BAJAJ PREETI TULSIDAS Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This petition is filed by the detenue herself, who has been detained by the first respondent under the provisions of Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, by an order dated 24-2-98. It is suggested that the detenue was intercepted at Madras International Airport on 7-1-98 while she was travelling to Singapore, when it was found that she was carrying 37,000 Deutshe Marks equivalent to about Rs. 8,11,110/-. She was also having Indian Currency and this foreign currency which was found on her but not declared by her. After the usual formalities, she was arrested and later on detained by the impugned order dated 24-2-98. It will not be necessary for us to go into the factual details of the detention in view of the singular point raised by the learned counsel for the petitioner.

(2.) The learned counsel points out that the petitioner had sent a representation dated 9-3-98 to the Central Government and this representation came to be rejected by the Central Government only on 27-4-98. According to the learned counsel, there was unexplained delay in consideration of the said representation and that by itself was fatal to the further detention of the petitioner. The learned counsel invited out attention to the counter-affidavit filed by the Union of India. This counter-affidavit has been sworn by an Under-Secretary, (COFEPOSA), Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue. As per this affidavit, it is sworn in para 5 that the representation dated 9-3-98 was received in the office of the Joint Secretary (COFEPOSA) through the Government of Tamil Nadu only on 19-3-98. The same was diarised in COFEPOSA Unit on 20-3-98, and by a letter dated 23-3-98, the comments were invited from the Sponsoring Authority, since 21-3-98 and 22-3-98 were holidays being Saturday and Sunday. It is further reiterated that the Sponsoring Authority furnished its comments on 2-4-98, which were received in COFEPOSA Section on 6-4-98. Now, if the comments were received on 2-4-98, there appears to be no explanation why the said comments were received in the COFEPOSA Section only on 6-4-98. Be that as it may, the affidavit further goes on to suggest that the case file was thereafter put up before the Under Secretary, COFEPOSA on the same day, who examined the file and submitted the same to the Joint Secretary, COFEPOSA on the same day. However, since the Joint Secretary sought certain clarifications and returned the file to the Under-Secretary on the same day, the information sought by the Joint Secretary was called from the detention authority namely the State Government of Tamil Nadu vide the letter dated 7-4-98. The learned counsel thereafter invited our attention to the following portion of this very paragraph :-

(3.) The affidavit thereafter goes on to say that the file was received in the office of the Secretary (Revenue) on 24-4-98 and the same was rejected on 27-4-98, since 25th and 26th April were closed holidays being Saturday and Sunday. It is further reported that a memo, intimating about the rejection, was issued on 28-4-98. The learned counsel very strenuously submits that this explanation amounts to no explanation whatsoever, because it is not known as to what sort of comments were sought for by the Joint Secretary (COFEPOSA) and as to why those clarifications were not sent by the State Government. Be that as it may, the learned counsel further submits that in fact, if the authorities felt that the representation was addressed to the State Government and as such the State Government itself alone was liable to respond, then it is not known as to why the file was kept pending from 7-4-98 right till 23-4-98 at the level of the Under-Secretary. The submission is correct in our view. There is really no explanation whatsoever as to what has happened to the file between 7-4-98 and 23-4-98. Again, it is not known as to why it dawned upon the Under-Secretary only on or about 23-4-98 that it was not up to the Central Government to respond to the representation, since the representation was made to the State Government only. Now therefore, the period between 7-4-98 and 23-4-98 is not at all explained.