MOHD. KHAN @JAVED Vs. UOI

JUDGEMENT

(1.) THE impugned detention order was pased under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA) On 28.9.1994 and was served on the detenu on 1.10.1994. The writ petition was filed on 12.10.1994. The main point raised by the petitioner's counsel is that there is evidence to show that the petitioner sent a representation on 17.10.1994 and the petitioner's brother has got an acknowledgment through post which shows that the cover was received by the Finance Department on 20.10.1994. According to the respondents, there was no entry in their register as to the receipt of the cover inasmuch as the cover was thrown away by the peon since the cover did not contain any representation or letter inside. In the counter filed by the respondents it has been accepted that the acknowledgement received at the petitioner's brother's residence shows that the letter was received in the concerned department of the Finance Ministry. As to whether the concerned peon had any knowledge that the cover was empty, we directed a further affidavit to be filed. The peon has filed an affidavit stating that at this distance of time when nearly 9 months have gone by, he cannot remember what actually happened.

(2.) LEARNED Additional Solicitor General, who appears in this case, notices that this case raises a serious question of departmental administration. He submits that instructions are being issued to see that even if covers are received empty, the covers should be preserved and relevant entries should be made in the register with a view to see that in future the question does not arise that empty covers were sent by detenus detained under COFEPOSA.

(3.) LEARNED counsel for the petitioner submits that the postal receipt shows that Rs. 10 was paid towards postal charges, whereas normal charges for registration will be Rs. 7. According to the counsel, this is an indication that the cover could not have been empty. No doubt a presumption has been drawn by the respondents that the cover must have been empty. This presumption is drawn from the fact that the peon has not preserved the cover. According to them, the peon does not preserve the covers whenever there are no contents in them.