A C RAZIA Vs. GOVERNMENT OD KERALA

JUDGEMENT

(1.) Leave granted in S.L.P.(crl.) No. 153 of 2003. Questioning the detention of the petitioner's husband by name, P. Mohd. Kutty under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), Writ Petition (Crl.) No.6 of 2003 has been filed by her praying for the issuance of a writ of habeas corpus. The detention order was also challenged in the High Court of Kerala by way of a petition filed under Article 226. The Writ Petition was dismissed on 29.11.2002. The said judgment has been challenged in the Special Leave Petition. The Special Leave Petition came up for hearing before a bench consisting of Rajendra Babu, J. and G.P. Mathur, J. Rajendra Babu, J. allowed the writ petition by quashing the order of detention. However, Mathur, J. held that the writ petition and the SLP were liable to be dismissed. In view of this difference of opinion, the matter has been placed before this three Judge Bench.

(2.) On 24.12.2000 the baggage of one Anodiyil Mammu, who was waiting to take the flight to Dubai, was inspected at Trivandrum International Airport. He is related to the detenu. On such inspection, foreign currencies were found in a brief case and various other articles which he was carrying. Some of the foreign currency notes were concealed in a cardboard carton. The foreign currency was seized and the statement of Mr. Mammu was recorded under Section 108 of the Customs Act. He stated that the foreign currency was entrusted to him by P. Mohd. Kutty i.e. the detenu for conveying it to Dubai and handing it over to one Shafeek for which he was to be paid some remuneration. He gave various details as to how and from where he got the carton and foreign currency. On the same day and the next day, the statements of Mohd. Kutty, the detenu and various other persons, who were directly or indirectly involved in this operation, were recorded under Section 108 of the Customs Act and they were substantially in conformity with the version of A. Mammu. Initially, Mohd. Kutty confessed to his involvement. However, the statements were retracted later on. Anodiyil Mammu claimed the ownership of foreign currency in his representation dated 15.01.2001 and thus retracted from earlier statement. On the basis of the information together with the supporting material received from the Directorate of Revenue (Intelligence), the order of detention was passed by the Government of Kerala (Home Department) on 19.4.2001. However, the detenu could only be arrested on 24.6.2002. The detenu was served with the order and grounds of detention together with the copies of various documents referred to in the grounds. The representation addressed to the detaining authority was sent by the detenu's wife on 13.7.2002 and the same was rejected by the State Government. The representation addressed to the Central Government was also rejected on 29.7.2002. The case of the detenu was referred to the Advisory Board and on the basis of the report received, the Government confirmed the detention order on 6.9.2002. At that stage the writ petition under Article 226 was filed in the Kerala High Court challenging the detention.

(3.) The only point raised in the course of the arguments in the High Court was that the documents furnished to the detenu were not translated into Malayalam on account of which he was unable to make proper representation against his detention. This contention was rejected by the Division Bench of the High Court, relying on the averments in the counter-affidavit filed by the State. The High Court referred to the fact that the documents duly translated into Malayalam were in fact furnished to the detenu and he acknowledged the same on 24.6.2002. The High Court also observed that the detenu was familiar with the English language. The contention, which was rejected by the High Court, has not been reiterated before this Court. However, the only contention urged is that the disposal of the representation by the Central Government was not proper.