IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 61 of 2009(S)
1. MOIDEEN MUNNAKKAPARAMBIL BAVU,
... Petitioner
Vs
1. STATE OF KERALA,REP.BY THE SECRETARY TO
... Respondent
2. THE UNION OF INDIA, REP.BY THE SECRETARY
3. THE SUPERINTENDENT,CENTRAL PRISON,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice KURIAN JOSEPH
Dated :24/09/2009
O R D E R
S.R. Bannurmath, C.J. & Kurian Joseph, J.
------------------------------------------------------------------
W.P.(Crl) Nos.61/2009-S, 50/2009-S, 52/2009-S & 67/2009-S
------------------------------------------------------------------
Dated, this the 24th day of September, 2009
JUDGMENT
S.R. Bannurmath, C.J.
Since all these habeas corpus writ petitions arise
from the same set of facts and as the grounds of detention
against all the detenus is same, for the purpose of
consideration of common questions of law and facts argued,
with the consent of learned counsels on both sides all these
writ petitions are taken up for consideration together and
being disposed of by the common judgment.
2. The facts are common. However, individual
acts and the arguments in respect of individual detenu,
wherever necessary, are dealt with separately in this
judgment itself.
3. One Muhammed Alshab is the detenu in W.P.
(Crl.) No.61 of 2009 and alleged to be the main culprit. The
WP(Crl).No.61/2009 &
connected cases – 2 –
writ petition is filed by his father, challenging the detention
order.
4. The allegations against the said detenu
Muhammed Alshab are as follows.- On a specific
intelligence report, the Senior Intelligence Officer,
Directorate of Revenue Intelligence, Calicut with his team
checked the passengers arriving at Karipur International
Airport, Calicut at about 0540 hours on 16.08.2008,
especially of Flight RAK Airways Flight RT 0601T. As the
Senior Intelligence Officer and his team were checking the
travel documents of the passengers, the detenu Muhammed
Alshab, who was one of the passengers arrived by the said
Flight, was intercepted with a dark blue coloured strolley
bag, one cardboard carton and one zipper bag while he was
getting out of the exit gate. On enquiry, he disclosed his
name and stated that he had no undisclosed items with him.
WP(Crl).No.61/2009 & connected cases - 3 -
He produced his Passport, Electronic Air Ticket, Economy
Class Boarding Pass, Baggage tags and Customs Gate Pass.
On search of the cardboard cartons, it was found that they
contained fake Indian currencies for a total face value of
Rs.72,50,000/- (Rupees seventy two lakhs and fifty
thousand only). On further enquiry, the detenu said to have
disclosed that he had visited Dubai on the basis of Visiting
Visa sponsored by a man from Kerala, India, named Abdul
Malik (on whose behalf W.P.(Crl.)No.50 of 2009 has been
filed), who had provided him a job and accommodation. It is
further stated that one or two days earlier to 16.08.2008,
the said Malik had contacted the detenu on his mobile phone
and asked him to go to Calicut urgently and directed him to
take some money with him. He was further instructed that
one Majeed and another person by name Rafi would meet
him at the place where the detenu was residing at Dubai.
WP(Crl).No.61/2009 & connected cases - 4 -
They accordingly handed over to him one cardboard carton
and a strolley bag and directed him to hand over those bags
to one Sajin and Babu, who would be waiting outside the
Airport at Calicut and to hand over the money to them.
According to the case of the Detaining Authority, the said
Sajin and one Abdul Malik were caught outside the Airport,
who were said to have been waiting for the arrival of the
present detenu, and recorded their statements also under
Section 108 of the Customs Act. The currencies were
scrutinized by the officers of the Reserve Bank of India,
Thiruvananthapuram and found to be fake or counterfeit
currencies. Search at the residences of these detenus were
carried out. After their arrest, the detenus filed Bail
Applications and the same were rejected. Thereafter, the
proceedings under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974
WP(Crl).No.61/2009 &
connected cases – 5 –
(“COFEPOSA Act” for short) were initiated and detention
order came to be passed on 4.10.2008 and the same was
confirmed by the Advisory Board also. It is this detention
order which is the subject matter of the present writ
petitions.
5. Taking us through the detention order, the
grounds therein and various documents accompanying the
same, Shri. Kumar, learned Senior Advocate, vehemently
contended that the impugned order of detention is illegal
and arbitrary and vitiated by the contravention of the
provisions of the Act and the Constitution of India. It is
mainly contended that there is no reference as to the
retraction of the alleged confessional statements recorded.
It is submitted that as per Exhibits P6 to P9, the Bail
Applications filed before the jurisdictional Magistrate, the
detenu has specifically denied of having made the
WP(Crl).No.61/2009 &
connected cases – 6 –
confessional statements before the authorities and without
reference to the same or even reference to the contents of
the Bail Application, the impugned detention order has been
passed, which is illegal and unsustainable. It is submitted
that, failure to consider the retraction of the confessional
statement is illegal and the same has vitiated the detention
order. In this regard, the learned Senior Counsel has relied
upon the unreported judgment of the Honourable Supreme
Court in the case of Mohd.Towfeek v. The Additional
Secretary to Government of Tamil Nadu [W.P.(Crl).No.602 of
1989 decided on 23.2.1990], Arun Kumar Soni v. Union of
India (1992 L.W.(Crl.) 170) and K.T.M.S.Mohd. v. Union of
India (AIR 1992 SC 1831).
6. Nextly it is contended that failure on the part of
the Detaining Authority to state as to whether prosecution
and adjudicatory proceedings (criminal proceedings under
WP(Crl).No.61/2009 &
connected cases – 7 –
the Indian Penal Code and Customs Act) would be sufficient
to deal with the detenu and the Detaining Authority is
unnecessarily resorting to the drastic measure of invoking
the provisions of the COFEPOSA Act. It is submitted that as
criminal cases against the detenu and others have been
registered under Section 489A to 489C of Indian Penal Code,
it was necessary for the Detaining Authority to apply its
mind and state in the detention order as to whether this
prosecution and adjudication proceedings under other penal
provisions would be sufficient to deal with the detenu and as
to the necessity of resorting to drastic measure of invoking
the preventive detention law.
7. So far as the other detenus are concerned,
apart from the grounds of non-consideration of alleged
retracted confession in the bail application and the
non-satisfaction of the Detaining Authority as to the
WP(Crl).No.61/2009 &
connected cases – 8 –
imminent necessity of invoking preventive detention law in
spite of there being prosecution and adjudication in respect
of the fake currency, it is commonly contended that as the
bail applications of the detenus had been rejected by the
jurisdictional Magistrate, the Detaining Authority ought to
have satisfied itself by application of mind to find out
whether there is any possibility of the detenus coming out of
jail and continuing the commission of the offence. It is also
contended that precise grounds of detention were not
mentioned or given to these detenus as to their individual
role and the alleged detention order is very vague and
omnibus as to the individual roles of all these detenus. As
such, the detention order is passed without application of
mind and as the same being vague, is liable to be set aside.
8. It is also contended that there are no grounds
to show the nature of alleged abetment of the detenus –
WP(Crl).No.61/2009 & connected cases - 9 -
Abdul Malik, Abdul Kareem and Sajin with the main detenu
Muhammed Alshab. The absence of the same in the
detention order indicates clear non-application of mind and
passing of the detention order in a mechanical way.
9. On these among other grounds, it is contended
that as the detention orders are illegal and vitiated – (i) due
to non-application of mind (ii) not taking into account the
relevant matters and consideration of materials which are
extraneous, (iii) the detention order is thus illegal and
stands vitiated. It is also contended that the detention order
was passed solely on the basis of the statement of
Muhammed Alshab recorded under Section 108 of the
Customs Act and applying the facts stated therein the
detention in respect of other detenus also is illegal and liable
to be set aside.
10. On the other hand, learned counsel for the
WP(Crl).No.61/2009 &
connected cases – 10 –
respondents argued in support of the detention order with
reference to various pronouncements of the Honourable
Supreme Court.
11. We have heard learned counsel at length and
perused all the records and the citations in depth.
12. At the outset, it is to be noted that – (a) time
and again the Honourable Supreme Court and this Court
have stated that the purpose of detention under the
COFEPOSA Act is not punitive, but preventive and (b) that
the Detaining Authority, in the grounds of detention, should
show the awareness of the facts, as the detenu being in jail
as a result of rejection of bail application.
13. So far as non-consideration of the alleged
retracted statement in the bail application, as held by the
Honourable Supreme Court in the case of State of Gujarat v.
Sunil Fulchand Shah (AIR 1988 SC 723), in the grounds of
WP(Crl).No.61/2009 &
connected cases – 11 –
detention, it is not necessary for the Detaining Authority to
set out the reaction to every piece of evidence. In the
present case, in the grounds of detention, there is an
express reference to the bail application of the detenu. The
bail applications are annexed to the grounds of detention. It
cannot, therefore, be said that the Detaining Authority was
unaware of the retraction by the detenu of his statement
before the Customs Authority. As observed by the apex
Court in the case of B.Subaida v. State of Kerala [1993(1)
KLJ 489], reference to the remand to judicial custody and
reference to bail application are indication of application of
mind by the Detaining Authority, not only to the order of
rejection of bail, but also to the contents of the bail
application. In our view, keeping in view the object of bail
application, it was not necessary to mention the alleged
retraction of their statements under Section 108 of the
WP(Crl).No.61/2009 &
connected cases – 12 –
Customs Act. Admittedly, no separate applications or
statements have been filed by the detenus retracting their
earlier version either before the Detaining Authority or the
Customs Authority. Therefore, in our view, it cannot be said
that the Detaining Authority has not applied its mind to the
retraction. As noted by the apex Court, the Detaining
Authority is not required to state in the grounds of detention
its reaction to every piece of evidence which is relied upon
by it. If all material factors have been considered by the
Detaining Authority before passing the order of detention,
the detention order can be held valid and hence we see no
reason to accept the contention of the petitioner in this
regard as the same is devoid of merits.
14. So far as the argument that the Detaining
Authority failed to state whether the prosecution and
adjudicatory proceedings would be sufficient to deal with the
WP(Crl).No.61/2009 &
connected cases – 13 –
detenu instead of resorting to drastic measure of preventive
detention action, at the outset it is to be noticed that the
detention order is passed on 4.10.2008 whereas the criminal
proceedings for the offences under Sections 489A to 489C
have been registered against the detenus only on
12.3.2009. As such, as there were no cases registered
against the detenus, this ground is otherwise without merit
even on facts.
15. So far as the argument that the Detaining
Authority had solely relied upon the confessional statement
of the main detenu Muhammed Alshab as to the alleged
abetment of the other detenus is concerned, it is to be
noted that the case against the other detenus is not built
upon the statement of Muhammed Alshab alone. The said
Muhammed Alshab was caught red handed while carrying
fake currency to the tune of Rs.72,50,000/- and he was
WP(Crl).No.61/2009 &
connected cases – 14 –
caught immediately after alighting from the aeroplane, that
the other detenus, viz., Sajin and Abdul Malik, were not only
waiting for him in the Airport, who were also caught, but
also the fact that they were in touch with the said
Muhammed Alshab through the mobile phones carried by
them and supported by the fact that their mobile numbers
were in the mobile phone of Muhammed Alshab which would
clearly indicate their role in the act of bringing fake
currencies to India.
16. After careful examination of the entire
materials placed before us, we may restate that the liberty
of a citizen is undoubtedly very important. As such, it is our
duty to ensure that there is strict compliance with the
provisions of law. But the Court cannot lose sight of the fact
that those who commit economic offences do harm the
national interest and economy. As reported in recent past,
WP(Crl).No.61/2009 &
connected cases – 15 –
the growing incidents of bringing and circulating fake Indian
currencies all over India and thereby destabilizing the Indian
economy is to be seriously viewed. It is also to be noted
that the exercise of jurisdiction under preventive detention
law is not punitive, but only to prevent such repeated acts
by the alleged culprits.
17. On careful consideration of the entire material,
in our view, the Detaining Authority has taken in cumulative
view of the situation and has rightly held that the detenus
have violated the provisions of the law and their activities
are detrimental to the national interest. In such
circumstances, the Courts also should be slow to interfere
with such orders.
18. Considering the entire materials afresh, we
find absolutely no illegality or arbitrariness in the detention
order passed. The Detaining Authority has applied its mind
WP(Crl).No.61/2009 &
connected cases – 16 –
to all the materials placed before it to come to the right and
just conclusion that the detention of these detenus under
the COFEPOSA Act is essential.
We find absolutely no merit in the contentions
raised by the detenus and hence the writ petitions are
dismissed, upholding the detention orders.
S.R.Bannurmath,
Chief Justice.
Kurian Joseph,
Judge.
vku/-