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Judgment
V.S. Sirpurkar, J.—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.
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:--
Since the reply of the State Government was not received quickly, and moreover since the representation dated 9-3-98 was addressed to the
State Government itself, it was felt that the State Government authorities may have replied to the detenue on the basis of information available with
them. As the processing of the representation was getting delayed, the Under-Secretary (COFEPOSA) examined the case on the basis of the
comments furnished by the Sponsoring Authority and submitted the file to the Joint Secretary (COFEPOSA) on 23-4-98, who in turn submitted
the file to Secretary (Revenue) on 23-4-98 itself.
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.
There is no other explanation whatsoever and the explanation which is given by the Central Government appears to be absolutely round about
and vague. Since these two periods, i.e. one between 2-4-98 and 6-4-98 and one between 7-4-98 and 23-4-98 are not explained at all, the
petitioner has to succeed on this point of delay alone, it is trite law that in case of the detentions under the COFEPOSA, the representations made
to both the Central as well as the State Government have to be independently considered and any unexplained delay in their consideration fatalises
the detention. That is precisely what has happened in this case. The petition is, therefore, allowed. The detention is quashed. The petitioner shall be
set at liberty forthwith unless otherwise required by law. No costs.