NOOR SALMAN MAKANI Vs. UNION OF INDIA

JUDGEMENT

(1.) Leave granted in S. L.P. (Crl.) No. 1484/ 93.

(2.) In both these matters, Noor Salman Makani who is detained under Section 3 of the COFEPOSA Act, 1974 ('Act' for short) is the petitioner. The petitioner is a citizen of India. On 26-8-92 he was travelling from Calcutta to Hongkong by Thai International Airways Flight No. TC-314. After completing the immigration formalities, he approached the customs counter for clearance. The Customs authorities opened his brief case and recovered huge quantities of foreign exchange of various countries, the value of which is estimated at Rs. 38,06,930 / -. On 27-8-92 he was produced under arrest before the C.J.M., Barasat and his application for bail was rejected. On 19-9-92 an order of detention dated 18-9-92 was served on him in the jail along with the grounds of detention. On 1-10-92 a declaration under Section 9(1) of the Act was issued and the same was served on the detenu on 13-10-92. On 15-10-92 the petitioner made a representation, to the Central Government against the declaration but the same was rejected. On 28-12-92 the petitioner made a representation before the Advisory Board but that was also rejected. Thereafter he filed a writ of habeas corpus and a Division Bench of the Calcutta High Court dismissed the same. As against the said order the present S.L. P. in which leave is granted has been filed. A separate Writ Petition (Crl.) No. 261/ 93 questioning the declaration under Section 9(1) of the Act has also been filed stating that certain new facts have come to light which invalidate the declaration. The detention order is questioned on the ground that there was delay in considering the representation and also on the ground that the detaining authority has not duly considered the circumstance that the detenu was already in jail and has simply made a bald statement in the grounds stating that "there is possibility of the detenu being release on bail" and the same shows that there is non-application of mind.

(3.) From the records it appears that the representation of the detenu addressed to the Joint Secretary, COFEPOSA New Delhi was forwarded by Dum Dum Central Jail authority under registered post on 15-10-92 and it was received by the Ministry's Office on 22-10-92 and it was forwarded to the Sponsoring Unit on 23-10-92 who received it on 26-10-92. After offering parawise comments the same was sent by speed post to the Ministry's office on 29-10-92 which was received by the Ministry's office on 2-11-92. The representation was put up before the Joint Secretary on 3-11-92 and the same was rejected on 4-11-92. The Finance Secretary recommended the rejection of the representation on 5-11-92 and finally the Minister for Finance rejected the same on the same day and a memo dated 6-11-92 was issued to the petitioner intimating him about the rejection.