IFATH SULTANA Vs. GOVT OF T N

JUDGEMENT

(1.) Ifath Sultana wife of Kaleel Ahamed who has been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called COFEPOSA Act) has filed this writ petition under Art. 226 of the Constitution of India for his release.

(2.) As per the grounds of detention, it appears on 28-2-1989 the said Kaleel Ahamed arrived at Madras Airport as a passenger from Singapore by the Singapore Airlines flight SQ 042. When on suspicion he was questioned by the customs authorities whether he was keeping concealed any contraband articles he answered in the negative but however on persistent questioning he admitted that he was keeping concealed two gold bars with foreign markings in the chappals he was wearing and a gold bit in his wrist watch. The chappals were tom and they were found to contain one gold bar in each of them weighing 10 tolas each and the wrist watch when opened was found to contain a gold bit weighing 26 grams. The detenu then gave a confession statement on 1-3-89 on 2-3-1989 he was arrested and produced before the Additional Chief Metropolitan Magistrate. On 20-7-1989 the detention order was passed under Section 3(1)(i) and 3(1)(ii) of the COFEPOSA Act.

(3.) Mr. B. Kumar, learned counsel for the petitioner submits that a representation was sent on behalf of the detenu to the Governor which was received on 23-8-1989 and that was the only representation sent and that has not been considered at all by the detaining authority and on account of this the detention order is vitiated and the detentions is illegal. This point has been raised in the Additional grounds filed by the petitioner. In answer to this the respondent- Government in its counter would state that in this connection the Governor's Secretariat was addressed and a reply was received to the effect that the petition was acknowledged by Governor's office and the petition is being traced to send it to the Department. But it is not the respondent's case that the said petition was over sent by the Governor's office to the Department for consideration. Therefore it is a fact that a representation has been sent to the Governor and that has acknowledged on 23-3-1989 but that has not been sent to the Department for consideration. Therefore the representation sent by the petitioner to the Governor has not been considered at all. Making this submission Mr. B. Kumar, learned counsel for the petitioner cites a decision of the Supreme Court in "Raghavendra Singh v. Superintendent, District Jail, Kanpur, AIR 1986 SC 356: (1986 Cri LJ 493) wherein representations were, sent to the President of India among others requesting for revocation of the detention order and there was a delay of 75 days in considering and disposing of the same. It was contended that this was an enormous delay and therefore the detenus continued detention was illegal. Therein it was argued on the side of the detaining authority that the representation ought to have been sent to the Home Department which only deals with the matter and the delay has occurred because it has been sent to the President and since the President receives thousands of memorials and representations from all parts of the country regarding a multitude of affairs delay would occur in sending the representation to the Department and therefore the representation could not be expected to be considered as expeditiously as it could be considered if it had been addressed to the appropriate Ministry. The Supreme Court did not accept this argument stating that even if due allowance is given for the reasons stated by the detaining authority still 75 days' delay is a long delay and therefore continued detention is illegal. In that case at least the representation was received by the Department but in our case the Governor's office has not chosen to send the representation for consideration at all.