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Smt. B. Shareefa Ummer vs Joint Secretary To The Govt. of India

1997 (5) TMI 436 - KERALA HIGH COURT

O.P. No. 335 of 1997 - Dated:- 2-5-1997 - U Singh and S Sankarasubban, JJ. JUDGMENT S. Sankarasubban, J. 1. This original petition is filed by Shareefa Ummer, wife of Urntner Ibrahim for a writ of habeas corpus to produce the body of the husband of the petitioner (hereinafter called 'the detenu'), who is detained in the Central Prison, Trivandrum, as per the order of detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (her .....

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s and 12,500 Qatar Riyals from the slippers worn by the detenu, under the provisions of the Foreign Exchange Regulation Act. 2. The detenu gave a statement under Section 40 of the Foreign Exchange Regulation Act stating among other things that his brother Mohammed introduced him to one Babu-Bhai who promised to give ₹ 5,000/- for each trip if he smuggles foreign currencies out of India. The detenu was arrested on 21-11-1992 and he was remanded to judicial custody. Subsequently, the detenu .....

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993, the detenu was arrested and detained in the Central Prison, Trivandrum only on 4-6-1996, three years after the order of detention was passed. The grounds of detention and documents were also served on the detenu. The case of the detenu was referred to the Central Advisory Board. The detenu filed representations to respondents 1 and 2. Both die representations were rejected. After obtaining the opinion of the Central Advisory Board, the Detaining Authority confirmed the order of detention by .....

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ing this period, the detenu has not absconded, but he was very much available in the places known to the authorities. The detenu was granted bail and he was allowed to remain at large complying with the conditions in the bail order. According to the petitioner, the authorities did not take any proper steps for executing me order of detention under Section 7 of the COFEPOSA Act. The bail Older granted was not even attempted to be cancelled. The failure of the authorities to take prompt action in .....

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for the arrest of the detenu had arisen outside the territorial jurisdiction of this Court, beginning from the apprehension of the detenu at the Bombay Sahar Airport on 20-11 -1992. The apprehension of the detenu at Bombay Sahar Airport, the recommendation of the sponsoring authority at Bombay and the detention order passed in New Delhi all had arisen outside the territorial jurisdiction of this Court, According to the counter-affidavit, the arrest of the detenu is not the real cause of action. .....

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ries at the detenu's residential premises as many as 14 times, viz., 12-9-1993, 15-12-1993, 10-2-1994, 15.4.1994, 12-8-1994, 11-11-1994, 3-1-1995, 6-4-1995, 8-7-1995, 11-10-1995, 9-1-1996, 12-4-1996, 15-5-1996 and 29-5-1996, which revealed that the detenu was not found available at the given addresses. The relevant enquiry reports submitted by the officers of Enforcement Directorate, Calicut in this regard are self-explanatory. Secondly, the order under Section 7(1)(b) of the COFEPOSA Act wa .....

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rectorate, Bombay. In paragraph 2 of the counter-affidavit, it is stated thus: As stated in the affidavit filed on behalf of the first respondent enquiries were made at the address given by the detenu while he was arrested and the report of the enquiries would show that the detenu was consciously evading the process of law. As revealed from the records enquiries were only made at the address given by the detenu and also the enquiries have resulted in evasive answer from the relations and the loc .....

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ion was passed by the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi. Hence, according to the respondents, the mere fact that the detenu was arrested in Kerala and kept in the custody in the Central Prison, Trivandrum does not give rise to a cause of action enabling the petitioner to file the petition before this Court. On behalf of the petitioner it was contended that the fact of detention is one of the essential facts to be proved in a petition for .....

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Jail in Delhi. Pursuant to a request by the Government of the United States of America for his extradition to that country to stand trial for violation of Fedeal fraud states and related offences allegedly committed by him during the period he had worked as an officer of the Chase Manhattan Bank, New York, proceedings have been initiated under the Extradition Act. In view of the letter of request received from the US Embassy in New Delhi for the extradition of the petitioner's-husband, the C .....

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was not maintainable in this Court. This contention was accepted by a Division Bench of this Court and Pareed Pillay, C.J., on behalf of the Bench, held as follows: Admittedly the order was passed by the Additional Chief Metropolitan Magistrate, New Delhi. As this Court has no jurisdiction over the Magistrate who submitted the report regarding the petitioner's-husband she can only approach that High Court having jurisdiction over the Magistrate who submitted the report to the Central Govern .....

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Metropolitan Magistrate. That Magistrate under Section 7(4) opined that a prima facie case has been made out in support of the requisition against the petitioner's-husband and accordingly committed him to prison to await the orders of the Central Government. As that Magistrate has reported the result of his enquiry and as the detailed representation of the petitioner' s-husband was also forwarded to the Central Government, it is true that the Central Government had to pass the order wit .....

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n Kerala, the Division Bench held that will not give rise to a cause of action. The Court further took the view that after the arrest, petitioner was detained in Tihar Jail, which was outside the jurisdiction of this Court. It was in the above context that the Division Bench held that the Original Petition for habeas corpus was not maintainable in this Court. 9. Under Article 226(2) of the Constitution of India, High Court has got jurisdiction with regard to matters where the cause of action, wh .....

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Central Prison, Trivandrum. In a petition for habeas corpus, detention is one of the important facts, which has to be established for securing the release of the detenu. Thus, the detention forms part of the cause of action to be proved in a petition for habeas corpus. In the Law of Extraordinary Legal Remedies by Forrest G. Ferris at page 58 dealing with the writ of habeas corpus, it is held as follows: Venue :- Application for the writ should, unless otherwise provided by statute, be made to t .....

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ity Act, 1971 and were kept in Jail at Baroda. Subsequently, they were removed to the jail at Jaipur outside the State. Fresh orders of detention were issued under the COFEPOSA Act without releasing them from the Jail. Petitioners challenged the maintainability of the writ petitions. Repelling the contention, a Division Bench of the Gujarat High Court held as follows : as the initial detention of the detenus at Baroda was continued by virtue of the impugned order of detention, the same furnished .....

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was outside the jurisdiction of the Nagpur Bench of the Bombay High Court. Petition was filed before the Nagpur Bench on the ground that the close relative of the detenu was residing within the territorial jurisdiction of the Nagpur Bench. In that context, the Court held as follows (at p. 617 of Cri LJ): However, there can be no doubt about the place of detention providing a cause of action. That place in the instant case is Bombay and hence, High Court at Bombay will have jurisdiction to entert .....

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ention were also served on the detenu at the same place. The question arose whether the Madras High Court has jurisdiction. The Court held that it has jurisdiction. The decision reported in State of Rajasthan v. Swaika Properties AIR 1985 SC 1289 - was distinguished on the ground that it was not a mere service of notice that happened in the state of Tamil Nadu. The Court held that the liberty of the detenu was deprived and the grounds of detention were served on him. Hence, according to the Cour .....

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has got jurisdiction and hence the Original Petition is maintainable in this Court. 12. Now we shall consider the contention raised by the petitioner that the detention of the detenu is illegal, since there was long delay in executing the order of detention. The order of detention was passed on 17-5-1993. The detenu was arrested only on 4-6-1996, after a delay of three years. In ground No. 2 of the Original Petition, it has been stated that the detenu had not absconded and that he was very much .....

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more than three years, the detention will become punitive. 13. A counter affidavit was filed by the first respondent on behalf of respondents 1 and 2. In paragraph 6 of the counter affidavit, it is stated that the detention order could not be executed as the detenu was absconding from his all known places until he was detained on 4-6-1996. According to the counter affidavit, the Enforcement Directorate, Calicut made enquiries at the detenu's house as many as 14 times. The relevant enquiry r .....

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people. 14. In this context, we called for the files for being satisfied as to the veracity of the delay in executing the detention order. The detenu was initially arrested by the Enforcement Authorities in Bombay. He was released on bail by the Chief Metropolitan Magistrate, Bombay. The Assistant Director, Enforcement Directorate, Bombay by his letter dated 28-1-1997 informed the Under Secretary of the Government of India, Ministry of Finance, Department of Revenue, New Delhi, as follows: As t .....

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enu was not then residing in the above address and there is nobody in the locality to give his present whereabouts. It was in this context that we directed the respondents to file an additional affidavit. But the additional affidavit also does not improve the situation. It is not enough if the authorities report that the detenu was not available in the address and hence the warrant of arrest could not be executed. No details are given as to what steps were taken to trace out the detenu. The orde .....

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e facts show that no bona fide attempt has been made by the authorities to trace out the detenu in order to execute the detention order. We are sorry to state that no bona fide attempts have been made by the authorities to execute the detention order. Neither the Enforcement Directorate in Kerala nor the Police Authorities in Kerala have cared to file any affidavit before this Court to show the efforts taken by them to execute the order of detention. This shows callous indifference on the part o .....

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xecution of arrest will vitiate the detention has come up for consideration before the Supreme Court in T.A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 : 1990 Cri LJ 578. In that case the Supreme Court held as follows (at p. 582 of Cri. L. J.): Similarly, when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of .....

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ppuram to whom the detention order was forwarded for execution has not filed any supporting affidavit explaining the delay in securing the arrest of the detenu. Under these circumstances, we hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention or .....

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