W.P. (Crl.) No. 38 of 2006. Case: M.P. Kunhi Mohammad alias Kunjippa Vs Union of India and Ors.. Kerala CEGAT & CESTAT High Court

Case NumberW.P. (Crl.) No. 38 of 2006
CounselFor Petitioner: Vinod Vallikappan, Adv. and For Respondents: John Varghese, Asstt. S.G. and M.P. Prakash, Spl. Govt. Pleader (F)
JudgesK. S. Radhakrishnan and V. Ramkumar, JJ.
IssueConservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) - Section 3
Citation2006 CriLJ 4352
Judgement DateJuly 25, 2006
CourtKerala CEGAT & CESTAT High Court


Radhakrishnan, J.

  1. This writ of habeas corpus has been preferred to set at liberty one M.P. Kunji Mohammed alias Kunjhippa who was detained in Central Prison, Thiruvananthapuram in pursuance to an order of detention bearing No. 5017/SSA1/05/home dated 14-3-2005 issued by the Government of Kerala. Kunjhippa was ordered to be detained under S.3(1)(i) to (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as per detention order dated 14-3-2005. The grounds for detention with copies of the documents in support of the grounds were served on the detenu and called for his objection. He submitted representation dated 3-12-2005. Representation was considered by the detaining authority and the same was rejected and reply was sent to the detenu vide letter dated 21-12-2005. The Advisory Board after hearing the detenu opined vide letter dated 16-1-2006 there was sufficient reason for the continued detention of the detenu. Detaining Authority, the Government of Kerala later confirmed the order of detention under S. 8(f) of the COFEPOSA Act.

  2. Detenu was later arrested on 28-11-2005 and was sent to the Central Prison, Thiruvananthapuram. This writ petition has been preferred challenging the order of detention on various grounds. Sri B. Kumar, senior counsel appearing for the detenu pressed mainly two grounds specifically referred to in grounds (J) and (K) of the writ petition. Senior counsel submitted that the sponsoring authority had failed to place before the detaining authority a very vital and important document Ext. P11, thereby the order of detention passed by the detaining authority was vitiated. Ext. P11 is an application preferred by the co-accused-Mohammed Abdul Nazar before the Chief Commissioner of Customs, Bangalore on 21-2-2005 seeking to compound the offence undertaking to pay the duty thereon. Later Mohammed Abdul Nazar had paid Rs.10 lakhs towards duty for the goods which was accepted by the department. Counsel submitted that the vital document ought to have been placed by the sponsoring authority before the detaining authority. Counsel submitted that the sponsoring authority should not have kept this vital material to themselves without disclosing the same to the detaining authority, which according to the counsel has vitiated the order of detention. In support of his contention counsel placed reliance on the decision of the Apex Court in V. C.Mohan v. Union of India, 2002 SCC (Crl) 648: AIR 2002 SC 1205.

  3. Senior counsel also submitted that Ext. P11 application submitted before the Chief Commissioner of Customs contained retraction statement of the co-accused Nazar. Co-accused-Nazar had retracted two statements which were recorded from him by the Customs Authorities in Ext. P11 application for compounding. Counsel in support of his contention placed reliance on the decision of the Apex Court in State of U.P. v. Kamal Kishore Saini, 1988 SCC (Cri) 107: 1988 Cri LJ 405 (II). Reference was also made to the decision of the Apex Court in A. Sowkathi Ali v. Union of India, (2000) 7 SCC 148: 2000 Cri LJ 3961.

  4. Sri M.P. Prakash, Special Government pleader appearing for the State of Kerala submitted that Ext. P11 petition addressed to the Commissioner of Customs is not a relevant or material document to be considered by the detaining authority. Counsel submitted that the said representation is only a request for compounding the case and also seeking permission to pay duty. Further it is also stated that the said representation was rejected by the Chief Commissioner of Customs, Bangalore and report to that effect was sent to the co-accused. Learned Government pleader submitted that the application as well as the order passed thereon by the Chief Commissioner of Customs is not a relevant document to pass order of detention under the COFEPOSA Act. Counsel submitted that the application is to be entertained under the Customs Act, a different...

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