T.V. Abdul Azeez vs Union of India (UOI) and Another

M. Jagannadha Rao, C.J.—The writ petition is filed by T.V. Abdul Azeez, the detenu himself, by staying out of India at Abudhabi and by swearing an affidavit from that country. The relief claimed is for a writ of Habeas Corpus and for quashing the order of detention, Ext. P-1 and also the further order of rejection of the representation, Ext. P-6, dated 18th July 1992.

Following are the facts:

One Moosa Koya arrived at Trivandrum Airport on 9th December 1988 carrying 35 gold biscuits weighing 4077.5 grams valued at Rs. 12,23,250. The gold biscuits were concealed in a chain sprocket, which was declared by the passenger as one of the items in his baggage. In the statement given by him u/s 108 of the Customs Act, he deposed that he was employed as a Cleaner at Abudhabi on a monthly salary of 600 Dirhams and that the Petitioner Abdul Azeez met him on 8th December 1988 and informed him that he will pay for his air ticket, provided he carried the chain sprocket, containing the gold biscuits, as directed by the said Abdul Azeez. The said Azeez also informed him about the concealment of gold biscuits and stated that he would collect the gold biscuits after his arrival at his native place, i.e. Calicut. Free air ticket and Rs. 10,000 was also promised as remuneration for carrying the chain sprocket.

According to the Respondents a letter dated 9th December 1988 was addressed by the Petitioner to one Ismail and the said letter was also seized from the Moosa Koya. Ext. P-1 detention order was passed on 22nd April 1989 u/s 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against the Petitioner. Instead of submitting to the authorities and surrendering himself, Petitioner sought to remain in Abudhabi and started sending representations. The representation submitted by Petitioner''s wife was rejected by the 2nd Respondent by order dated 24th July 1990 and is marked as Ext. P-3. A search was conducted at the Petitioner''s residence and a mahazar was prepared on 12th December 1988, which is marked as Ext. P-4.

The Petitioner submitted a further representation to the Home Secretary on 16th April 1992. On the ground that the same was not disposed of, Original Petition, O.P. No. 6638 of 1991, was filed. The said writ petition was disposed of at the stage of admission on 7th April 1992 by a learned Single Judge of this Court directing disposal of the said representation within a particular period. Thereafter Ext. P-6 order has been passed by the Home Secretary on 18th July 1992 rejecting the representation. Questioning the said order, the present writ petition is filed.

Learned Counsel for the Petitioner has relied on three decisions of the Supreme Court in N.K. Bapna Vs. Union of India (UOI) and Others, , in State of Tamil Nadu Vs. P.K. Shamsudeen, and in Additional Secretary to the Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, . From a reading of the above said judgments we find that the Supreme Court has considered this question elaborately and held that ordinarily exception very rare cases this Court should not entertain writ petitions for stay of detention orders under COFEPOSA order, when the detenu has not, surrendered to the concerned authority. The Supreme Court enumerated the various classes of cases.

The learned Counsel for the Petitioner has not contended that the case comes within said cases but has contended that no detention order could have been passed because Moosa Koya tried to implicate the Petitioner. In our view, it is not for this Court to express any opinion on the matter and that is a matter which has to be decided by the Advisory Board under the Act and by the Central or State Government as provided Under the COFEPOSA Act.

We are therefore unable to consider the case on facts. The grounds of detention are yet to be served on the Petitioner. Unless the grounds are served, further details will not be available. Once the grounds are served, the Petitioner will have various opportunities before the Advisory Board and before the State and Central Government as contemplated under the COFEPOSA Act and under Article 21 and 22(5) of the Constitution of India.

We are therefore unable to exercise any discretion in favour of the Petitioner for granting stay of the order of detention.

We may also state that this Court ought not have entertained O.P. No. 6636 of 1991 dated 7th April 1992 in directing the Home Secretary to dispose of the representation filed by the Petitioner. Even at the time when the said writ petition was filed, the Petitioner continued to remain in Abudhabi.

We are in entire agreement with the general principles laid down in State of Kerala v. Shantilal Choksi 1988 (2) KLT 61 and also the judgment of Krishnamoorthy, J. in Hakeem Alias Abdul Kareem v. The State of Kerala O.P. No. 1010 of 1993-T, dated 4th February 1993, wherein the learned Single Judge dismissed a similar application.

For the aforesaid reasons the present writ petition is dismissed.