Thottathil B. Radhakrishnan, J.
“C. R.”
This writ petition is filed seeking a writ in the nature of certiorari to quash detention order and grounds of detention under Sections 3(1)(i) and 3(1)(iii) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, for short, “COFEPOSA Act”, in re the petitioner.
2. The petitioner, a female, stated to be around 18 years of age, was intercepted at the Nedumbasseri Airport along with another female Arifa and her husband and their child on the ground that there was illegal import of gold into India effectively concealing such materials. Later, the departments picked up another person from the International Airport in New Delhi, who is stated to be the kingpin of the transaction of smuggling.
3. Customs Department initiated proceedings by registering the matter on an information following which the the petitioner and others were arrested immediately following their interception. The petitioner was granted bail with stringent condition in that case. In the meanwhile, Central Bureau of Investigation, for short, 'CBI', has registered a separate case invoking Sections 120(b) and 420 IPC and different provisions of the Prevention of Corruption Act, for short, 'PC Act', and enlisted some of the customs officials as accused persons along with the aforenoted persons, including the petitioner. In those proceedings also, the petitioner stands with bail having been granted by the appropriate court.
4. The impugned order of detention was passed on 13/11/2013 and was executed on 23/11/2013. The period of detention stands extended and is now due to expire on 22/11/2014.
5. At the outset, we may notice that the petitioner delivered a full term baby on 04/03/2014 at the Women and Children's Hospital, Thiruvananthapuram. The health condition of the baby is reported to be good and the mother and the baby were always under proper supervision through the monitoring process of the said hospital as is disclosed by the materials on record.
6. The detaining authority took note of the different materials, including the statement stated to be recorded from the petitioner under Section 108 of the Customs Act. Similar statements of the other persons, who were also detained on interception, were also taken into consideration. The petitioner had not retracted her such statement at any time before she made representations in response to the order of detention. We just mention this to proceed with the facts to note that there were retractions by others, as stated. We may hasten to add that these observations in this judgment will not stand in the way of the petitioner or the other persons as well as the department in any proceedings under any statute.
7. The detaining authority has further taken into consideration the different bail applications and the fact that the CBI has registered a case as noted above. It also took cognizance of the fact that the disclosures made in the statements under Section 108 of the Customs Act showed that prior to 19/09/2013, the date of interception of the petitioner, she was involved in at least three previous prejudicial activities of smuggling after she attained the age of majority on 24/04/2013. These are materials available in the statement stated to have been recorded from the petitioner under Section 108 of the Customs Act.
8. The learned counsel for the petitioner argued firstly that all the sheets and particulars of the materials relied on in the detention order ought to have been served, however that, some of those materials which have been enumerated by the petitioner were not served at all. The more important plea is that what was served did not contain Malayalam version of some of the portions of some of the documents. According to the learned counsel for the petitioner, this had incapacitated the petitioner from making an effective representation which is her constitutional eligibility in terms of Article 22(1) of the Constitution of India. We have looked into the entire materials as provided by the petitioner and the acknowledgment made by her to the Superintendent of the Women's Prison, Attakulangara, Thiruvananthapuram in writing stating that she has obtained readable copies of all the documents which were served to her and that they were legible and no pages are seen missing. She had also given in writing that she has studied up to plus two and her English education is up to SSLC standard while she learnt Arabic in classes 11 and 12. The materials served on the petitioner vis-a-vis those relied on by the detaining authority clearly show that every item of relevant material which was taken by the detaining authority has been served on the petitioner. There is no substantial prejudice caused to the petitioner in this regard. There is also no infraction of the constitutional obligation of the detaining authority to furnish materials relied on by it.
9. The learned counsel for the petitioner then argued that the fact that the petitioner was pregnant was a relevant fact, but appears to have not been considered by the detaining authority. As already noted, she delivered a full term baby on 04/03/2014. She was arrested on 19/09/2013. Even assuming that she was pregnant, the fact of the matter remains that the materials on record show that on search, she was found to be carrying manipulated over jackets inside the burkah and those jackets carried gold in different forms in packets which were stitched on to the jacket. The fact that she was pregnant is an irrelevant material, more particularly because, there can be no presumption or assumption that a pregnant woman could not, or would not, carry gold or even commit any act punishable in law. While making the detention order on 13/11/2013 and executing it on the detenue on 23/11/2013, the fact was that she was pregnant. The factum of pregnancy was irrelevant to consider whether she has to be brought under the cover of COFEPOSA. The fact that pregnancy was moving to an advanced stage during the period when she was in jail was also irrelevant. We cannot assume or presume that a pregnant woman would not indulge in any activity prejudicial to the interest of the State economy, including by getting involved in smuggling and related activities. This plea, therefore, fails.
10. The learned counsel for the petitioner then argued that the papers in relation to the case registered by the CBI were not properly considered by the detaining authority. He says that though the fact that CBI has registered such a case was noted by the detaining authority, the contents of that case have not been considered inasmuch as the papers relating to the registration of that case were not before the detaining authority. To buttress his argument, the learned counsel for the petitioner referred to the decision in Smt.Elsy George v. Union of India & Ors. (2002 CrlLJ 540) wherein the Division Bench of the Bombay High Court held that the non-consideration of an FIR lodged by the CBI in a particular case had made the detention order in that case unsustainable. We have gone through that judgment. It dealt with a case where the CBI had lodged an FIR against the officers of a department and Board of Directors of a company without naming therein a servant of the company against whom alone proceedings on COFEPOSA were levied. So much so, the fact that the CBI had not enlisted the said servant of the company as an accused in the case registered by it, would have been a relevant fact. But, in the case in hand, even in the case registered by the CBI, the petitioner is one of the accused persons. All the persons accused to have committed offences punishable under either IPC or the Customs Act, following their interception and arrest by the Customs authorities are enlisted as accused persons, along with some of the customs officials when the CBI filed the FIR in terms of the provisions of the PC Act and IPC. This makes all the difference. Therefore, in this case, even if the papers relating to the case registered by the CBI were not placed, we are unable to adopt the approach taken by the Bombay High Court in Smt.Elsy George (supra). We, therefore, find no way to uphold the submission on behalf of the petitioner in that regard.
11. For the aforesaid reasons, we do not find that there is any ground to hold that the impugned order of detention is vitiated by non-application of mind or is liable to be set aside on any ground as to non-consideration of relevant materials or consideration of irrelevant materials. The challenge to the impugned order, therefore, fails.
12. As already noted, the detention order was initially passed on 13/11/2013 and executed on 23/11/2013. With the passage of time, the period of detention was extended till 22/11/2014. The petitioner was not able to visit her parental home when she lost her father in the midst, as is disclosed in the proceedings. A baby was born to the petitioner while she was undergoing the detention. That baby is yet to go to its near relatives along with the mother. In these extraordinary humanitarian circumstances, we take a lenient view and order that notwithstanding that we are affirming the order of detention hereby, the detenue shall be released forthwith.
In the result, while affirming the impugned detention order, it is directed that the detenue/petitioner shall be released, if her continued presence in custody is not required in connection with any other detention order or any other case against her. She shall be set at liberty forthwith. This writ petition is so ordered.
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THOTTATHIL B. RADHAKRISHNAN JUDGE kns/-
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BABU MATHEW P. JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE