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
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.
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
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
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.