SAFIYAversusGOVERNMENT OF KERALA

A                                  SAFIYA
                                     v.
                            GOVERNMENT OF KERALA

                                    JULY 28, 2003

B                [M.B. SHAH AND DR. AR. LAKSHMANAN, JJ.]
                                                                                       ...
         COFEPOSA Act; Section 3(J)(iv):

         Preventive detention on the ground of involvement in smuggling
C activities-Representations against detention rejected by the Detaining
    Authority and the Central Government-Challenge to-Dismissed by the
    High Court-On appeal, Held: There was no undue or unexplained delay in
    disposing of the representation by the Central Government after receipt of
    English translation of documents from the State Government-Revocation of
D   detention order against the other detenu in the same matter not relevant
    since detention order against detenu was issued only after subjective
    satisfaction of the authorities-Hence, High Court rightly held that the
    detenu has violated the provision of law against the larger national interest.

          Words and Phrases:
E
          'subjective satisfaction '-Meaning of

         According to the prosecution, in a search conducted by the Department
    of Excise and Customs, the detenu was involved in smuggling activities.
    Consequently, he was detained under preventive detention as per provisions
F   under Section 3(1)(iv) of the CO FE POSA Act. His representations against
    detention were rejected by the Detaining Authority as well as the Central
    Government. Wife of the detenu challenged the detention before the High
    Court. High Court dismissed the Writ Petition. Hence the present appeal.

           It was contended for the appellant that since the opinion of the Advisory
G   Board that no sufficient grounds existed for the detention of another detenu
    in the same transaction/occurrence, was not placed before the authority, it
    vitiated his subjective satisfaction, that there was inordinate delay caused in
    considerin~ the representation; and that relevant documents in Malayalam
    were not translated into English; that due to non-availability of relevant

H                                         832
                       SAFIY Av. GOVT. OF KERALA                          833
documents in English, consideration of his representation by the authority       A
was no consideration in the eyes of law; and that the detention order was
vitiated.

     On behalf of the Union of India, it was submitted that there was no
unexplained delay in disposing of the representations of the detenu by the
Central Government                                                               B
      Dismissing the appeal, the Court

      HELD: 1.1. Revocation of the detention order as against other detenu
has no relevance as far as the detenu in the instant case is concerned. Advisory
Board, after hearing the detenu, opined that there were sufficient grounds C
for the detention of the detenu. Under the circumstances, non-placing of the
order revoking the detention order of other detenu before the Advisory Board
does not vitiate the detention order issued against the detenu. The detention
order was passed after perusing the relevant and material documents and after
arriving at subjective satisfaction of the authorities. (837-B-D)                D
     1.2. The dates and other details given in the counter affidavit by the
Central Government would only show that there has been no undue or
unexplained delay in disposing of the representation of the detenu. [838-BJ

      1.3. The Detaining Authority had forwarded to the Central Government       E
a report under Section 3(2) of the COFEPOSA Act, which consisted of
Detention Order, the ground of detention and relied upon documents including
the English translation of the documents which were in Malayalam language.
Hence, the English translation of the Malayalam representation of the detenu
and the English translation of the documents relied upon were available before
the Central Government at the time of consideration of the representation of     F
the detenu. [838-C-D)

      1.4. There are enough materials to show the involvement of the detenu
in smuggling activities. The State Government (Detaining Authority) have
considered all the aspects and perused the relevant material documents before
issuing the detention order. Such detention order was issued based on the G
subjective satisfaction as to the necessity of detaining the detenu by invoking
the provisions of the COFEPOSA Act. The detenu, therefore, is not entitled
to challenge the subjective satisfaction arrived at by the detaining Authority
in these proceedings. (838-F-GJ
                                                                                 H
    834                    SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A          1.5. The liberty of the citizen is undoubtedly very important. The duty
    of the Court is to ensure that there is strict compliance with the provisions
    of law. In the instant case, strict compliance of the provisions of law has been
    made by the High Court. The Court cannot lose sight of the fact that those
    who commit economic offences do harm to the national interest and the
    economy. High Court, while examining the case, has taken a cumulative view
B   of the situation and had seen all the relevant facts. On consideration of the
    totality of the circumstances, the High Court rightly came to the conclusion
    that the detenu has violated the provisions of law and his activities are not in
    the larger national interest and that the Court should be slow to come to the
    aid of the detenu. (839-H; 840-A-B)
c           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 913 of
    2003.

          From the Judgment and Order dated 11.2.2003 of the Kerala High Court
    in C.P. No. 29561 of2002.
D           B. Kumar, P.K. Manohar for the Appellant.

         R.N. Trivedi, Additional Solicitor General, T.L. Viswanatha Iyer, T.V.
    Ratnam, Ms. Shweta Garg, K. Subba Rao, B. Krishna Prasad, John Mathew
    and K.R. Sasiprabhu for the Respondents.

E           The Judgment of the Court was delivered by

            DR. AR. LAKSHMANAN, J. Leave granted.

          This appeal is directed against the final judgment and order dated
    11.2.2003 passed by the High Court ofKerala in O.P. No. 29561 of2002 filed
F   by the appellant herein, who is the wife of the detenu - T.P. Moideen Koya
    who is under preventive detention under the COFEPOSA Act vide order of
    detention dated 21.02.200 I.

          The case of the prosecution in brief is that on 18.08.200 I a search was
    conducted by the Superintendent, Central Excise and Customs on the residence
G   of one Kunjumon. In the search Indian and Foreign currencies and Gold
    biscuits were found. During the course of investigation, the statement of
    Mohd. Mustaffa, driver and employee of the said Kunjumon and P. Mohammed
    the cousin of Kunjumon were recorded. According to the prosecution, the
    detenu is involved in dealing in smuggled goods and, therefore, rep.ort was
H   made to the detaining authority for detaining the detenu under Section 3(1)
        SAFIYA v. GOVT. OF KERALA [DR. AR. LAKSHMANAN, J.)                 835
(iv) of the COFEPOSA Act, 1974. The detenu was detained in execution of A
the order of detention on 04.09.2002 and detained in Central Jail,
Thiruvananthapuram. The detenu submitted his representation to the Detaining
Authority and the Central Government and the same were rejected.

       Safiya, the wife of the detenu, filed a writ petition before the High Court
of Kerala challenging the detention of her husband T.P. Moideen Koya (the B
detenu) on the grounds that the order of detention of the detenu is primarily
based upon the statement recorded from Mohammed Mustaffa, an employee
of Kunjumon and that an order of detention was passed against the said
Mohammed Mustaffa and he was detained by an order of detention dated
 17.10.2001 passed by the Detaining Authority. The said case was placed C
before the Advisory Board and the Advisory Board submitted in its opinion
that there is no ground for detaining the said Mohammed Mustaffa. In
accordance with the report of the Advisory Board, the Detaining Authority,
the State of Kerala, by its order dated 15.01.2002 revoked the detention
against the said Mohammed Mustaffa. It is the case of the appellant that
since the facts relating to the said Mohammed Mustaffa is similar and arising D
out of the same set of circumstances and the order of detention having been
held to be improper by the Advisory Board and subsequently having been
revoked by the State Government, the said facts and materials ought to have
been placed before the Detaining Authority by the Sponsoring Authority and
the same ought to have been considered before passing the order of detention E
against the detenu herein. The appellant also raised the contention that there
has been inordinate delay in considering and disposing of the representation
of the appellant. It was also contended that there is no material to justify the
involvement of the detenu and, therefore, the order of detention is based on
no material.
                                                                                  F
      The High Court dismissed the writ petition holding that the delay in
disposing of the representation was reasonable. The High Court passed a
detailed judgment considering all the contentions raised by the counsel for
the appellant before it including the rulings cited before it. Aggrieved by the
said judgment, the present appeal has been filed before this Court.
                                                                                  G
      We have perused the pleadings and the other Annexures filed along
with this appeal and also the counter affidavits filed by the State Government
of Kerala and the Government of India both in the High Court and also in this
Court. We heard Mr. B. Kumar, learned senior counsel for the appellant and
Mr. R.N. Trivedi, learned Additional Solicitor General for the Union of India
                                                                                  H
                                                                                        .'

    836                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A and Mr. T.L. Viswanatha Iyer, learned senior counsel for the State of Kerala.
          Mr. B. Kumar after inviting our attention to th~ pleadings raised the
    following three contentions:-

           I.   Non-placing of the opinion of the Advisory Board which has
B               opined that there is no sufficient cause for detention of the
                detenu Mohammed Mustaffa involved in the same occurrence
                which opinion was rendered even in December, 200 I, long before
                the passing of the order of detention in the instant case on
                22.01.2002 amounts to non-placing of relevant ~nd' important
                document such that the subjective satisfaction stands vitiated.
c          2    There is inordinate delay in considering the representation of the
                detenu.

           3.   Several documents on which the grounds of detention are
                substantially based are only in Malayalam and no translation
                thereof into English has been provided and, therefore, the
D
                consideration of the representation without taking into the
                consideration of these vital material is no consideration in the
                eyes of law as in all probabilities the person who dealt with the
                representation and took a decision thereof on behalf of the second
                respondent could not be knowing Malayalam. Mr. Kumar also
E               submitted that in the facts disclosed in the grounds of detention
                it would be a case of no material against the detenu and sweeping
                allegations of violations of the Customs Act and dealing in
                smuggled goods to a huge figure has been arrived at totally
                unsupported by any material. Therefore, he would submit that
                the detention order is vitiated since the conclusion is not
F               supported by any material annexed to the grounds of detention.

          Learned Additional Solicitor General appearing for the Union of India
    submitted that the appeal is devoid of any merit or substance and deserves
    to be rejected outright by this Court and that the delay, if any, on the part
G   of the Central Government has been properly explained in para 3 of its counter
    affidavit filed in this Court. He, therefore, submitted that the time of six days
    taken by the competent authority was not a negligence or callous in action
    on the part of the Central Government and since there has been no undue
    or unexplained delay in disposing of the representation of the detenu, the
    appeal is liable to be rejected by this Court.
H
        SAFIY Av. GOVT. OF KERALA [DR. AR. LAKSHMANAN, J.]                 837
      Mr. T.L. Viswanatha Iyer appearing for the Government of Kerala drew        A
our attention to the relevant paragraphs in the counter affidavit and submitted
that the appellant has no case on merits and, therefore, is liable to be
dismissed.

      In regard to contention No. I, the answering respondent submitted that
the case against the detenu was not built upon the statement of Mohammed B
Mustaffa alone. The records clearly show that Mohammed Mustaffa was
dealing in gold biscuits and distributing tube money as instructed by Kunjumon
and that the business between Kunjumon and the detenu was not done
through Mohammed Mustaffa. In our opinion, the revocation of the detention
order issued against Mohammed Mustaffa has no relevance as far as the C
detenu T.P. Moideen Koya is concerned. The detenu was personally heard by
the Advisory Board. After hearing the detenu and perusing the records, the
Advisory Board opined that there were sufficient grounds for the detention
of the detenu. Under the circumstances, we are of the opinion that the non-
placing of the order revoking the detention order of Mohammed Mustaffa
before the Advisory Board does not vitiate the detention order issued against D
the detenu. The detention order was issued after perusing the relevant and
material documents and after arriving at subjective satisfaction of the authorities.
We are, therefore, of the view that the High Court has rejected the said
contention, rightly so in our opinion.

       In regard to contention No.2 delay in consideration of representation, E
the Central Government has clearly and explicitly explained the reasons for the
delay insofar as they relate to the Central Government. It is seen from the
records produced that a copy of the representation dated 26.09.2002 in
Malayalam language of the detenu, sent by the Superintendent, Central Prison,
Thiruvananthapuram dated 26.09.2002 was received in the COFEPOSA unit of F
the Ministry of Finance, Department of Revenue, Central Economic Intelligence
Bureau, New Delhi. Parawise comments and the English translation of the
representation were called from the S11onsoring Authority on the same day
i.e. 30.09.2002. The comments on the representation along with English
translation, sent by the Sponsoring Authority vide their letter dated 04.10.2002
were received in the COFEPOSA unit on 07.10.2002 (in between 05.10.2002 G
and 06.10.2002 were holidays, being Saturday and Sunday). The case filed
along with relevant material was submitted to the Under Secretary, COFEPOSA
on 07.10.2002. The Under Secretary processed the case and put up to the
Joint Secretary on the same day i.e. 07.10.2002. The Joint Secretary submitted
the file to the Secretary, Ministry of Finance, Department of Revenue on H
    838                    SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 07.10.2002 itself. The Secretary, Ministry of Finance, Department of Revenue,
    considered the said representation on behalf of the Central Government and
    rejected the same on 17.10.2002 (in between 12th and 13th October, 2002 were
    holidays being Saturday and Sunday and 14th and 15th October, 2002 were
    holidays being Mahanavami and Dussehra festivals). The file was received
    back from the office of the Secretary, Revenue on 18.10.2002. Memorandum
B   of rejection of representation was issued to the detenu herein through the
    concerned Jail Authority at Thiruvananthapuram on 18. I 0.2002 and the same
    was received by the detenu through the concerned Jail Authority on 21.10.2002.
    The dates and other details given above in the counter affidavit by the
    Central Government would only show that there has been no undue or
C   unexplained delay in disposing of the representation of the detenu herein.
    The said contention is, therefore, rejected.

        Regarding the third contention, we are of the opinion that the same has
  no merits. In this regard, it is submitted by the respondents that the Detaining
  Authority of the Government of Kerala had forwarded to the Central
D Government the report under Section 3(2) of the COFEPOSA Act, which
  consisted of Detention Order, the ground of detention and relied upon
  documents including the English translation of the documents which were in
  Malayalam language. Thus, the English translation of the Malayalam
  representation of the detenu and the English translation of the documents
  relied upon were available before the second respondent at the time of
E consideration of the representation of the detenu was also available. Therefore,
  the allegation of the petitioner that English translation of the documents
  which were in Malayalam language has not been supplied to the second
  respondent is baseless.

          A careful perusal of the records placed before this Court would show
F that there are enough materials to show the involvement of the detenu in the
    smuggling activities. The State Government (Detaining Authority) have
    considered all the aspects and perused the relevant material documents before
    issuing the detention order. Such detention order was issued based on the
    subjective satisfaction as to the necessity of detaining the detenu by invoking
G   the provisions of the COFEPOSA Act. The detenu, therefore, in our opinion,
    is not entitled to challenge the subjective satisfaction arrived at by the
    Detaining Authority in these proceedings.

        Learned senior counsel for the appellant, contended that there is non-
  application of mind on the part of the Detaining Authority. This contention
H has no merits. It is argued that the detention order was issued against the
        SAFIY Av. GOVT. OF KERALA [DR. AR. LAKSHMANAN, J.)                  839
detenu with a view to prevent him from dealing in smuggled goods otherwise A
than by engaging in transporting or concealing or keeping smuggled goods.
A perusal of the representation submitted by detenu dated 26.09.2002 shows
that he has understood the grounds of detention properly and has made an
effective and meaningful representation for revoking the detention order. The
translated version of the ground of detention has also been furnished to the B
detenu. While serving the grounds of detention on the detenu on 12.09.2002,
he has made an endorsement to the effect that he has read and understood
the grounds of detention and he has no complaint in this regard. We are not
required to decide whether subjective satisfaction of the Authority is justified
or not, yet a perusal of the records would reveal that the Detaining Authority
has considered all the relevant aspects borne out from the aforesaid records C
before issuing the detention order and after arriving at the subjective
satisfaction as to the necessity of detaining him by invoking the provisions
of the COFEPOSA Act. The seized documents show that the detenu in this
case had dealt with 290 smuggled gold biscuits valued at Rs. 1.5 crores with
Kunjumon and had carried out transactions worth Rs. 18 crores during the
period 01.08.2001 to 15.08.2001. Mr. Bapu who was involved in the contribution D
of tube money stated that the detenu is an accomplice of Kunjumon and he
had telephoned him at his residence on the No. 370444 appearing in his note
book.

      It is also seen from the counter affidavit filed by the Government of         E
Kerala in this Court (para 2.11) that about 9,300 smuggled gold biscuits were
transported by Kunjumon as per the documents seized from his residence and
out of this the detenu T.P. Moideen Koya had transacted about 290 gold
biscuits valued approximately Rs. 1.5 crores. Out of Rs. 40 crores of Haw ala
transactions made by Kunjumon. The detenu Moideen Koya had transacted
about Rs. I 8 crores. This, according to the respondent, is a very vital evidence   F
establishing their smuggling activities.

      As already seen, the case against the detenu is not built upon the
statement of Mohammed Mustaffa alone. The said Mustaffa was also dealing
in gold biscuits and distributing tube money as instructed by Kunjumon.
                                                                                    G
      Since we arc disposing of the appeal on factual basis and on the basis
of the records placed before us, we are not referring to the judgments cited
by the learned counsel for both the sides.

      The liberty of a citizen is undoubtedly very important. It is our duty to
ensure that there is strict compliance with the provisions of law. In our view, H
    840                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A strict compliance of the provisions of law has been made. The Court, in our
    opinion, cannot lose sight of the fact that those who commit economic
    offences do harm to the national interest and economy. Thus, the High Court,
    while examining the case, has taken a cumulative view of the situation and
    had seen all the relevant facts.

B         On a consideration of the totality of the circumstances, the High Court
    came to the conclusion that the detenu has violated the provisions of law and
    his activities are not in the larger national interest and that the Court should
    be slow to come to the aid of the detenu. We agree with the conclusion
    arrived at by the High Court.

C        The instant appeal filed by the wife of the detenu is totally devoid of
    any merit or substance and as such we have no hesitation in rejecting the
    same. The appeal shall stand dismissed.

    S.K.S.                                                     Appeals dismissed.