IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 OP.No. 31909 of 1999(W) ----------------------- PETITIONER: ------------ SAIFUDEEN, S/O.SHAHUL HAMEED, MIZAM MANZIL, KODUVAZHAVANNOOR P.O., PULIMATH (VIA), THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENTS: ------------- 1. SECRETARY TO GOVERNMENT, HOME (S.S.A.) DEPARTMENT, STATE OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COLLECTOR OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN – 18. 3. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI. BY GOVERNMENT PLEADER SRI.K.SANDESH RAJA FOR R1 & R3 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL FOR R2 & 4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP 31909/1999 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE STATEMENT. EXT.P2 - TRUE COPY OF THE STATEMENT. EXT.P2(a) – TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD. EXT.P2(b) – TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD. EXT.P3 - TRUE COPY OF THE NOTICE DATED 2.3.1990. EXT.P4 - TRUE COPY OF THE NOTICE DATED 27.6.1990. EXT.P5 - TRUE COPY OF THE REPLY LETTER NO.22849/SSA1/93/HOME DATED 29.4.93 FROM THE COMMISSIONER & SECRETARY TO GOVERNMENT TO THE PETITIONER. /TRUE COPY/ K.BALAKRISHNAN NAIR, J. ----------------------------------------- O.P. NO. 31909 OF 1999-W ----------------------------------------- JUDGMENT The petitioner was involved in an incident of smuggling gold biscuits in 1990. On 28.1.1990, when the petitioner was coming out of the Thiruvananthapuram International Airport, after his return from the Gulf, where he was employed, he was intercepted by the Customs Officials and eight gold biscuits weighing 750 gms. were allegedly recovered from his baggage. He was arrested on the very same day. The petitioner alleges that Ext.P2 confession statement was extracted from him under threat and coercion. Later, he was produced before the Economic Offences Court, Ernakulam. He was enlarged on bail on 1.2.1990. He submits, on the very same day, he filed Ext.P1 retraction statement before the competent authority, stating that he gave the confession statement Ext.P2, only under coercion. It was not one given voluntarily. Later, the petitioner came to know some time in 1992 that the Government have passed a detention order against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). He filed a OP 31909/99 2 detailed representation against the said order. The same was rejected by the Government by a bald and cryptic communication Ext.P5 dated 29.4.1993. The petitioner faced trial for the above stated incident of smuggling gold biscuits. He was convicted by the trial court on 9.4.2003. The Sessions Court dismissed the appeal and the Criminal Revision filed by him, is stated to be pending before this Court. 2. The petitioner submits, the detention under Section 3(1) of the COFEPOSA Act passed is to prevent him from indulging in smuggling activities or other objectionable activities, which will affect the economy of the country and not as a punitive measure. Therefore, his detention after nine years of the passing of the order, is untenable. He submits, he was always available in the country and was for some time in Mumbai. Thereafter, he was staying with his family in his native place. He has not indulged in any smuggling activities all these years. The respondents did not take any steps to detain him. Therefore, the detention of the petitioner after the lapse of a long period of the passing of the detention order is impermissible and the same will violate his fundamental rights under Article 21 of the Constitution of OP 31909/99 3 India, it is submitted. The learned senior counsel for the petitioner relied on the decision of a learned Single Judge of this Court in Siva Prasad v. State of Kerala [1997(2) KLT SN 47, Case No.49]. In that case, this Court held that there was inordinate delay of 14 years in execution of the detention order. There was no material on record to show that the petitioner therein indulged in smuggling activities and therefore, the execution of the detention order after a long delay, was unjustified. The learned senior counsel also relied on the decision of the Apex Court in Pawan Bhartiya v. Union of India [2004 SCC (Cri) 177]. It was a case where six persons were involved in a smuggling incident. All of them paid the customs duty. Taking into account the said fact, the detention orders against five of them were revoked. But, in the case of the petitioner therein, steps were taken to execute the detention order. So, the order was challenged before the Delhi High Court. The Delhi High Court dismissed the writ petition. The Apex Court took the view there there was no reason to discriminate the appellant in the matter of cancellation of the detention order. So, having regard to the special facts, the Apex Court interfered OP 31909/99 4 with the order of detention at the pre-detention stage. 3. The respondents 1 and 3 have filed a counter affidavit, supporting the impugned order. They have also filed an additional counter affidavit, in which it is stated that the writ petition is liable to be dismissed for non-production of the detention order. They also rely on certain decisions of the Apex Court as well as that of this Court, wherein it was held that a detention order should not be interfered with at the pre-execution stage, except on five specified grounds. In this case, none of those grounds is available, it is submitted. So, the petitioner has to surrender and only thereafter, he can seek reliefs, it is pointed out. 4. The learned Government Pleader relied on the decisions of this Court in Secretary, Home Department v. Abdul Azeez [1995(1) KLT 709] and Union of India v. Ali Mohammed [2002(2) KLT 643]. Reliance was also placed on the decision of the Apex Court in Union of India v. Vidya Bagaria [(2004)5 SCC 577]. 5. Going by the decisions cited by both sides, I feel that the point raised by the petitioner is covered against him by the decision of the OP 31909/99 5 Apex Court in Union of India v. Vidya Bagaria (supra). In that decision, the Apex Court stated the grounds available for interference with an order of detention at the pre-execution stage. They are: (1) The impugned order is not passed under the Act, under which it is purported to have been passed. (2) It is stated to be executed against a wrong person. (3) It is passed for a wrong purpose. (4) It is passed on vague, extraneous and irrelevant grounds. (5) The authority which passed it had no authority to do so. Among the aforementioned grounds, grounds 1, 2 and 5 are absent in this case. Whether grounds 3 and 4 are available, is a matter which can be examined, if only the order is produced before this Court. In this case, the impugned detention order is not produced by the petitioner. The decision of the Apex Court relied on by the learned senior counsel for the petitioner is a decision rendered on the special facts of that case. The decision of the learned Single Judge, relied on by the learned senior counsel, does not lay down the correct legal position, in view of the decision of the Apex Court in Union of India v. Vidya Bagaria OP 31909/99 6 (supra). I am absolutely bound by the principles laid down by the Apex Court in that decision. Accordingly, the Original Petition is dismissed. But, this will not affect the contentions of the petitioner regarding the detention order, if he challenges the same after the execution of it. 21st August, 2008. K.BALAKRISHNAN NAIR, JUDGE. Nm/ OP 31909/99 7 K.BALAKRISHNAN NAIR, J. ------------------------------------- O.P.NO.31909/1999-W ------------------------------------ JUDGMENT 21.08.2008.