Vahid F. v. Union of India and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 22[ND] DAY OF MAY 2020 / 1ST JYAISHTA, 1942 WP(CRL.) NO. 44 OF 2020** ## **PETITIONER/S:** **VAHID F.,AGED 87 YEARS S/O. MUHAMMED MYTHEEN, FIROZ MANZIL, VEETU ROAD, KAZHAKUTTOM, MENAMKULAM PART, THIRUVANANTHAPURAM.** **BY ADVS.R.ANIL SRI.M.SUNILKUMAR SRI.T.ANIL KUMAR SHRI.MAHESH BHANU S. SRI.K.SANKARANARAYANAN SRI.SUJESH MENON V.B.** ## **RESPONDENT/S:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, 'B' WING, JANPATH BHAVAN, JANPATH, NEW DELHI - 110 001.** - **2 JOINT SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, 'B' WING, JANPATH BHAVAN, JANPATH, NEW DELHI - 110 001.** - **3 DIRECTOR GENERAL CENTRAL BOARD OF ECONOMIC INTELLIGENCE, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, 'B' WING, JANPATH BHAVAN, JANPATH, NEW DELHI - 110 001.** - **4 THE SUPERINTENDENT CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM, PIN - 695 012.** **5 THE SUPERINTENDENT WOMEN'S CENTRAL PRISON, ATTAKULANGARA, THIRUVANANTHAPURAM, PIN - 695 023.** -2- W.P.(Crl.) No.44 of 2020 **6 DIRECTORATE OF REVENUE INTELLIGENCE REPRESENTED BY ITS DEPUTY DIRECTOR,OFFICE OF THE DEPUTY DIRECTOR,REGIONAL UNIT,CRA16,RASHMI,CONVENT ROAD,VANCHIYOOR P.O,THIRUVANANTHAPURAM-695035 IS IMPLEADED AS ADDL R6 VIDE ORDER DTD 20/02/2020 IN IA 2/20 IN WP(CRL) 44/20** **BY ADVS.SRI.GIRISH KUMAR.V., CGC ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT** ## **OTHER PRESENT:** ## **SRI K.A ANAS- PUBLIC PROSECUTER.** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(Crl.) No.44 of 2020 ## **JUDGMENT** ## **Ravikumar, J.** The petitioner is the father of Smt. Sareena Shaji who is detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act') pursuant to Ext.P1 order dated 27.9.2019. Ext.P2 carries the grounds of detention. Ext.P1 order of detention was executed on 11.10.2019. On obtaining the opinion of the Advisory Board in the case of the detenue the first respondent as per Ext.P7 order confirmed Ext.P1 order for a period of one year from 11.10.2019. This habeas corpus writ petition has been filed seeking quashment of Ext.P1. 2. Heard the learned counsel appearing for the petitioner, the learned Public Prosecutor, the learned Standing Counsel for Directorate of Revenue Intelligence and also the learned Central Government Counsel. 3. The petitioner, inter alia, raises the following -4- W.P.(Crl.) No.44 of 2020 contentions to mount challenge against Ext.P1 order of detention. It is contended that Exts.P4 and P5 representations were not considered before confirming detention as per Ext.P7 dated 31.12.2019. The fact that the detenue was granted bail by this Court as per order dated 2.7.2019 is admitted in the counter affidavit jointly filed by respondents 1 to 3. However, Ext.P7 order dated 31.12.2019 did not reflect consideration of the said conditional bail order dated 2.7.2019. Though it is stated in the joint counter affidavit dated 9.3.2020 nothing revealing the manner in which it was considered is reflected. The respondents themselves would state in the counter that it was a conditional order. What were the conditions? Whether they are sufficient to prevent her from committing smuggling activities? There can be no doubt that the detaining authority as also the Government are under an obligation to consider the same to arrive at a conclusion on the question -5- W.P.(Crl.) No.44 of 2020 as to whether the conditions in the bail order are sufficient to prevent the detenue from committing further smuggling activities. Non-consideration of the said aspect is vital lapse that would vitiate the order of detention. The counter affidavit did not contain anything which would establish that the aspect was actually considered. In the decision of the Hon'ble Apex Court in **K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476]** held that there are two constitutional safeguards with respect to detention of persons under preventive detention laws. The first among them enshrined under Clause (4) of Article 22 of the Constitution of India which mandates that if a detenue is liable to be detained for a longer period than three months, his case shall be referred to the Advisory Board which must report before the expiration of the said period of three months as to whether in its opinion there is sufficient cause for such detention. The second safeguard -6- W.P.(Crl.) No.44 of 2020 embodied in clause (5) of Article 22 requires that when any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The Apex Court went on to hold, in paragraph 7, thus:- “The detenu has two rights under clause (5) of Article 22 of the Constitution: (i) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention.” The subjective satisfaction in the case on hand arrived at is vitiated by the non-consideration of the aforesaid aspect. The Government also failed to consider the aspect. For the aforesaid reason continued detention of the detenue can -7- W.P.(Crl.) No.44 of 2020 only be illegal and unconstitutional. In the result, this writ petition is allowed and we hold that the continued detention of the detenue in terms of Ext.P1 order which was confirmed by Ext.P7, to be illegal, invalid and unconstitutional. Consequently, Ext.P1 detention order as also Ext.P7 order of confirmation are quashed. The detenue Smt.Sareena Shaji shall be set at liberty forthwith unless her custody is required in connection with any other case. Sd/- **C.T.RAVIKUMAR Judge** sd/- **BECHU KURIAN THOMAS Judge** das -8- W.P.(Crl.) No.44 of 2020 ## **APPENDIX OF WP(CRL.) 44/2020** **PETITIONER EXHIBITS** **EXHIBIT P1** **THE TRUE COPY OF THE ORDER OF THE JOINT SECRETARY TO GOVERNMENT OF INDIA, UNDER SECTION 3(1) OF CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT.** **EXHIBIT P2 THE TRUE COPY OF THE GROUNDS OF DETENTION, DATED 27.9.2019.** - **EXHIBIT P3 THE TRUE COPY OF THE LIST OF RELIED UPON DOCUMENTS.** - **EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION TO THE CENTRAL GOVERNMENT.** - **EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION TO THE DETAINING AUTHORITY.** - **EXHIBIT P6** - **THE TRUE COPY OF THE DETENU'S REPRESENTATION DATED 17.8.2019 TO THE FIRST RESPONDENT AND TO THE PRINCIPAL DIRECTOR GENERAL FOR DIRECTORATE OF REVENUE INTELLIGENCE, NEW DELHI.** - **EXHIBIT P7** - **THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT CONFIRMING THE ORDER OF DETENTION AND FIXING THE PERIOD OF DETENTION.** - **EXHIBIT P8** **THE TRUE COPY OF THE MEMORANDUM DATED 9.1.2020 OF THE THIRD RESPONDENT.**