Hira Lal vs Union of India

Harmohinder Kaur Sandhu, J.

Hira Lal petitioner has filed the present petition under Articles 226/227 of the Constitution of India for quashing of detention order Annexure P1 dated September 4, 1992 passed against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1972 (as amended hereinafter called the Act) by Joint Secretary to Government of India, with a view to prevent him from indulging in activities prejudicial to the augmentation of country''s foreign exchange resources in future. He also prays for a direction to the respondent not to arrest or detain him in pursuance of the order Annexure P1.

The brief resume of the facts as given in the grounds of detention is that on 171992 at about 11 p.m. the officers of Enforcement Directorate, Jalandhar intercepted a white Maruti Car bearing registration No. DL 2CC 5991 at workshop chowk Jalandhar. The petitioner was the occupant of the car and he tried to run away. He was overpowered and searched under Section 34 of the Foreign Exchange Regulation Act, 1970 which resulted in the recovery of Foreign Exchange i.e. U.S. $ 11,685 Canadian $ 8,131/, D.M. 12,040/, 5,450/, B. Francs 100/ Dhirhams 440/ Liras, 15,00,000/. All this foreign currency and the car in question were seized vide seizure memo. On 271992, statement of the petitioner was recorded wherein he admitted that he purchased the seized Foreign Exchange at the instance of one Bhaiya Fattu residing in Paharganj, Delhi who dealt in old and torn Currency notes and had provided him Rs. 10 lacs for purchasing Foreign Exchange. He invested Rs. 2 lacs of his own in this business of sale and purchase of Foreign Exchange. He purchased the foreign exchange from persons who came from abroad and sold the same to Fattu on some profit. Subsequently search of the residential premises of the petitioner was conducted by the officers of Enforcement which resulted in seizure of five loose sheets containing telephone numbers of different person.

In the petition it was alleged that the petitioner was granted bail on 1471992 by the Chief Judicial Magistrate and the impugned order was passed on 1491992. The petitioner remained on bail for two months and there was no allegation against him that while on bail he indulged in any prejudicial activity. The order was passed to keep the petitioner behind the bars and to the overcome the order of grant of bail. It was thus punitive in nature rather than preventive. The order though was passed on 491992 it had not been executed till the filing of the present petition. There was delay of 2 1/2 months in executing the order. The petitioner sent telegrams against the officers of the Enforcement Staff levelling allegations of malafide and the present order was passed by way of vengeance and to teach the petitioner a lesson for sending telegrams and letters against Enforcement Staff.

The petition was resisted by the respondent on the ground that pendency of any criminal case against the petitioner did not effect his detention. The mere fact that the petitioner was arrested under a particular law and later on he was enlarged on bail and steps had been taken to prosecute him was no bar against the detention of the petitioner. It was further maintained that the petitioner remained absconding and he did not surrender before the appropriate authorities after coming to know that a detention order had been passed against him. He avoided his detention intentionally. This fact was admitted that the petitioner sent telegrams and letters to the Director of Enforcement New Delhi levelling certain allegations but those allegations were looked into and were found to be baseless and motivated. Detention order in question was not passed being influenced by the act of the petitioner and in fact seizure of huge foreign exchange from the petitioner showed that he was indulging in unauthorised purchase and sale of foreign currency and was thus hampering augmentation of foreign exchange reserves of the country in a regular manner.

I have heard the learned counsel for the parties and have perused the record.

The petitioner challenged the passing of the order of detention on number of grounds but the learned counsel for the petitioner at the time of the arguments raised only one contention that there had been undue delay on the part of the detaining authority in the execution of the order of detention which showed that in fact there was no necessity to detain the petitioner and the order of detention was passed without any genuine reasons for the same. The learned counsel submitted that although the order of detention was passed on 491992 it was not executed till 23111992 i.e. for 2 1/2 months and then the petitioner filed the present petition. There was no satisfactory explanation by the respondent for not executing the order. The only averment made in the reply was that the petitioner was absconding and the order could not be served upon him but this plea taken by the respondent is belied by the documents Annexures P3 and P4 which are orders passed by Judicial Magistrate Ist Class, Jalandhar who was to try the case against the petitioner under Sections 8(1) and 8(2) of the Foreign Exchange Regulation Act, 1973. Annexure P3 shows that the petitioner appeared in court on 2891992 and as per Annexure P4, his presence was marked in the court on 29101992. The petitioner is a resident of jalandhar and he had been attending the court regularly. There is nothing to suggest that his address was not proper or that he was not available when any police officer went to his house to serve the order of detention upon him. Even if the petitioner absconded or concealed himself then the respondent could have recourse to the provisions under section 7 of the Act. Section 7 read as under :

"7. Powers in relation of absconding persons :

(1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or concealing himself so that the order cannot be executed that Government may

(a) make a report in writing of fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure 1973 (12 of 1974) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate.

(b) by order notified in the official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order;and if the said person fails to comply with such direction, he shall unless he proves that it was not possible for him to comply therewith and that he had within the period specified in the order informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabout, be punishable with imprisonment for a term which may extend to one year or with fine of with both.

(2) Notwithstanding anything contained in the Code in Criminal Procedure, 1973 (2 of 1974) every offence under clause (b) of Subsection (1) shall be cognizable."

At no stage the respondent initiated action under the above provisions in order to enforce the presence of the petitioner and this fact adversely reflected about the genuineness of subjective satisfaction of the authority passing the detention order. The Apex Court in S.K. Serajul v. State of West Bengal, AIR 1975 SC 1517 observed that undue delay in actual arrest of the petitioner effects upon the genuineness of the satisfaction of the detaining authority and vitiates the order. In the case of Rajiv Talwar v. Union of India and another, 1991(1) Recent Criminal Reports 118 the order of detention was passed on 1951989 but it was not served upon the petitioner till he filed the petition and there was no indication available on the file that the authorities had resorted to any coercive measure for ensuring the detention of the petitioner as envisaged under section 7 of the COFEPOSA Act. It was observed that the detaining authority was not serious about the future propensity of detenu to indulge in smuggling activities. Similarly in the case of Yogesh Chopra v. Administrator of Delhi and others, 1988(2) Recent Criminal Reports 156 there was delay of one month and 24 days in executing the detention order and the detenu was all the time available at his residence and place of business. He also appeared in court on number of occasions. It was held that mere contention of the Authority that the detenu had absconded was not tenable and the order of detention was quashed on account of delay in execution. In the instant case the petitioner resided at Jalandhar and he attended the court of Judicial Magistrate at Jalandhar twice after the passing of this order. So the plea raised by the respondent that the petitioner was absconding cannot be accepted. Since there was delay in executing the order, the same is liable to be quashed on this ground alone.

For the foregoing reasons the petition is accepted and the detention order Annexure P1 is quashed.