KLOS KRZYSZTOF WIESLAW Vs. THE STATE GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY, PUBLIC (S.C.) DEPARTMENT, FORT ST. GEORGE, MADRAS-9,

JUDGEMENT

(1.) THE petitioner herein challenges the detention ordered by the first respondent vide order dated 24 -6 -1996 under S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter called 'COFEPOSA' Act as also the further order of declaration dated 12 -7 -1996 passed under S. 9(1) of the said Act, whereby the detention of the petitioner was extended by one more year.

(2.) PETITIONER is a foreign national. He was holding a German passport. He was bound for Colombo by Air Lanka Flight on 14 -5 -1996 when he was intercepted by the Customs Intelligence Officers at Anna International Airport, Chennai, on suspicion that he was carrying foreign currency. He was taken to the Visadex situated in the departure hall. His baggages were checked. On questioning, he had declared that he was carrying U.S. Dollars 210 and Pound Sterling 600 and that he did not have any other currency either on his person or in his baggage. When the 'Karrimor' haversack, which he was carrying was checked, the inner lining was found to be unduly thick and therefore it was ripped open and it was found that number of bundles of foreign currency were kept concealed between the two sponge sheets. It was found that he was in all carrying 28,350 Oman Riyals, 2,23,500 Saudi Riyals, 8640 Bahrain Dinars, 23000 Qatar Riyals, 6000 Kuwait Dinars, 1,75,300 U.A.E. Dirhams, 4850 Pound Sterlings and 55,500 French Francs. The total value of the assorted foreign currency was Rs. 81,18,246.50 on the date of seizure. He gave a voluntary statement on 15 -5 -1996, wherein, he owned that he visited number of places including Bangalore, Kovalam and Calcutta and that at Kovalam, he met one Hans Fredrick, who was a rich person and along with him he went to Calcutta and further to Bombay. It was further stated by him that Hans Fredrick promised to pay him 1000 US dollars if he carried a huge currency to Singapore, that he gave a haversack and a Video camera and told the petitioner to take flight from Trichy to Colombo and to Singapore, that a Bombay to Madras Jet Airways ticket was given by the said Hans Fredrick and that is how the petitioner reached Madras on 13 -5 -1996. He started for Trichy at 10 p.m. by a bus reached Trichy but missed the flight to Colombo. Therefore, he went to Air Lanka Office and got a ticket for Madras to Colombo to Singapore and then came back to Madras from Trichy and went to the International Airport at 9 p.m. and went to check in counter where he checked in the haversack given by his friend Hans. He also carried one bag as hand baggage. On the basis of the statement and on the basis of the recovery, the detention order as stated above has been passed against the petitioner and he was also arrested on 15 -5 -1996, produced before the Additional Chief Metropolitan Magistrate, E.O.II, Madras and remanded to judicial custody till 28 -5 -1996. He filed bail application on 15 -5 -1996 stating that he was innocent and that his statement had been obtained from him by use of force and threat and the statement was retracted. However the petition for bail was dismissed. Another bail petition was filed by the petitioner on 16 -5 -1996 but the said petition was also dismissed by the Court on 7 -6 -1996. It was found that the statement given by him was false as no Hotels, the names of which were given by the petitioner, existed either at Kovalam or at Bombay nor was it established that the petitioner along with his friend Hans Fredrick had stayed at such hotels. On the basis of this material, the petitioner was detained as stated above, on the ground that he was likely to indulge in the smuggling activities and that recourse to normal criminal law would not have the desired effect of effectively preventing the petitioner from indulging in smuggling activities.

(3.) IT seems that the detention order was served to the petitioner on 25 -6 -1996 and the petitioner made the representation immediately thereafter on 16 -7 -1996. The declaration order however seems to have been served on the petitioner on 25 -7 -1996. Therefore, the first representation made by the petitioner was even before the service of the declaration and there was no question of challenging the declaration order therein. This representation of the petitioner was rejected by the State Government on 13 -9 -1996 and the petitioner was so informed on 18 -9 -1996. However, it seems that as soon as the petitioner got the notice that the Advisory Board was to meet on 9 -8 -1996, he prepared another representation dated 3 -8 -1996. This representation was prepared by the petitioner's counsel in English and it is requested therein that the said representation should be forwarded to all the authorities who are empowered to consider the representation. Needless to mention that in this representation, there is a challenge both to the detention order and the declaration order. The petitioner contends that three copies of this representation dated 3 -8 -1996 were handed over to the Advisory Board. It seems that the State Government considered this representation dated 3 -8 -1996 and rejected the same on 19 -8 -1996, while the Central Government rejected the first representation dated 16 -7 -1996 as also the second representation dated 3 -8 -1996 and the third representation dated 7 -9 -1996 by a single order dated 18 -10 -1996. The petitioner was informed by me Central Government of the rejection of his representation on 23 -10 -1996.