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CASE NO.: Appeal (crl.)  913 of 2003

PETITIONER: Safiya                                                   

RESPONDENT: Vs. Government of Kerala & Ors.                      

DATE OF JUDGMENT: 28/07/2003

BENCH: M.B. Shah &  Dr. AR. Lakshmanan.

JUDGMENT:

JUDGMENT  

(Arising out of Special Leave Petition (Criminal) No. 1215 of 2003)

Dr. AR. LAKSHMANAN, J.

Leave granted.

This appeal is directed against the final judgment and order dated  11.2.2003 passed by the High Court of Kerala in O.P. No. 29561 of 2002 filed  by the appellant herein, who is the wife of the detenu - T.P. Moideen Koya  who is under preventive detention under the COFEPOSA Act vide order of  detention dated 21.02.2001.

The case of the prosecution in brief is that on 18.08.2001 a search  was conducted by the Superintendent, Central Excise and Customs on the  residence of one Kunjumon.  In the search Indian and Foreign currencies and  Gold biscuits were found.  During the course of investigation, the statement of  Mohd. Mustaffa, driver and employee of the said Kunjumon and P.  Mohammed, the cousin of Kunjumon were recorded.  According to the  prosecution, the detenu is involved in dealing in smuggled goods and,  therefore, report was made to the detaining authority for detaining the detenu  under Section 3(i) (iv) of the COFEPOSA Act, 1974.  The detenu was  detained in execution of the order of detention on 04.09.2002 and detained in  Central Jail, Thiruvananthapuram.  The detenu submitted his representation  to the Detaining Authority and the Central Government and the same were  rejected.    

Safiya, the wife of the detenu, filed a writ petition before the High Court  of Kerala challenging the detention of her husband T.P. Moideen Koya (the  detenu) on the grounds that the order of detention of the detenu is primarily  based upon the statement recorded from Mohammed Mustaffa, an employee  of Kunjumon and that an order of detention was passed against the said  Mohammed Mustaffa and he was detained by an order of detention dated  17.10.2001 passed by the detaining authority.  The said case was placed  before the Advisory Board and the Advisory Board submitted in its opinion  that there is no ground for detaining the said Mohammed Mustaffa.  In  accordance with the report of the Advisory Board, the detaining Authority, the  State of Kerala, by its order dated 15.01.2002 revoked the detention against  the said Mohammed Mustaffa.  It is the case of the appellant that since the  facts relating to the said Mohammed Mustaffa is similar and arising out of the  same set of circumstances and the order of detention having been held to be  improper by the Advisory Board and subsequently having been revoked by  the State Government, the said facts and materials ought to have been  placed before the detaining Authority by the Sponsoring Authority and the

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same ought to have been considered before passing the order of detention  against the detenu herein.  The appellant also raised the contention that there  has been inordinate delay in considering and disposing of the representation  of the appellant.  It was also contended that there is no material to justify the  involvement of the detenu and, therefore, the order of detention is based on  no material.   

The High Court dismissed the writ petition holding that the delay in  disposing of the representation was reasonable.  The High Court passed a  detailed judgment considering all the contentions raised by the counsel for the  appellant before it including the rulings cited before it.   Aggrieved by the said  judgment, the present appeal has been filed before this Court.

We have perused the pleadings and the other Annexures filed along  with this appeal and also the counter affidavits filed by the State Government  of Kerala and the Government of India both in the High Court and also in this  Court.  We heard Mr. B. Kumar, learned senior counsel for the appellant and  Mr. R.N. Trivedi, learned Additional Solicitor General  for the Union of India  and Mr. T.L. Viswanatha Iyer, learned senior counsel for the State of Kerala.

Mr. B. Kumar after inviting our attention to the pleadings raised the  following three contentions:- 1.      Non-placing of the opinion of the Advisory Board which has opined  that there is no sufficient case for detention of the detenu  Mohammed Mustaffa involved in the same occurrence which  opinion was rendered even in December, 2001, long before the  passing of the order of detention in the instant case on 22.01.2002  amounts to non-placing of relevant and important document such  that the subjective satisfaction stands vitiated. 2.      There is inordinate delay in considering the representation of the  detenu. 3.      Several documents on which the grounds of detention are  substantially based are only in Malayalam and no translation  thereof into english has been provided and, therefore, the  consideration of the representation without taking into the  consideration of these vital material is no consideration in the eyes  of law as in all probabilities the person who dealt with the  representation and took a decision thereof on behalf of the second  respondent could not be knowing Malayalam.  Mr. Kumar also  submitted that in the facts disclosed in the grounds of detention it  would be a case of no material against the detenu and sweeping  allegations of violations of the Customs Act and dealing in  smuggled goods to a huge figure has been arrived at totally  unsupported by any material.  Therefore, he would submit that the  detention order is vitiated since the conclusion is not supported by  any material annexed to the grounds of detention.

Learned Additional Solicitor General appearing for the Union of India  submitted that the appeal is devoid of any merit or substance and deserves to  be rejected outright by this Court and that the delay, if any, on the part of the  Central Government has been properly explained in para 3 of its counter  affidavit filed in this Court.  He, therefore, submitted that the time of six days  taken by the competent authority was not a negligence or callous in action on  the part of the Central Government and since there has been no undue or  unexplained delay in disposing of the representation of the detenu, the appeal  is liable to be rejected by this Court.

Mr. T.L. Viswanatha Iyer appearing for the Government of Kerala drew  our attention to the relevant paragraphs in the counter affidavit and submitted  that the appellant has no case on merits and, therefore, is liable to be  dismissed.

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In regard to contention No.1, the answering respondent submitted that  the case against the detenu was not built upon the statement of Mohammed  Mustaffa alone.  The records clearly show that Mohammed Mustaffa was  dealing in gold biscuits and distributing tube money as instructed by  Kunjumon and that the business between Kunjumon and the detenu was not  done through Mohammed Mustaffa.  In our opinion, the revocation of the  detention order issued against Mohammed Mustaffa has no relevance as far  as the detenu T.P. Moideen Koya is concerned.  The detenu was personally  heard by the Advisory Board.  After hearing the detenu and perusing the  records, the Advisory Board opined that there were sufficient grounds for the  detention of the detenu.  Under the circumstances, we are of the opinion that  the non-placing of the order revoking the detention order of Mohammed  Mustaffa before the Advisory Board does not vitiate the detention order  issued against the detenu.  The detention order was issued after perusing the  relevant and material documents and after arriving at subjective satisfaction  of the authorities.  We are, therefore, of the view that the High Court has  rejected the said contention, rightly so in our opinion.

In regard to contention No.2 delay in consideration of representation,  the Central Government has clearly and explicitly explained the reasons for  the delay insofar as they relate to the Central Government.  It is seen from the  records produced that a copy of the representation dated 26.09.2002 in  Malayalam language of the detenu, sent by the Superintendent, Central  Prison, Thiruvananthapuram dated 26.09.2002 was received in the  COFEPOSA unit of the Ministry of Finance, Department of Revenue, Central  Economic Intelligence Bureau, New Delhi.  Parawise comments and the  English translation of the representation were called from the Sponsoring  Authority on the same day i.e. 30.09.2002.  The comments on the  representation along with English translation, sent by the Sponsoring  Authority vide their letter dated 04.10.2002 were received in the COFEPOSA  unit on 07.10.2002 (in between 05.10.2002 and 06.10.2002 were holidays,  being Saturday and Sunday).  The case filed along with relevant material was  submitted to the Under Secretary, COFEPOSA on 07.10.2002.  The Under  Secretary processed the case and put up to the Joint Secretary on the same  day i.e. 07.10.2002.  The Joint Secretary submitted the file to the Secretary,  Ministry of Finance, Department of Revenue on 07.10.2002 itself.  The  Secretary, Ministry of Finance, Department of Revenue, considered the said  representation on behalf of the Central Government and rejected the same on  17.10.2002 (in between 12th and 13th October, 2002 were holidays being  Saturday and Sunday and 14th and 15th October, 2002 were holidays being  Mahanavami and Dussehra festivals.  The file was received back from the  office of the Secretary, Revenue on 18.10.2002.  Memorandum of rejection of  representation was issued to the detenu herein through the concerned Jail  Authority at Thiruvananthapuram on 18.10.2002 and the same was received  by the detenu through the concerned Jail Authority on 21.10.2002.  The dates  and other details given above in the counter affidavit by the Central  Government would only show that there has been no undue or unexplained  delay in disposing of the representation of the detenu herein.  The said  contention is, therefore, rejected.

Regarding the third contention, we are of the opinion that the same  has no merits.  In this regard, it is submitted by the respondents that the  Detaining Authority of the Government of Kerala had forwarded to the Central  Government the report under Section 3(2) of the COFEPOSA Act, which  consisted of Detention Order, the ground of detention and relied upon  documents including the English translation of the documents which were in  Malayalam language.  Thus, the English translation of the Malayalam  representation of the detenu and the English translation of the documents  relied upon were available before the second respondent at the time of  consideration of the representation of the detenu was also available.   Therefore, the allegation of the petitioner that English translation of the  documents which were in Malayalam language has not been supplied to the

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second respondent is baseless.   

A careful perusal of the records placed before this Court would show  that there are enough materials to show the involvement of the detenu in the  smuggling activities.  The State Government (Detaining Authority) have  considered all the aspects and perused the relevant material documents  before issuing the detention order.  Such detention order was issued based  on the subjective satisfaction as to the necessity of detaining the detenu by  invoking the provisions of the COFEPOSA Act.  The detenu, therefore, in our  opinion, is not entitled to challenge the subjective satisfaction arrived at by the  detaining Authority in these proceedings.

Learned senior counsel for the appellant,  contended that there is non- application of mind on the part of the detaining Aauthority.  This contention  has no merits.  It is argued that the detention order was issued against the  detenu with a view to prevent him from dealing in smuggled goods otherwise  than by engaging in transporting or concealing or keeping smuggled goods.   A perusal of the representation submitted by detenu dated 26.09.2002 shows  that he has understood the grounds of detention properly and has made an  effective and meaningful representation for revoking the detention order.  The  translated version of the ground of detention has also been furnished to the  detenu.   While serving the grounds of detention on the detenu on  12.09.2002, he has made an endorsement to the effect that he has read and  understood the grounds of detention and he has no complaint in this regard.   We are not required to decide whether subjective satisfaction of the Authority  is justified or not, yet a  perusal of the records would reveal that the Detaining  Authority has considered all the relevant aspects borne out from the aforesaid  records before issuing the detention order and after arriving at the subjective  satisfaction as to the necessity of detaining him by invoking the provisions of  the COFEPOSA Act.  The seized documents show that the detenu in this  case had dealt with 290 smuggled gold biscuits valued at Rs. 1.5 crores with  Kunjumon and had carried out transactions worth Rs. 18 crores during the  period 01.08.2001 to 15.08.2001.  Mr. Bapu who was involved in the  contribution of tube money stated that the detenu is an accomplice of  Kunjumon and he had telephoned him at his residence on the No. 370444  appearing in his note book.

It is also seen from the counter affidavit filed by the Government of  Kerala in this Court (para 2.11) that about 9,300 smuggled gold biscuits were  transported by Kunjumon as per the documents seized from his residence  and out of this the detenu T.P.Moideen Koya had transacted about 290 gold  biscuits valued approximately Rs. 1.5 crores.  Out of 40 crores of Hawala  transactions made by Kunjumon,. the detenu Moideen Koya had transacted  about Rs. 18 crores.  This, according to the respondent, is a very vital  evidence establishing their smuggling activities.

As already seen, the case against the detenu is not built upon the  statement of Mohammed Mustaffa alone.  The said Mustaffa was also dealing  in gold biscuits and distributing tube money as instructed by Kunjumon.   

Since we are disposing of the appeal on factual basis and on the basis  of the records placed before us, we are not referring to the judgments cited by  the learned counsel for both the sides.

The liberty of a citizen is undoubtedly very important.  It is our duty to  ensure that there is strict compliance with the provisions of law.  In our view,  strict compliance of the provisions of law has been made.  The Court, in our  opinion, cannot lose sight of the fact that those who commit economic  offences do harm to the national interest and economy.  Thus, the High Court,  while examining the case, has taken a cumulative view of the situation and

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had seen all the relevant facts.

On a consideration of the totality of the circumstances, the High Court  came to the conclusion that the detenu has violated the provisions of law and  his activities are not in the larger national interest and that the Court should  be slow to come to the aid of the detenu.  We agree with the conclusion  arrived at by the High Court.

The instant appeal filed by the wife of the detenu is totally devoid of  any merit or substance and as such we have no hesitation in rejecting the  same.  The appeal shall stand dismissed.