Gurmeet Singh @ Ruby vs Union of India

G.S. Chahal, J.

Gurmeet Singh @ Ruby (hereinafter referred to as the petitioner) has came to this Court in this petition under Section 482 Cr.P.C. read with Article 226 of the Constitution of India for quashing of detention order F. No. 673/33/92CUS. VIII dated 7292 and grounds of detention dated 7292.

The grounds on which the detention of the petitioner has been ordered are given in Annexure P2 and may be briefly stated :

Information was received by the Delhi Zonal Office of Enforcement Directorate that two Afghan nationals named Shah Badal @ Engineer and Toryali @ Jabbar have been indulging in the illegal purchase and sale of foreign exchange and gold on a large scale from premises at 5320, Gali Yakub Wali. Kucha Rehman, Chandni Chowk, Delhi where telephone No. 2519,833 is also installed. Further information disclosed that Toryali @ Jabbar is having a hide out at premises No. 4903, Kucha Ustaad Daag, Chandni Chowk, Delhi and that lately another Afghan national who had come from Afganistan had also been associated and that some persons from Punjab had come to sell substantial amount of foreign exchange to Toryali and Shah Badal at their residence at Kucha Rehman. On the basis of these informations, searches and raids were carried out and from the residential premises of Toryali @ Jabbar at 5320, Gali Yakub Wali, following material was seized

"Forcing Exchange

UK (Pound) & 6580/ US $6941/,

DA28650/ Can. $ 165/W and documents."

However, nothing was recovered from the premises located in Kucha Ustaad Daag. At the Gali Yakub Wali premises, persons named Darvesh son of Mukhtar, and Afghan national Vipin Kumar son of Jagan Nath of Jalandhar, Vipin Rajput son of Satpal Rajput of Batala and Ashok Kumar son of Kundan Lal of Ludhiana were also found present and some documents were seized from the possession of Vipin Kumar and Ashok Kumar. As a followup action, searches under Section 37 of Foreign Exchange Regulation Act, 1973 were carried out at different premises including the business premises of M/s. Kartar Watch Company at Rainak Bazar, Jalandhar (being the premises of the petitioner) and some documents were recovered. Jabbar, Shah Badal, Darvesh. Vipin Kumar, Vipin Rajput, Ashok Kumar and Mohd Nasir were summoned and their statements were recorded. It was in the statement of Vipin Kumar that he disclosed that the petitioner had given a packet containing foreign currency in exchange for which he was to receive Rs. 87,000/ in Indian currency. He further disclosed that he had been bringing foreign exchange once or twice a week and till the date of his detention he had brought foreign exchange worth Rs. 13.5 lacs to Jabbar and Shah Badal. He, however, could not disclose as to the source from which the petitioner purchased that foreign exchange. The petitioner was summoned by the authorities but he refused to make any statement stating that the statement might implicate him. The petitioner was arrested under Section 35 of the Foreign Exchange Regulation Act and produced before the CJM Jalandhar, who remanded him to judicial custody till October 22, 1991. He moved an application on October 7, 1991 which was dismissed by that Court, but he was granted bail on October 13, 1991 by the Sessions Judge, Jalandhar. That on the basis of evidence collected, a conclusion was drawn that the petitioner had been indulging in unauthorised transactions in foreign exchange in violation of the provisions of Foreign Exchange Regulation Act, 1973.

The petitioner has challenged this order of detention on the ground that he had been arrested on October 7, 1991 and was ultimately released on bail on October 18, 1991. That from the date of his release on bail, till the date of detention order, he had not indulged in any prejudicial activity. The detention order was passed on February? 1992, and the order was thus neitherbona fidenor of preventive nature as contemplated by the COFEPOSA Act and there was inordinate delay of about 41/2 months in ordering the detention. On account of this delay, the order is liable to be struck down. That no effort was made by the authorities to get his bail orders cancelled and the detention order is in the form of punitive act and is not a preventive act and there was no genuine subjective satisfaction of the detaining authority.

The respondent filed a short reply and the relevant portion may be quoted :

"Regarding allegation made in the petition it is submitted that since petition is predetention petition and as per the rule pronounced by the Supreme Court judgment delivered on 201090 in Criminal Appeals No. 440441 of 1989 filed by Additional Secretary to Govt. of India vs Smt. Alka Subhash Gadia and anr. Petition does not come under the jurisdiction of the High Court."

Though subsequently permission was sought to file a detailed reply was, however, filed and Mr. Sharma who appears for the respondent has confined himself to the arguments that this Court could not entertain the petition at the preexecution stage.

The respondent has not given any facts on the basis of which the detention order has been passed nor it has given any details of the process carried out by the detaining authority while passing that order. The petitioner has pleaded that no effort was made to get his bail order cancelled and the detention order is being utilised for punitive purpose. These facts have, however, not been contradicted and the petitioner has felt satisfied by taking the objection to the jurisdiction of this Court in examining the matter at preexecution stage.

The question of law as to whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu''s submitting or surrendering to it and if so in what type of cases was considered in Additional Secretary to the Govt. of India and ors. v. Alka Subhash, 1999(1) Recent Criminal Reports 677 : JT 1991(1) 549 (SC) and their Lordships made the following observations

"It Is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied i) that the impugned order is not passed under the Act under which it is purported, to have been passed, ii) that it is sought to be executed against a wrong person, iii) that it is passed on vague, extraneous and irrelevant grounds or iv) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu but prevents their abuse and the perversion of the law in question."

The petitioner has specifically alleged that the purpose of passing the detention order is just to keep him in custody after he has been allowed bail by the Court, and is in the form of punitive action. The respondent has not controverted these pleas. In these circumstances, there is force in the contention, or the learned counsel that the order has been, passed for extraneous reasons and for wrongful purpose namely the detention of the petitioner inspite of his bail. Obviously the provisions of COFEPOSA authorising the preventive detention cannot be utilised for punitive purpose.

I thus hold that the detention order has been passed for extraneous reasons and wrongful purpose and I hereby allow the petition and quash the detention order passed against the petitioner on the basis of the prejudicial activity regarding which he was arrested on Oct, 7, 1991. The petition stands disposed of.