K BALUCHAMY Vs. JOINT SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE NEW DELHI

JUDGEMENT

(1.) V.S. SIRPURKAR, J.: 1. Petitioner herein challenges the order dated 9.6.1999, passed by the first respondent, under the provisions of Section 3 of COFEPOSA Act, directing his detention for preventing him from taking part in the smuggling activities.

(2.) THE grounds suggest that the petitioner arrived on 10.2.1999 at Tiruchy Airport by Flight No.IC 968, which came via. Kuwait-Sharjah and the officer concerned at the metal detector frame got suspicious and, therefore, the petitioner was sent to counter No.9 for detailed examination wherein, he disclosed his name as Baluchamy, son of Karuppiah and produced a briefcase for examination. He had declared textiles, toilet items and VC tapes valued at Rs.1,000 and when asked whether he was carrying any gold or silver or dutiable goods, the petitioner replied in negative and, therefore, he was physically examined in the presence of independent witnesses during which, it was found one cloth pouch tied around the petitioner's waist and it was stitched with nylon zip with fifty inner chambers and ultimately it was found that those inner chambers contained fifty gold metal bars with markings "Emirate Good Gold 10 Tolas 999.0". THE Petitioner admitted that he was not carrying any valid documents for it. In the suitcase of the petitioner there was one brown colour rexin bag in which some currency in U.S. Dollars was found, which was totalling US $ 56000 equivalent to Rs.2,35,200. THE gold bars as well as the foreign currency, for which there were no valid documents, were seized on the ground that they were being tried to be smuggled into India. THE other items were also seized. It is pointed out that the petitioner gave a voluntary statement on 10.2.1999 and stated that the petitioner was having a passport which was issued at Indian Consulate at Dubai and that he was doing fishing work for the last seven months and that he got acquaintance with one Kili of Tiruchy at a Dubai hospital where he was sick and he offered gold bars to the petitioner and asked him to hand over to one Gunasekaran outside the Tiruchy Airport without the knowledge of the Customs Officers and offered to give flight tickets form Sharjah to Tiruchy; he got the xerox copies of the passport of the petitioner and gave the cloth pouch containing fifty gold bars which he had asked the petitioner to tie around his waist; he was also instructed that he should declare the goods viz., toilet items, textiles and VC Tapes alone and not the gold bars. It was pointed out in the grounds to Kili and Gunasekaran could not be apprehended. THE petitioner was produced before the Judicial Magistrate No.1, Tiruchy and he was remanded to judicial custody till 25.2.1999 and his house was also searched. THEreafter, the petitioner tried to move the bail applications, etc. and ultimately he was ordered to be released on bail by order dated 11.3.1999 on some conditions which conditions also came to be ultimately modified directing the petitioner to appear before the authorities concerned on every Monday and Thursday. From these grounds, it was deduced that the petitioner was involved in the smuggling activities as defined in Sec.2(39) of the Customs Act, 1962. It was also apprehended that the petitioner would continue to indulge in smuggling activities unless he was prevented from doing so by detaining him under the provisions of the COFEPOSA Act.

(3.) THE next case relied upon by the learned counsel for the petitioner is reported in Rajendrakumar v. State of Gujarat, A.I.R. 1988 S.C. 1255. However, there also the factual scenario was entirely different apart from the fact that in Rajendrakumar's case, the detention order was not under the provisions of COFEPOSA Act. In that case itself the Apex Court explained that the rule as to the unexplained delay in taking action is not inflexible and that a distinction must be drawn between the delay in making an order of detention under a law relating to Preventive Detention like COFEPOSA Act and the delay in complying with the procedural safeguards of Art.22(5) of the Constitution. THE Apex Court explained that a mere delay in passing the order under a law like COFEPOSA Act, the courts should not merely on the account of the delay assume that such delay is not satisfactorily explained. We are of the opinion that this case would be more helpful to the respondents than the petitioner.