the order only on 9.4.2007. He came to be arrested immediately and he has been in detention ever since. It is brought to our notice that there was no delay at all in executing the order of detention. He would submit that this is a case where it is knowing fully well that there is an order of detention, the detenu continued to keep away from the Indian soil and he points out the petitioner's representation in support thereof. He would submit that it would not be correct to contend that there is a rupture in the link by reason of the date of actual detention. He would submit that this is a case where action was taken under Section 7 of the COFEPOSA Act. The detenu instead of responding to the order of detention, chose to remain away and WP(Crl.) 138/2007. 11 absconded thereby preventing the execution of the order. He would therefore submit that the order of detention could not be attacked on the ground of delay in effectuating it, as the delay in effectuating the order of detention was solely on the ground of the conduct of the detenu in remaining beyond the territory of India. He would contend that there is no merit in the complaint of the petitioner that the detenu was not supplied with the telephone bills referred to in paragraph 24 of Ext.P2 grounds of detention. According to respondents, what was before the detaining authority was only the scrutiny report of the bills. That scrutiny report was made available to the detenu also. He would also contend that it is pertinent to note that there is no request by the detenu to be served with the bills. No doubt, learned Additional Solicitor General would fairly submit that it is the law that if any document is relied on by the detaining authority for ordering detention, even without any request from the detenu, it is incumbent upon the authority to supply the detenu with such materials. It makes no difference that the detenu has not made any request to be supplied with the same. But it is submitted on behalf of the respondents that in the facts of this case, in so far as the bills as such were not before the detaining authority, there is no violation of the constitutional mandate. He would submit that there is no merit in the contention of the petitioner that the representations were disposed of in a mechanical manner. WP(Crl.) 138/2007. 12 According to him, the decision of the Apex Court has established the principle that an order disposing a representation by a detenu need not contain any reasons. What is required is only that there should be a proper consideration of the representation made by the detenu. He would submit that the authorities, who have considered the representations are authorities well versed with the matters and on the one hand they are expected to pass orders expeditiously, and on the other hand there should be a proper consideration of the representation, and therefore a balance has to be struck and the files would indicate, according to the Additional Solicitor General, that there has been proper consideration of the representations in the facts of this case. He would submit that the detaining authority came to consider Ext.P4 representation only on the basis of the principle established by the Apex Court in Smt. Gracy v. State of Kerala (1991 (2) SCC 1), which is to the effect that when a representation is addressed to the Advisory Board, there is a duty cast on the detaining authority also to independently consider the same. He would point out that in the letter of the Superintendent of Central Prison accompanying the representation dated 27.4.2007, there is a copy marked to the Chairman of the Central Advisory Board and it was in such circumstances the detaining authority also proceeded to independently consider Ext.P4 representation and reject it. He would submit that there is WP(Crl.) 138/2007. 13 no prejudice at all at any rate caused to the detenu by the fact that the detaining authority has also considered Ext.P4 representation and rejected it. This was for the reason that apart from the detaining authority, the Central Government acting through the Special Secretary, who was duly authorised has independently considered the representation of the detenu and rejected it. He would contend that the order of detention is passed in exercise of jurisdiction of suspicion. It is not punitive. While all the safeguards vouch safed to the detenu under the Constitution and under the Act has to be scrupulously followed, which has been done in this case, the courts would be loathe to interfere with the order of preventive detention, which is to be passed on subjective satisfaction, he submits. He would submit that while subjective satisfaction is not to be confused with acting on the ipse dixit of the authority, its validity cannot be impugned except in a case where there are no materials at all or with the materials on record a view which is perverse has been adopted. He would submit that none of the contingencies, which imperil an order of detention exist in the facts of this case. 7. Both parties referred to a large body of case law. (1) Non-supply of documents. (i) Learned counsel for the petitioner sought to draw assistance from the following decisions of the Apex Court to buttress his WP(Crl.) 138/2007. 14 contention that non-supply of the telephone bills was fatal to the validity of the order of detention. (ii) In Icchu Devi v. Union of India (AIR 1980 SC 1983) the Apex Court has inter alia held as follows: “If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient