Devinder Kumar @ Dev Kumar vs Union of India

P.K. Jain, J.

This petition has been filed by the detenu Devinder Kumar alias Dev Kumar son of Shri Laxmi Saran, under Articles 226/227 of the Constitution of India for quashing the detention order No. 673/31/95CUS.VIII dated 5.4.1995 (Annexure P1), passed by respondent No. 2 in exercise of the powers conferred by subsection (1) of Section 3 of the Covervation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ''the COFEPOSA'') and with a prayer that he be released forthwith.

The allegations on the basis of which the impugned detention order has been passed can be gathered from the grounds of detention (Annexure P.2).

On the basis of some reliable information that the petitioner was indulging in illegal sale and purchase of foreign exchange on a large scale, the business premises of M/s. Laxmi General Store, First Floor, Meena Bazar, Ludhiana, in occupation of the petitioner were searched by the Officer of the Enforcement Directorate, Jalandhar, under section 37 of the Foreign Exchange Regulation Act, 1973 (hereinafter called ''the FERA''), as a result of which besides incriminating documents Indian and Foreign currency was recovered and seized vide Panchnama dated 6.12.1994. The petitioner was summoned and was examined, and his statement under section 40 of the FERA was recorded on 6.12.1994 and 7.12.1994, wherein he admitted to be indulging in illegal sale and purchase of foreign currency and that 29 loose sheets (documents) seized from his business premises, contained transactions regarding the said illegal sale and purchase of Foreign exchange made by him during the previous 15 days to the tune of Rupees Three crores approximately. After examining the said documents, the department came to the conclusion that the petitioner had sold foreign exchange to the tune of Rupees Ninety Crores during a period of 2 years immediately preceding to the said period.

The petitioner was arrested under section 35 of the FERA on 7.12.1994 and was produced before the Chief Judicial Magistrate, Jalandhar, on 8.12.1994, who remanded him to the judicial custody. Certain bail applications moved by the petitioner were rejected, but ultimately on 6.12.1995, the petitioner was released on bail by the Judicial Magistrate, Jalandhar.

In his statement recorded on 6.12.1994 and 7.12.1994, the petitioner revealed the names of five persons from whom he used to purchase foreign currency regularly. On the basis of this disclosure statement, the department proceeded under section 37 of the FERA against the aforesaid five persons, conducted search of their premises. Some of them were summoned and appeared before the Enforcement Directorate, and on their disclosure more transactions in illegal sale and purchase of foreign currency connected with the petitioner were revealed. Foreign currency and incriminating articles were also recovered from those persons. Follow up action continued. Ultimately, the department sent a proposal along with the necessary material, on the basis of which the detaining authority, after due satisfaction, passed the impugned detention order on 5.4.1995 against the petitioner. The petitioner was not available and escaped his arrest. A proposal under section 7(i)(b) of the COFEPOSA was also initiated against the petitioner on 15.5.1995 and the detention order could be executed only on 12.9.1995 when the petitioner was arrested and lodged in Central Jail, Jalandhar. Grounds of detention were served upon him. The petitioner made a representation dated 30.10.1995 through respondent No. 3, which was ultimately rejected on 28.11.1995 and the same was conveyed to the petitioner.

The petitioner has challenged the legality and validity of the impugned detention order mainly on the following 3 grounds :

i) That the prejudicial event is dated 6.12.1994 and the detention order was passed on 5.4.1995 and the same was executed on 10.9.1995 i.e. after about 10 months, which goes to show that there was no live and proximate link between the prejudicial activity complained of and the order of detention;

ii) That the detention order was passed on 5.4.1995 i.e. after a period of more than 5 months, which shows that there was no genuine subjective satisfaction on the apart of the Detaining Authority for detention of the petitioner; and

iii) That the petitioner had made a representation on 26.12.1995 to the jail authorities for onward submission to the appropriate authorities but the same had not been decided promptly and the unreasonable delay in the decision thereof has vitiated the detention of the petitioner.

Although certain other pleas on facts have also been mentioned on the event but the same have not been pressed during the arguments at the Bar.

In their return, respondents Nos. 1 and 2 have stated that on reliable information, the business premises of the petitioner were searched and foreign currency including incriminating documents were seized and it was found that the petitioner had been indulging in illegal sale and purchase of foreign currency in a large scale and during the last 2 years immediately preceding thereto, he had indulged in such activities to the tune of Rupees Ninety Crores. It has been further stated that there was no delay in passing the detention order inasmuch as after recording the statement of the petitioner, the department was investigating the various angles and interrogating several persons as revealed from the statement of the petitioner, and that it was after making a full and thorough enquiry, a proposal along with necessary documents were submitted, on the basis of which the competent authority passed the detention order. It has been further stated that it was the petitioner who was evading arrest and ultimately action under section 7(i)(b) of the COFEPOSA had to be taken and thereafter the petitioner could only be arrested on 12.9.1995. It is further stated that a representation dated 30.10.1995, addressed to the Chairman, COFEPOSA Advisory Board was received along with its comments through the sponsoring authority, i.e. Directorate of Enforcement on 13.11.1995, which was examined promptly and was rejected on 28.11.1995 without any delay. It has been further stated that the file was received in the COFEPOSA Advisory Unit through proper channel on 1.12.1995 and intimation regarding rejection of the representation was issued on the same day. It has also been stated that before passing of the impugned detention order the petitioner had made the representation dated 6.2.1995 which was examined and rejected and intimation thereof was issued on 24.3.1995. All other allegations made by the petitioner in his petition have also been denied. Thus, it is stated that the detention order has been passed in accordance with law and is not liable to be set aside.

I have heard the learned counsel for the parties and have also perused the various precedents cited at the Bar.

Needless to emphasise that an order of detention is not a curative or reformative or punitive action but a preventive action, the avowed object of which being to prevent the antisocial and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. In Ashok Kumar v. Delhi Administration, A.I.R 1982 S.C. 1143, the Apex Court explained the purpose and avowed object of preventive detention in the following words :

"Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing."

It was further observed by their Lordships that :

"In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to tum a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings."

Keeping in view the purpose and avowed object of preventive detention, as stated above, let me examine the grounds put forward by the petitioner challenging the legality and validity of his detention.

It cannot be disputed that inordinate delay in passing the order of detention after the prejudicial activity relied upon may be fatal to the plea of subjective satisfaction. Similarly, in appropriate cases it may be assumed that the live and proximate link may be snapped if there is long and inordinate delay between the date of order of detention and the arrest of the detenu. However, delay ipso facto in passing an order of detention or in execution of such an order is not fatal to the detention order for, in certain cases, delay may be unavoidable and reasonable.

After a review of the entire case law on the point in hand, the Apex Court in T.A. Abdul Rahman v. State of Kerala and others, 1989(2) R.C.R. (Crl.) 459 : A.I.R. 1990 Supreme Court 225 , summarised the law as under:

"The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the livelink between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.

Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner."

It cannot be disputed that in the enforcement of a law relating to preventive detention like the present Act, there is apt to be some delay between the prejudicial activities complained of under section 3(1) of the COFEPOSA and the making of an order of detention. When a person is detected in the act of smuggling of foreign exchange racketeering the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, conducting searches at their residential and business premises, examination of their books of accounts and other related documents. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. For making an effective proposal for preventive detention of a person, the Directorate has to collect material which would satisfy and justify the action of the competent authority for taking of the drastic measure of passing a detention order against a person. Therefore, from the mere delay in making order, even in absence of explanation for the same, the inference could not be drawn that subjective satisfaction arrived at by the detaining authority was not genuine or that grounds are "stale" or illusory.

In the case in hand, the business premises of the petitioner were searched on 6.12.1994, as a result of which foreign currency illegally kept along with 29 incriminating documents were recovered from drawer of a table therein. The statement of the petitioner was recorded on 6.12.1994 and 7.12.1994 which revealed the involvement of several persons in such activities connected with the petitioner. It was quite natural for the enforcement staff to proceed further with the investigation and to interrogate those persons. The grounds of detention show that those persons were duly interrogated who were available, their residential/business premises were searched, foreign currency as well as incriminating documents were recovered. Names of further connections came out from the disclosures made by those persons and such persons were also interrogated. The documents seized from the petitioner prima facie disclosed dealings by the petitioner in illegal sale and purchase of foreign currency to the tune of rupees ninety crores during the past two years. In view of the magnitude of the operations, it was quite natural for the department to collect materials before making a proposal for the preventive detention of the petitioner. The grounds of detention reveal that the investigation continued till 31.1.1995. Thereafter the petitioner made a representation dated 6.2.1995, which after enquiry was rejected and reply dated 24.3.1995 was sent to the petitioner. The proposal initiated on 7.2.1995 was then processed and forwarded to the detaining authority. It was only after due satisfaction on the basis of the materials made available to him, including the representation dated 6.2.1995 made by the petitioner and the rejection order thereof, the detaining authority passed the impugned order on 5.4.1995. Therefore, it cannot be said that there was any delay, muchless any inordinate delay, on the part of the detaining authority in passing the impugned detention order. Consequently, the first ground of attack has no force in it.

Coming to the second ground, it is correct that the detention order was passed on 5.4.1995 and the petitioner could be arrested on 10.9.1995, i.e. after about 5 months. In its return, the respondents have stated that after passing of the detention order, attempts were made to execute the same on 20.4.1995, 1.5.1995, 15.6.1995 and 17.8.1995 vide enquiry reports vide Annexures R.1 to R.4 but the order could not be executed due to non availability of the petitioner. In these circumstances, a proposal under section 7(i)(b) of the COFEPOSA was also initiated on 15.5.1995. It has been argued by the learned counsel that the department has not explained the delay in between 20.4.1995 to 1.4.1995, 1.5.1995 to 15.6.1995 and 15.6.1995 to 17.8.1995 and as such this delay in the execution of the order is fatal to the detention order. In my view, the argument is misconceived. It is evident from the record that the petitioner absconded and did not make himself available for the service of the detention order in spite of the efforts made by the department. Even action under section 7(i)(b) of the Act was also initiated. It was only on 12.9.1995 that the petitioner could be arrested in pursuance of the impugned detention order. The said delay in execution of the detention order cannot be attributed to any negligence, callous inaction, avoidable redtapism on the part of the respondents. The delay in execution of the order has been caused due to the detenu''s deliberate attempt to make himself scarce. Still further, mere such delay in execution of the detention order would not affect its legality or validity, nor it would snap live and proximate link between the date of the order of detention and the execution thereof. Thus, this ground is without any merit.

Coming to the last and final ground of challenge i.e. delay in the disposal of his representation, it is enough to say that the same is devoid of any force. Admittedly, the representation dated 30.10.1995 addressed to the Chairman, COFEPOSA, was sent through the Superintendent, Central Jail, Bhatinda. It was received along with its comments through the sponsoring authority i.e. the Directorate of Enforcement on 13.11.1995 in the COFEPOSA Branch of the Central Government. The Under Secretary processed the same on 15.11.1995 and submitted for the consideration of the Joint Secretary (COFEPOSA). The Joint Secretary considered the representation and forwarded the file to the Additional Secretary (Administration) on 20.11.1995. The Additional Secretary cleared the file on 23.11.1995 and submitted the same to the Minister of State, Revenue and Expenditure, who in turn forwarded the same to the Finance Minister on 27.11.1995. The Finance Minister finally considered and rejected the representation on 28.11.1995 and the file was received back through proper channel in the COFEPOSA Unit on 1.12.1995. Accordingly, the intimation regarding the rejection of the representation was sent to the petitioner. Thus, it becomes clear that there was no delay at all on the part of the respondents in forwarding, processing and considering the representation made by the petitioner. Consequently, this ground as a challenge to the impugned detention order is not available to the petitioner.

No other ground has been raised or argued by the learned counsel for the petitioner at the Bar.

As a result of the above discussion, I do not find any merit in the present petition and the same is hereby dismissed.