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1999 DIGILAW 794 (MAD)

Farook Nagoor v. State of Tamil Nadu

1999-08-10

V.KANAGARAJ, V.S.SIRPURKAR

body1999
JUDGMENT V.S. Sirpurkar, J. The petitioner herein challenges the order passed by the first respondent dated 2.12.1998 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), (hereinafter referred to as the Act’) directing the detention of one Farook Nagoor. 2. The above-mentioned detenu was said to have been carrying undeclared currency totaling about Rs.15,98,500 while he was travelling from Chennai to Singapore by Flight No.SQ 409. On being intercepted, the said currency was recovered from him. Necessary Official steps were taken to prosecute him and he also gave confession accepting that he was carrying the said currency which was undeclared. On the basis of this, an order came to be passed. 3. It will not be necessary for us to go to into the details of grounds in view of the fact that Mr.K.A.Jabber, learned counsel appearing on behalf of the petitioner has restricted himself only to one point. According to the learned counsel, the representation sent by the detenu which is dated 7/12 January, 1999 has been disposed of only on 25.2.1999 which amounts to resulting in towering delay in its consideration. Learned counsel suggests that the delay has remained unexplained and therefore, has become vital to the detenu. We were taken by the learned counsel through the counter affidavit filed on behalf of the Central Government as it is in respect of the representation sent to the Central Government alone that the learned counsel has a complaint to make. As per that counter, it is seen that the representation dated 7/12 January, 1999 was forwarded by the Government of Tamil Nadu vide letter dated 18.1.1999 and it was received by the COFEPOSA unit of the Central Government only on 22.1.1999. This representation seems to have been sent by the Central Government for the comments of the sponsoring authority on 22.1.1999, that is, on the same day, which was received by the Central Government. It seems from the counter that the sponsoring authority furnished his comments vide letter dated 3.2.1999 which was received by the COFEPOSA unit of the Central Government only on 8.2.1999. It seems that thereafter, the case file with the comments of the sponsoring authority was taken to the Deputy Secretary, COFEPOSA unit on the same day, i.e., On 8.2.1999. It seems from the counter that the sponsoring authority furnished his comments vide letter dated 3.2.1999 which was received by the COFEPOSA unit of the Central Government only on 8.2.1999. It seems that thereafter, the case file with the comments of the sponsoring authority was taken to the Deputy Secretary, COFEPOSA unit on the same day, i.e., On 8.2.1999. The Deputy Secretary, COFEPOSA, processed the case and submitted the file to the Joint Secretary on 9.2.1999 and he, in his turn submitted the file to the Special Secretary-cum-Director General, Central Economic Intelligence Bureau on the same day and the said authority, i.e., the Special Secretary sought additional information and returned the file on 9.2.1999. Therefore, information was called for from the sponsoring authority vide fax message dated 10.2.1999 and the sponsoring authority also furnished the additional information called on 10.2.1999. 4. It seems that further facts was sent by the sponsoring authority regarding this information on 15.2.1999. Again however, this information was found to be incomplete and therefore, a second fax message was sent on 16.2.1999. The information sought was received by the Central Government on 16.2.1999 itself. The file was then submitted by the Deputy Secretary to the Joint Secretary on 17.2.1999 who after considering the same submitted it on the same day to the Special Secretary on 17.2.1999 on which date, the representation came to be considered by the Special Secretary and he rejected the same. The intimation was sent on the same day to the detenu. However, it reached the detenu thereafter. Learned counsel points out that this amounts to no explanation. 5. According to the learned counsel, firstly there is a delay on the part of the State Government in sending the representation to the Central Government. It is obvious that the representation which was dated 7.1.1999, sent on 12.1.1999, must have reached the Central Government immediately and then, it was forwarded only on 18.1.1999. We find explanation for this in the counter affidavit of the State Government in paragraph 21. It is apparent therein that the State Government received the representation only on 18.1.1999 on which day itself. It forwarded the same to the COFEPOSA unit of the Central Government where it was received on 22.1.1999. Therefore, it cannot be said that there was any delay on the part of the State Government. 6. It is apparent therein that the State Government received the representation only on 18.1.1999 on which day itself. It forwarded the same to the COFEPOSA unit of the Central Government where it was received on 22.1.1999. Therefore, it cannot be said that there was any delay on the part of the State Government. 6. Learned counsel however, contends that the delay between 22.1.1999 and 8.2.1999 has remained unexplained. For this, learned counsel relies heavily on the reported judgment in R.Paulsamy v. Union of India R.Paulsamy v. Union of India , 1999S.C.C. (Crl) 549 According to the learned counsel, the representation has been dealt with in a routine manner inasmuch as, the representation was not considered by the authorities who had power to do so and it was in the routine manner that the comments from the sponsoring authority were invited. Since the learned counsel had raised this point, we invited the Central Government Standing Counsel to produce before us the order delegating authority to deal with and consider the representation. The said order has been produced by the Central Government Standing Counsel which suggests that the power to consider the representation has been delegated by the Hon’ble Minister to Additional Secretary, Secretary or Joint Secretary, COFEPOSA, Unit of the Ministry of Finance Department (Revenue), New Delhi. The order was passed on 22.4.1998 by the Honourable Minister for Finance. We again sought information from the Central Government Standing Counsel as to who had invited the comments, once the representation reached the COFEPOSA unit of the Central Government, since the counter is silent on that issue. 7. Mr.Arunan, learned Additional Central Government Standing Counsel very fairly made a statement on the basis of the files that the said comments were invited by the Deputy Secretary on 22.1.1999. It is obvious therefore, that the Deputy Secretary who invited the comments had no authority to consider the representation considering the order darted 22.4.19998 passed by the Hon’ble Minister for Finance, Union of India. It is obvious therefore, that the representation was not considered by any of the authorities who were armed with the power to consider the representation and it was only in a routine manner that the comments were invited by the Deputy Secretary who was not entitled to deal with the file. 8. It is obvious therefore, that the representation was not considered by any of the authorities who were armed with the power to consider the representation and it was only in a routine manner that the comments were invited by the Deputy Secretary who was not entitled to deal with the file. 8. Learned Standing Counsel for the Central Government, however, tried to save the situation by arguing that inviting comments was only secretarial job as the comments would have helped the concerned authorities to decide the representation in an effective manner. We do not agree. It was imperative on the part of the authority who was entitled to deal with the representation and then come to the conclusion whether such comments were necessary or not. Such things have not occurred in the present case. Learned counsel for the petitioner invited our attention to paragraph 6 of the aforementioned 1999S.C.C. (Crl) 549. wherein the situation was no different. The Apex Court therein has held, “Examining the present case in hand, in the light of the ratio laid down above, we find that though the representation was received on 28.10.1998, comments of the sponsoring authority were called for on 29.10.1998 which were received on 10.11.1998. From the records we find that the order for calling for comments of the sponsoring authority was not passed by any of the officers empowered by the above orders of the Minister dated 7.7.1995. Therefore, we hold that the representation was dealt with in a routine manner and there was no application of mind by the competent officer as to whether it was necessary to call for comments of the sponsoring authority. In other words, this delay from 28.10.1998 to 1.0.11.1998 being uncalled for has to be regarded as unreasonable and, therefore, fatal in view of the ratio laid down by this Court in Venmathi Selvam. ” 9. There can be no dispute that the facts in the present case are identical. Here also, as we have already pointed out, that it was the Deputy Secretary who has called for the comments and admittedly, he was not entitled or armed with the power to consider the representation or deal with it. It is in the routine manner that the comments have been called for and therefore, the delay, between 21.1.1999 and 8.2.1999 can be termed as ‘unreasonable delay’ which delay has remained unexplained. It is in the routine manner that the comments have been called for and therefore, the delay, between 21.1.1999 and 8.2.1999 can be termed as ‘unreasonable delay’ which delay has remained unexplained. It may be that if the representation has been considered by the authority having power to do so, the comments may not have been felt unnecessary and in that case, the representation could have been dealt with immediately. That not having been done, the delay has been caused because of the official procedure to invite the comments. In that view, the delay has remained unexplained and the ratio laid down in Paulsamy v. Union of India Paulsamy v. Union of India , 1999 S.C.C.(Crl.) 1549 applies on all fours to the present facts. No other point was argued before us. 10. In the result, this petition will have to be allowed and the impugned order will have to be set aside and it is accordingly, set aside. The detenu is directed to be set at liberty forthwith unless his detention is required in connection with any other case. Petition allowed.