{"id":102889,"date":"2003-07-28T00:00:00","date_gmt":"2003-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/safiya-vs-government-of-kerala-ors-on-28-july-2003"},"modified":"2016-05-17T19:21:03","modified_gmt":"2016-05-17T13:51:03","slug":"safiya-vs-government-of-kerala-ors-on-28-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/safiya-vs-government-of-kerala-ors-on-28-july-2003","title":{"rendered":"Safiya vs Government Of Kerala & Ors on 28 July, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Safiya vs Government Of Kerala & Ors on 28 July, 2003<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: M.B. Shah, Dr. Ar. Lakshmanan.<\/div>\n
           CASE NO.:\nAppeal (crl.)  913 of 2003\n\nPETITIONER:\nSafiya\t\t\t\t\t\t\t\n\n\nRESPONDENT:\nVs.\n\nGovernment of Kerala & Ors.\t\t\t\n\n\nDATE OF JUDGMENT: 28\/07\/2003\n\nBENCH:\nM.B. Shah &  Dr. AR. Lakshmanan.\n\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT <\/p>\n
(Arising out of Special Leave Petition (Criminal) No. 1215 of 2003)<\/p>\n
Dr. AR. LAKSHMANAN, J.\n<\/p>\n
Leave granted.\n<\/p>\n
This appeal is directed against the final judgment and order dated <\/p>\n
11.2.2003 passed by the High Court of Kerala in O.P. No. 29561 of 2002 filed <\/p>\n
by the appellant herein, who is the wife of the detenu – T.P. Moideen Koya <\/p>\n
who is under preventive detention under the COFEPOSA Act vide order of <\/p>\n
detention dated 21.02.2001.\n<\/p>\n
The case of the prosecution in brief is that on 18.08.2001 a search <\/p>\n
was conducted by the Superintendent, Central Excise and Customs on the <\/p>\n
residence of one Kunjumon.  In the search Indian and Foreign currencies and <\/p>\n
Gold biscuits were found.  During the course of investigation, the statement of <\/p>\n
Mohd. Mustaffa, driver and employee of the said Kunjumon and P. <\/p>\n
Mohammed, the cousin of Kunjumon were recorded.  According to the <\/p>\n
prosecution, the detenu is involved in dealing in smuggled goods and, <\/p>\n
therefore, report was made to the detaining authority for detaining the detenu <\/p>\n
under Section 3(i) (iv) of the COFEPOSA Act, 1974.  The detenu was <\/p>\n
detained in execution of the order of detention on 04.09.2002 and detained in <\/p>\n
Central Jail, Thiruvananthapuram.  The detenu submitted his representation <\/p>\n
to the Detaining Authority and the Central Government and the same were <\/p>\n
rejected.\n<\/p>\n
Safiya, the wife of the detenu, filed a writ petition before the High Court <\/p>\n
of Kerala challenging the detention of her husband T.P. Moideen Koya (the <\/p>\n
detenu) on the grounds that the order of detention of the detenu is primarily <\/p>\n
based upon the statement recorded from Mohammed Mustaffa, an employee <\/p>\n
of Kunjumon and that an order of detention was passed against the said <\/p>\n
Mohammed Mustaffa and he was detained by an order of detention dated <\/p>\n
17.10.2001 passed by the detaining authority.  The said case was placed <\/p>\n
before the Advisory Board and the Advisory Board submitted in its opinion <\/p>\n
that there is no ground for detaining the said Mohammed Mustaffa.  In <\/p>\n
accordance with the report of the Advisory Board, the detaining Authority, the <\/p>\n
State of Kerala, by its order dated 15.01.2002 revoked the detention against <\/p>\n
the said Mohammed Mustaffa.  It is the case of the appellant that since the <\/p>\n
facts relating to the said Mohammed Mustaffa is similar and arising out of the <\/p>\n
same set of circumstances and the order of detention having been held to be <\/p>\n
improper by the Advisory Board and subsequently having been revoked by <\/p>\n
the State Government, the said facts and materials ought to have been <\/p>\n
placed before the detaining Authority by the Sponsoring Authority and the <\/p>\n
same ought to have been considered before passing the order of detention <\/p>\n
against the detenu herein.  The appellant also raised the contention that there <\/p>\n
has been inordinate delay in considering and disposing of the representation <\/p>\n
of the appellant.  It was also contended that there is no material to justify the <\/p>\n
involvement of the detenu and, therefore, the order of detention is based on <\/p>\n
no material.\n<\/p>\n
The High Court dismissed the writ petition holding that the delay in <\/p>\n
disposing of the representation was reasonable.  The High Court passed a <\/p>\n
detailed judgment considering all the contentions raised by the counsel for the <\/p>\n
appellant before it including the rulings cited before it.   Aggrieved by the said <\/p>\n
judgment, the present appeal has been filed before this Court.<\/p>\n
We have perused the pleadings and the other Annexures filed along <\/p>\n
with this appeal and also the counter affidavits filed by the State Government <\/p>\n
of Kerala and the Government of India both in the High Court and also in this <\/p>\n
Court.  We heard Mr. B. Kumar, learned senior counsel for the appellant and <\/p>\n
Mr. R.N. Trivedi, learned Additional Solicitor General  for the Union of India <\/p>\n
and Mr. T.L. Viswanatha Iyer, learned senior counsel for the State of Kerala.<\/p>\n
Mr. B. Kumar after inviting our attention to the pleadings raised the <\/p>\n
following three contentions:-\n<\/p>\n
1.\tNon-placing of the opinion of the Advisory Board which has opined <\/p>\n
that there is no sufficient case for detention of the detenu <\/p>\n
Mohammed Mustaffa involved in the same occurrence which <\/p>\n
opinion was rendered even in December, 2001, long before the <\/p>\n
passing of the order of detention in the instant case on 22.01.2002 <\/p>\n
amounts to non-placing of relevant and important document such <\/p>\n
that the subjective satisfaction stands vitiated.\n<\/p>\n
2.\tThere is inordinate delay in considering the representation of the <\/p>\n
detenu.\n<\/p>\n
3.\tSeveral documents on which the grounds of detention are <\/p>\n
substantially based are only in Malayalam and no translation <\/p>\n
thereof into english has been provided and, therefore, the <\/p>\n
consideration of the representation without taking into the <\/p>\n
consideration of these vital material is no consideration in the eyes <\/p>\n
of law as in all probabilities the person who dealt with the <\/p>\n
representation and took a decision thereof on behalf of the second <\/p>\n
respondent could not be knowing Malayalam.  Mr. Kumar also <\/p>\n
submitted that in the facts disclosed in the grounds of detention it <\/p>\n
would be a case of no material against the detenu and sweeping <\/p>\n
allegations of violations of the Customs Act and dealing in <\/p>\n
smuggled goods to a huge figure has been arrived at totally <\/p>\n
unsupported by any material.  Therefore, he would submit that the <\/p>\n
detention order is vitiated since the conclusion is not supported by <\/p>\n
any material annexed to the grounds of detention.\n<\/p>\n
Learned Additional Solicitor General appearing for the Union of India <\/p>\n
submitted that the appeal is devoid of any merit or substance and deserves to <\/p>\n
be rejected outright by this Court and that the delay, if any, on the part of the <\/p>\n
Central Government has been properly explained in para 3 of its counter <\/p>\n
affidavit filed in this Court.  He, therefore, submitted that the time of six days <\/p>\n
taken by the competent authority was not a negligence or callous in action on <\/p>\n
the part of the Central Government and since there has been no undue or <\/p>\n
unexplained delay in disposing of the representation of the detenu, the appeal <\/p>\n
is liable to be rejected by this Court.\n<\/p>\n
Mr. T.L. Viswanatha Iyer appearing for the Government of Kerala drew <\/p>\n
our attention to the relevant paragraphs in the counter affidavit and submitted <\/p>\n
that the appellant has no case on merits and, therefore, is liable to be <\/p>\n
dismissed.\n<\/p>\n
In regard to contention No.1, the answering respondent submitted that <\/p>\n
the case against the detenu was not built upon the statement of Mohammed <\/p>\n
Mustaffa alone.  The records clearly show that Mohammed Mustaffa was <\/p>\n
dealing in gold biscuits and distributing tube money as instructed by <\/p>\n
Kunjumon and that the business between Kunjumon and the detenu was not <\/p>\n
done through Mohammed Mustaffa.  In our opinion, the revocation of the <\/p>\n
detention order issued against Mohammed Mustaffa has no relevance as far <\/p>\n
as the detenu T.P. Moideen Koya is concerned.  The detenu was personally <\/p>\n
heard by the Advisory Board.  After hearing the detenu and perusing the <\/p>\n
records, the Advisory Board opined that there were sufficient grounds for the <\/p>\n
detention of the detenu.  Under the circumstances, we are of the opinion that <\/p>\n
the non-placing of the order revoking the detention order of Mohammed <\/p>\n
Mustaffa before the Advisory Board does not vitiate the detention order <\/p>\n
issued against the detenu.  The detention order was issued after perusing the <\/p>\n
relevant and material documents and after arriving at subjective satisfaction <\/p>\n
of the authorities.  We are, therefore, of the view that the High Court has <\/p>\n
rejected the said contention, rightly so in our opinion.<\/p>\n
In regard to contention No.2 delay in consideration of representation, <\/p>\n
the Central Government has clearly and explicitly explained the reasons for <\/p>\n
the delay insofar as they relate to the Central Government.  It is seen from the <\/p>\n
records produced that a copy of the representation dated 26.09.2002 in <\/p>\n
Malayalam language of the detenu, sent by the Superintendent, Central <\/p>\n
Prison, Thiruvananthapuram dated 26.09.2002 was received in the <\/p>\n
COFEPOSA unit of the Ministry of Finance, Department of Revenue, Central <\/p>\n
Economic Intelligence Bureau, New Delhi.  Parawise comments and the <\/p>\n
English translation of the representation were called from the Sponsoring <\/p>\n
Authority on the same day i.e. 30.09.2002.  The comments on the <\/p>\n
representation along with English translation, sent by the Sponsoring <\/p>\n
Authority vide their letter dated 04.10.2002 were received in the COFEPOSA <\/p>\n
unit on 07.10.2002 (in between 05.10.2002 and 06.10.2002 were holidays, <\/p>\n
being Saturday and Sunday).  The case filed along with relevant material was <\/p>\n
submitted to the Under Secretary, COFEPOSA on 07.10.2002.  The Under <\/p>\n
Secretary processed the case and put up to the Joint Secretary on the same <\/p>\n
day i.e. 07.10.2002.  The Joint Secretary submitted the file to the Secretary, <\/p>\n
Ministry of Finance, Department of Revenue on 07.10.2002 itself.  The <\/p>\n
Secretary, Ministry of Finance, Department of Revenue, considered the said <\/p>\n
representation on behalf of the Central Government and rejected the same on <\/p>\n
17.10.2002 (in between 12th and 13th October, 2002 were holidays being <\/p>\n
Saturday and Sunday and 14th and 15th October, 2002 were holidays being <\/p>\n
Mahanavami and Dussehra festivals.  The file was received back from the <\/p>\n
office of the Secretary, Revenue on 18.10.2002.  Memorandum of rejection of <\/p>\n
representation was issued to the detenu herein through the concerned Jail <\/p>\n
Authority at Thiruvananthapuram on 18.10.2002 and the same was received <\/p>\n
by the detenu through the concerned Jail Authority on 21.10.2002.  The dates <\/p>\n
and other details given above in the counter affidavit by the Central <\/p>\n
Government would only show that there has been no undue or unexplained <\/p>\n
delay in disposing of the representation of the detenu herein.  The said <\/p>\n
contention is, therefore, rejected.\n<\/p>\n
Regarding the third contention, we are of the opinion that the same <\/p>\n
has no merits.  In this regard, it is submitted by the respondents that the <\/p>\n
Detaining Authority of the Government of Kerala had forwarded to the Central <\/p>\n
Government the report under Section 3(2) of the COFEPOSA Act, which <\/p>\n
consisted of Detention Order, the ground of detention and relied upon <\/p>\n
documents including the English translation of the documents which were in <\/p>\n
Malayalam language.  Thus, the English translation of the Malayalam <\/p>\n
representation of the detenu and the English translation of the documents <\/p>\n
relied upon were available before the second respondent at the time of <\/p>\n
consideration of the representation of the detenu was also available.  <\/p>\n
Therefore, the allegation of the petitioner that English translation of the <\/p>\n
documents which were in Malayalam language has not been supplied to the <\/p>\n
second respondent is baseless.\n<\/p>\n
A careful perusal of the records placed before this Court would show <\/p>\n
that there are enough materials to show the involvement of the detenu in the <\/p>\n
smuggling activities.  The State Government (Detaining Authority) have <\/p>\n
considered all the aspects and perused the relevant material documents <\/p>\n
before issuing the detention order.  Such detention order was issued based <\/p>\n
on the subjective satisfaction as to the necessity of detaining the detenu by <\/p>\n
invoking the provisions of the COFEPOSA Act.  The detenu, therefore, in our <\/p>\n
opinion, is not entitled to challenge the subjective satisfaction arrived at by the <\/p>\n
detaining Authority in these proceedings.\n<\/p>\n
Learned senior counsel for the appellant,  contended that there is non-<\/p>\n
application of mind on the part of the detaining Aauthority.  This contention <\/p>\n
has no merits.  It is argued that the detention order was issued against the <\/p>\n
detenu with a view to prevent him from dealing in smuggled goods otherwise <\/p>\n
than by engaging in transporting or concealing or keeping smuggled goods.  <\/p>\n
A perusal of the representation submitted by detenu dated 26.09.2002 shows <\/p>\n
that he has understood the grounds of detention properly and has made an <\/p>\n
effective and meaningful representation for revoking the detention order.  The <\/p>\n
translated version of the ground of detention has also been furnished to the <\/p>\n
detenu.   While serving the grounds of detention on the detenu on <\/p>\n
12.09.2002, he has made an endorsement to the effect that he has read and <\/p>\n
understood the grounds of detention and he has no complaint in this regard.  <\/p>\n
We are not required to decide whether subjective satisfaction of the Authority <\/p>\n
is justified or not, yet a  perusal of the records would reveal that the Detaining <\/p>\n
Authority has considered all the relevant aspects borne out from the aforesaid <\/p>\n
records before issuing the detention order and after arriving at the subjective <\/p>\n
satisfaction as to the necessity of detaining him by invoking the provisions of <\/p>\n
the COFEPOSA Act.  The seized documents show that the detenu in this <\/p>\n
case had dealt with 290 smuggled gold biscuits valued at Rs. 1.5 crores with <\/p>\n
Kunjumon and had carried out transactions worth Rs. 18 crores during the <\/p>\n
period 01.08.2001 to 15.08.2001.  Mr. Bapu who was involved in the <\/p>\n
contribution of tube money stated that the detenu is an accomplice of <\/p>\n
Kunjumon and he had telephoned him at his residence on the No. 370444 <\/p>\n
appearing in his note book.\n<\/p>\n
It is also seen from the counter affidavit filed by the Government of <\/p>\n
Kerala in this Court (para 2.11) that about 9,300 smuggled gold biscuits were <\/p>\n
transported by Kunjumon as per the documents seized from his residence <\/p>\n
and out of this the detenu T.P.Moideen Koya had transacted about 290 gold <\/p>\n
biscuits valued approximately Rs. 1.5 crores.  Out of 40 crores of Hawala <\/p>\n
transactions made by Kunjumon,. the detenu Moideen Koya had transacted <\/p>\n
about Rs. 18 crores.  This, according to the respondent, is a very vital <\/p>\n
evidence establishing their smuggling activities.\n<\/p>\n
As already seen, the case against the detenu is not built upon the <\/p>\n
statement of Mohammed Mustaffa alone.  The said Mustaffa was also dealing <\/p>\n
in gold biscuits and distributing tube money as instructed by Kunjumon.  <\/p>\n
Since we are disposing of the appeal on factual basis and on the basis <\/p>\n
of the records placed before us, we are not referring to the judgments cited by <\/p>\n
the learned counsel for both the sides.\n<\/p>\n
The liberty of a citizen is undoubtedly very important.  It is our duty to <\/p>\n
ensure that there is strict compliance with the provisions of law.  In our view, <\/p>\n
strict compliance of the provisions of law has been made.  The Court, in our <\/p>\n
opinion, cannot lose sight of the fact that those who commit economic <\/p>\n
offences do harm to the national interest and economy.  Thus, the High Court, <\/p>\n
while examining the case, has taken a cumulative view of the situation and <\/p>\n
had seen all the relevant facts.\n<\/p>\n
On a consideration of the totality of the circumstances, the High Court <\/p>\n
came to the conclusion that the detenu has violated the provisions of law and <\/p>\n
his activities are not in the larger national interest and that the Court should <\/p>\n
be slow to come to the aid of the detenu.  We agree with the conclusion <\/p>\n
arrived at by the High Court.\n<\/p>\n
The instant appeal filed by the wife of the detenu is totally devoid of <\/p>\n
any merit or substance and as such we have no hesitation in rejecting the <\/p>\n
same.  The appeal shall stand dismissed.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Safiya vs Government Of Kerala & Ors on 28 July, 2003 Author: . A Lakshmanan Bench: M.B. Shah, Dr. Ar. Lakshmanan. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-102889","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSafiya vs Government Of Kerala & Ors on 28 July, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/safiya-vs-government-of-kerala-ors-on-28-july-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Safiya vs Government Of Kerala & Ors on 28 July, 2003 - 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