JUDGMENT
S. Sankarasubban, J.
1. Petitioner is the wife of one Thallassery Parambil Abdul Saleem, who has been detained in the Central Prison, Thiruvananthapuram, under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘the COFEPOSA Act’).
2. The case of the petitioner is that her husband arrived at Thiruvananthapuram by Qatar Airways Flight No. QR 240 from Abudabi. On enquiry by the Officers, Abdul Saleem (hereinafter referred to as ‘the detenu’) informed his name and address. On examination of his customs clearance gate pass, it was noticed that on arrival the detenu had opted for green channel and he had not paid any customs duty. To a question whether he had any gold or any other valuable item on his person or inside his baggage, the detenu replied in the negative. Thereafter, the detenu was taken along with his baggage to the X-ray room inside the baggage hall. A detailed examination was conducted by the Officers on the baggage and also on the person of the detenu. On examination, it was found that a bundle of U.S. Dollars and 85 Gold Biscuits taped with adhesive tape covered with plastic paper were recovered. The total weight of 85 Gold Biscuits was ascertained as 9,911 gms, at a total value of Rs. 39,94,133/-. The total value of the U.S. Dollars recovered from the detenu was 9,500 U.S. Dollars.
3. Thereafter, 100 U.A.E. Dirhams were found in the pocket of the shirt of the detenu. This was also recovered. The detenu did not possess any valid document for importing the gold. Thus, he had attempted to smuggle 85 Gold Biscuits without paying customs duty.
4. Proceedings were initiated under the Customs Act. The gold and the foreign currency were recovered and seized under mahazar. A statement of the detenu was recorded under Section 108 of the Customs Act, in which the detenu had stated that it is for the first time that he had brought gold without paying customs duty. The detenu was arrested on 6-8-1999 and produced before the Chief Judicial Magistrate on 6-8-1999 itself. He was remanded up to 16-8-1999. Thereafter, the detenu was produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. His remand was further extended up to 13-9-1999. Though a search was conducted in the residence of the detenu at Malappuram, no contraband articles were recovered. It was apprehended that the detenu will continue to smuggle gold into India unless he is prevented from doing so by detaining him under the COFEPOSA Act.
5. After the arrest, the detenu was in the judicial custody. Though applications for bail were preferred before the Economic Offences Court, Ernakulam, the Sessions Court, Ernakulam and this Court, they were rejected. Thereafter, the first respondent issued an order, dated 5-10-1999 directing that the detenu should be detained under Section 3(1)(i) of the COFEPOSA Act. Copy of the above order is produced as Ext. P1. The grounds for detaining the detenu were produced as Ext. P2. The detenu preferred a representation addressed to all the Authorities, among other things, contending that the alleged statement under Section 108 of the Customs Act by duress and force and the contents of the statement were not at all true and were recorded by force. The detenu retracted the statement through the bail application filed before the Chief Judicial Magistrate. The detenu submitted a detailed representation on 10-10-1999 before the Additional Commissioner of Customs, Thiruvananthapuram and many other legal grounds were also raised. Copy of the above said representation dated Nil is produced as Ext. P3. Ext. P3 was rejected by the second respondent, viz., Union of India, by communication dated 3rd December, 1999, copy of which is produced as Ext. P4. It was also rejected by the first respondent, viz., the State of Kerala by Ext. P5 dated 4-12-1999. The case of the detenu was then referred to the COFEPOSA Advisory Board on 11-9-1999, under Section 8(b) of the COFEPOSA Act. The COFEPOSA Advisory Board heard the detenu in person and submitted a report to the effect that there was sufficient cause for detention of the detenu under Section 3(1)(i) of the COFEPOSA Act. Thereafter, the first respondent issued Ext. P6 order confirming the detention of the detenu and directing that the detention will continue for a period of one year with effect from 16-10-1999. The petitioner challenges the detention order. She prays for quashing Ext. P1 order and to set the detenu at liberty.
6. The main grounds urged in the petition are that the detention of the detenu is punitive. The Detaining Authority has not exercised honestly the subjective satisfaction. The grounds of detention do not contain the entire facts and circumstances. The detenu had filed several applications before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, the District Court, Ernakulam and this Court. None of the said applications was placed before the Detaining Authority. The said applications contained the retraction of the confession of the detenu. Non-placing of material documents before the Detaining Authority makes the detention order bad. The grounds of detention have not been considered. There has been considerable delay on the part of respondents 1 and 2 in the matter of considering Ext. P3 representation preferred by the detenu under Article 22(5) of the Constitution of India. The procedural safeguards contained under Article 22(5) of the Constitution of India have been violated. It is further stated that there has been no circumstance existing for invoking the provisions of Section 3(1)(i) of the COFEPOSA Act. There is nothing to show that the detenu was engaged in the act of smuggling. Another contention is that since the passport of the detenu had been seized by the Customs Authorities, there was no question of living outside India.
7. Counter affidavits have been filed by the second respondent-Union of India as well as the first respondent-State of Kerala. So far as the grounds raised by the petitioner, in paragraph 10 of the counter-affidavit filed by the first respondent, it is stated as follows : The Sponsoring Authority had furnished the proposal for detention of the detenu to the Detaining Authority on 30-8-1999 with all the documents available with the Sponsoring Authority as on date. The bail application was heard and rejected by the Additional Chief Judicial Magistrate on 6-9-1999 and Criminal Miscellaneous Petition filed before the Sessions Court, Ernakulam was also dismissed on 13-9-1999. However, the Screening Committee was convened on 17-9-1999 and the order of detention was issued by the Government of Kerala on 5-10-1999. Cri. M.C. No. 4476 of 1999 dated 16-9-1999 filed before this Court was also rejected on 24-9-1999. This fact was duly communicated to the Detaining Authority by the Sponsoring Authority. Hence, the order of detention was issued taking into account all the factors emerged from the date of arrest of the detenu on 6-8-1999. It is further stated that in all the above applications, no material evidence were putforth by the detenu to prove his innocence other than the pleading that the statement was not voluntary and the same was recorded under threat, coercion, etc. However, there was no immediate retraction other than what was contained in his first bail application. The question whether the statement is voluntary or not can be decided only at the time of the trial. Further, it is stated that it was also mentioned in the representation that the detenu retracted the same through the bail application at the earliest available opportunity. Hence, it is not correct to say that the CWC was not aware of the retraction made by the detenu. Regarding the delay in considering the representation, in paragraph 12 of the counter-affidavit, it is stated as follows: “It is true that the petitioner’s husband submitted a representation dated 12-11-1999 through the Superintendent, Central Prison, Thiruvananthapuram to the detaining authority, Government of Kerala and to the Deputy Secretary, Government of India, Ministry of Finance, New Delhi. After obtaining the remarks of the sponsoring authority thereon, reply has been given to the detenu by the detaining authority on 4-12-1999 vide their letter No. 55595/ SSA1/99/Home dated 4-12-1999 and the Government of India on 3-12-1999 vide Memorandum 686/99/99 Cos. VIII dated 3-12-1999 through the Superintendent, Central Prison, Thiruvananthapuram. It may be seen that the reply to the representation has been communicated within a month. Therefore there is no inordinate delay in considering the representation”. It is further stated that the entire matter was considered by the Detaining Authority after it properly applied its mind and passed the orders.
8. So far as the counter-affidavit filed by the second respondent is concerned, it is filed by the Deputy Commissioner (Legal), Office of the Commissioner of Central Excise & Customs, Cochin-1. In paragraph 8 of the counter-affidavit, it is stated as follows : The proposal for detention of the detenu was forwarded to the Detaining Authority on 30-8-99 with all the documents available with the Sponsoring Authority as on date. The bail application was heard and rejected by the Additional Chief Judicial Magistrate on 6-9-1999 and Criminal Miscellaneous Petition filed before the Sessions Court, Ernakulam was also dismissed on 13-9-1999. However, the Screening Committee was convened on 17-9-1999 and the order for detention was issued by the Government of Kerala on 5-10-1999. Cri. M.C.No. 4476 of 1999 dated 16-9-1999 filed before this Court was also rejected by order dated 24-9-1999. The fact of filing the Cri. M.C. before this Court was duly communicated to the Detaining Authority by the Sponsoring Authority on 22-9-1999. Hence, the order of detention was issued taking into account all the facts emerged from the date of arrest of the person on 6-8-1999. Regarding retraction of confession, it is stated that no material evidence were put forth by the detenu to prove his innocence, other than pleading that the statement was not voluntary and the same was recorded under threat, coercion etc. It is not correct to say that the CWC was not aware of the retraction made by the detenu nor it had not considered the entire facts of the case. The COFEPOSA Advisory Board as constituted under Section 8(b) of the COFEPOSA Act have considered all the aspects including the representation of the detenu and the reply furnished by the Government of India. Regarding delay, in paragraph 10 of the counter-affidavit, it is stated that the representation was made on 12-11-1999 through the Jail Superintendent, Thiruvananthapuram, which was sent to the Principal Secretary, Government of Kerala and the Deputy Secretary to the Government of India, Ministry of Finance, New Delhi has communicated the fact of rejection of the representation, vide memorandum dated 3-12-1999 to the detenu. Hence, there is no delay.
9. We heard learned counsel for the petitioner Shri. Babu S. Nair, Learned senior Government Pleader Shri. K. Sasikumar for respondents 1 and 3 and learned senior Central Government Standing Counsel Shri K. Ramakumar for second respondent.
10. On behalf of the petitioner, it is contended as follows: All the materials were not produced before the Detaining Authority. In the bail applications filed before the Sessions Court as well as before this Court, the detenu made it clear that the confession was not voluntary and it had been retracted. There has been considerable delay in disposing of the representation. It was further contended that under Section 3(1)(i) of the COFEPOSA Act, since there is only an apprehension that the detenu was engaged in the act of smuggling, the power cannot be exercised. It is further contended that the passport of the detenu was seized by the Customs Authorities. Hence, there was no possibility of smuggling. Learned counsel for the respondents contended that the entire matter has been considered by the Detaining Authority and the Advisory Board. It is admitted that the bail applications were not produced either before the Detaining Authority or any other Authority. But the confession retracted was known to the Authorities and hence it should be deemed that they have considered this matter.
11. The files regarding the detention were produced. It is seen that on 30-8-1999, the Commissioner of Central Excise, Ernakulam sent a proposal for detention of the detenu. On 16-9-1999, the Commissioner of Central Excise and Customs sent a Fax message to the Principal Secretary to Government of Kerala, Home (SSA) Department, Secretariat, Thiruvananthapuram as follows: The remand of Shri Abdul Saleem has been further extended upto 27-9-99 and lodged in Muvattupuzha Sub Jail”. On 22-9-1999, the Commissioner of Central Excise and Customs sent a letter to the Principal Secretary, Home (SSA) Department, Secretariat, Thiruvananthapuram. In paragraph 3 of that letter, it is stated that the remand of Shri. Saleem was expiring on 27-9-1999 and since the investigation of the case was almost complete the Department would not be in a position to get any further extension of his remand. The case was detected on 6-8-1999 and on 6-10-1999 Abdul Saleem would be completing 60 days under remand. In the above circumstances, the office may please be informed urgently whether any decision has been taken on the proposal for detention of Abdul Saleem under the COFEPOSA Act. The meeting of the Screening Committee was held on 27-9-1999 and a decision was taken by the Screening Committee, recommending the Detaining Authority to consider the issue of detention against Abu Saleem. On 28-9-1999, a Fax message was sent by the Commissioner of Central Excise and Customs, Ernakulam to the Principal Secretary, Home (SSA) Department, secretariat, Thiruvananthapuram informing that the remand of Abu Saleem has been further extended upto 11-10-1999. The detention order was issued on 5-10-1999. On 6-10-1999, it is seen from the files, the Central Excise and Customs, Ernakulam informed the Principal Secretary, Home Department, Thiruvananthapuram that this Court has granted conditional bail to Abu Saleem and He was likely to be released on that day itself It appears that the detenu was released on bail. Thereafter, the detenu was arrested and he was arrested on 16-10-1999 from his house at Malappuram. Thereafter, he was sent to the Central Prison, Thiruvarianthapuram. After getting the representation of the detenu, the Commissioner sent comments on the representation. In paragraph 11 of the comments, the Commissioner has stated about the retraction of confession. But nothing is stated about the granting of bail by the Court. The COFEPOSA Board considered the matter on 7-12-1999. In the representation before the COFEPOSA Advisory Board also, the detenu has stated about the retraction of confession. This is clear from paragraph 12 of the order of the COFEPOSA Advisory Board. But the Board was of the opinion that there was cause for detention of the detenu. It is thereafter that the final order was confirmed.
12. In the files, since copies of the bail applications and the order passed by this Court were not available, we directed the counsel to produce the same. Counsel produced copy of the petition before this Court in Cri. M.C.No. 4476 of 1999, which was filed on 16-9-1999. In paragraph 5 of the petition, it is stated that while he was in custody of the Air Customs Officers, a statement under Section 108 of the Customs Act was recorded from him. That statement was not voluntary and the same was recorded by the Customs Officers at their instance by threat, coercion, undue influence, physical and mental torture. He has no connection with the contents of the said statement. The petitioner was not served with any copy of such statement, even though he persistently requested for the same. Along with the bail application, the order passed by the Sessions Judge, Ernakulam dated 13th September, 1999 was annexed as Annexure I, In paragraph 3 of the above order, the Sessions Judge referred to the contention of the detenu that the statement given to the Customs Officers was not voluntary. It is seen that on 5-10-1999, the Additional Chief Judicial Magistrate passed an order in Cri. M.P.No. 6543 of 1999 in O.S.No. 506 of 1999 filed by the detenu. By that order, the detenu was granted bail subject to the following conditions :
(1) He shall execute a bond for Rs. 1,00,000/- with two solvent sureties for like amount. The sureties shall produce a valid solvency certificate obtained from the Revenue authorities.
(2) The accused and the sureties shall deposit a sum of Rs. 20,000/- each as security in the Court.
(3) The accused shall not tamper with evidence or attempt to influence the independent witnesses.
(4) The accused shall not leave India without first obtaining permission of the Court.
(5) He shall appear before the Investigating Officer as and when directed to do so and co-operate with the investigation of the case.
13. It is seen that the detenu was not released on bail, since the records itself show that he was arrested from his house on 16-10-1999. Admittedly, in this case, the detention order was passed on 5-10-1999 and the bail order was passed on 5-10-1999. The Screening Committee recommended for detention on 27-9-1999. It is true that the Screening Committee recommended for detention earlier. But before the Screening Committee met and before the detention order was passed, applications for bail had been filed. These materials were not placed before the Detaining Authority. One of the conditions in the bail is that the detenu should not leave the country without the permission of the Court. But the bail order was not produced before the Detaining Authority by the Screening Committee before the confirmation order was passed. The fundamental legal principle that cannot be lost sight of is that when liberty of the subject is involved it is the duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously and honestly observed and that the subject is not deprived of his personal liberty. Though there cannot be any dispute that smuggling and other antisocial activities have to be dealt with by an iron hand by the State, any action taken against a subject must conform to established legal principles. It is now clear from the decision of the Supreme Court that if material and vital facts which would influence the mind of Detaining Authority one way or the other on the question whether or not to make the detention order are not placed before it, that would vitiate the subjective satisfaction rendering the detention order illegal. In the decision, reported in Abu v. Secretary to Government, (1988) 2 Ker LT 254, a Division Bench of this Court held as follows :
As the retracted confession statement is a relevant material in issue, it would have been possible to the detaining authority to consider the same in its true perspective and reach its own conclusion!. The detaining authority could have probably rejected it on the ground that it is the result of after-thought or belated deliberations but Court cannot make any such assumptions. Admittedly the detaining authority could not consider it as it was not placed before it by the sponsoring authority. This has resulted in the detaining authority not getting a chance to consider a crucial material. The question whether the confession statement was voluntarily and freely made or was obtained from him under duress or whether the subsequent retraction was in the nature of afterthought, was essentially for the detaining authority to consider before deciding to issue the order of detention but since admittedly the vital document which would have influenced the mind of the detaining authority one way or the other was neither placed before it nor considered by it, it is apparent that there was non-application of mind on an important and vital fact vitiating the requisite satisfaction of the detaining authority. The resultant position is that the impugned order of detention is invalid and illegal.
14. In a recent decision of the Supreme Court reported in Ahamed Nassar v. State of Tamil Nadu (1999) 8 SCC 473 : (2000 Cri LJ 33), it was held as follows (para 20 of Cri LJ) :
A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision.
According to us, the non-placement of the bail applications containing retracted confession of the detenu has vitiated the detention order. As stated by the Supreme Court, it is for the Sponsoring Authority to place the statement containing retracted confession before the Detaining Authority and it is for the Detaining Authority to take a decision on the retracted confession. Hence, in this case, the detenu is entitled to succeed.
15. So far as delay is concerned, on the facts and in the circumstances of the case, we are not satisfied that there has been delay in disposing of the representation. In this case, the representation was filed on 12-11-1999. The Union of India had rejected the representation on 3-12-1999 and the State Government rejected the same on 4-12-1999. We do not think, there has been inordinate delay in disposing of the representation. As has been stated expeditious disposal of any representation only means which could be expeditiously disposed of by the authority concerned but should not be with any unexplained delay or delay through carelessness. This would depend on the facts and circumstances of each case. In view of the fact, we have found that the detention is illegal on the ground that the materials were not placed before the Detaining Authority, we are not considering the other grounds raised by the petitioner.
16. In the above view of the matter, we set aside Exts. P1 and P6 and direct that the detenu, Abu Saleem, who has been imprisoned under Ext. P1 be set at liberty immediately.
