Rakesh Kumar Arora vs Union of India and ors.

Jai Singh Sekhon, J.

Rakesh Kumar Arora has filed the original writ petition under Articles 226/227 of the Constitution of India challenging the validity of the detention order Annexure P3 dated 781989 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (hereinafter referred to as the COFEPOSA Act). The parent writ petition was filed even before the detention order was served upon the petitioner or he was detained in custody. The grounds of detention served upon Subhash Chander Gulati, employer of the petitioner, were appended as Annexure P4 to the writ petition contending that the detaining authority has ordered the detention of the petitioner as well as his employer on the basis of the same incident and on the same date. During the pendency of this writ petition, the petitioner was arrested on 2991989 and the grounds of detention Annexure P4 were served upon him. Thereafter the petitioner filed criminal Misc. Petition No. 455 of 1989 for placing on record the amended writ petition along with this criminal Misc. petition, amended writ petition was also filed by the petitioner. In the amended writ petition, it is averred that the grounds of detention Annexure P4 were served upon the petitioner on the date of his arrest and that the petitioner filed representation Annexure P5 to the Central Government on 30101989.

The brief resume of facts figuring in the grounds of detention served upon the detenu and relevant for the disposal of this petition are that on 251989, the officers of Punjab Police searched the business premises of M/s Golden Silk Store, Raink Bazar, Jalandhar, and recovered the following documents, foreign currency and Indian Currency.

i) Indian currency of Rs. 57,590/ from the business premises of M/s. Golden Silk Store.

ii) US $ 2000 and Can. $ 200 in the form of International Money JUDGMENTs and Travellers Cheques and documents from the person of Shri Rakesh Kumar Arora.

iii) A slip of paper from the person of Shri Raj Paul, employee of M/s. Golden Silk Store, Jalandhar, with certain accounts written thereon;

iv) Documents from the person of Shri Avinash Chander, partner, M/s. Golden Silk Store."

On information, the Zonal Office of the Enforcement Directorate, Jalandhar, took over the seized currency, documents etc. from the Punjab Police and S/Shri Avinash Chander Gulati, Rakesh Kumar Arora, Raj Paul and one Ramesh Kumar Mittal son of Shri Kewal Krishan Mittal, resident of Hoshiarpur, who were present at the time of seizure of the above referred articles from the premises of M/s. Golden Silk Store, Jalandhar, were summoned under Section 40 of the Foreign Exchange Regulation Act, 1973. It is noteworthy that the petitioner is working as Salesman on the premises of M/s Golden Silk Store, Jalandhar, a partnership concern of which Shri Subhash Chander Gulati, codetenu and Avinash Chander Gulati are partners. During enquiry by the Enforcement Staff the petitioner admitted that he is working, with this concern for the last 11/2 years and under the instructions of his employer he is indulging in the receipt of foreign exchange from people visiting the shop and the money in lieu thereof is paid by his coservant Raj Paul who also maintained relevant accounts. A slip of paper bearing the coded account of purchase and sale of foreign exchange was also recovered from the personal search of Raj Paul, coservant of the petitioner.

Mr. H. S. Mattewal, the learned Senior Advocate appearing on behalf of the detenu petitioner, has challenged the detention of the petitioner mainly on two grounds although a number of objections were taken in the petition. Firstly, it is maintained that the detention of the petitioner and his employer Shri Subhash Chander Gulati codetenu, having been ordered on the same facts figuring on the same file, the factum of recovery of some foreign currency from the said business concern on 21111989 as well as the purchase of gold of foreign origin by Ashwani Kumar, from Subhash Chander as averred in the written reply filed by the respondent in the writ petition No. 2996 of 1989 of aforesaid Subhash Chander Gulati, having not been disclosed by the respondent in the grounds of detention served upon the petitioner had resulted in noncompliance with the mandatory provisions of Article 2 (5) of the Constitution as it debarred the petitioner from filing an effective representation. Mrs. Jaishri Anand, on the other band, maintained that the above referred incident involved the recovery of foreign currency notes and sale of gold by Subhash Chander Gulati only and as such there was no question of the petitioner in any way connected with the same as the petitioner happens to be a servant of Subhash Chander and not his master. In other words, she tried to make out that a servant is not liable for the individual acts of his master.

I have perused the original Ries pertaining to recovery of foreign currency from Subhash Chander Gulati as well as the sale of some gold of foreign origin by him to Shri Ashwani Kumar. The perusal of the files reveals that on 26111988, the Enforcement Staff, Directorate of Revenue Intelligence searched the business premises of M/s. Golden Silk Store, Rainak Bazar, Jalandhar, in the presence of its partner Shri Subhash Chander Gulati and recovered 1800 dollars besides the recovery of Indian currency worth Rs. 50,000/. The seizure memo does not reveal the presence of any of the servants of M/s. Golden Silk Store what to say of the presence of the petitioner. Thus it cannot be said that the detaining authority has passed the detention order of the petitioner under Section 3 of the COFEPOSA Act on the basis of recovery of some foreign currency on 26111989 from the above referred business premises. The perusal of the other files shows that on 1971989, the Enforcement Officer of the Directorate, Foreign Exchange, Regulations, Jalandhar, on search of the premises of Ashwani Kumar son of Mulak Raj, Lal Bazar, Jalandhar, had recovered some gold biscuits weighing 10 tolas each having foreign markings. In his statement aforesaid Ashwani Kumar stated that these gold. biscuits were purchased by him from Subhash Chander Gulati, employer of the present petitioner. Thus by no stretch of imagination it can be said that the detaining authority had passed the detention order against the petitioner on the basis of the sale of this gold of foreign origin to Ashwani Kumar as the petitioner was not at all involved therein but his employer Shri Subhash Chander Gulati only was involved. Therefore, it cannot be said that the nondisclosure of this material in the grounds, of detention served upon the detenu had resulted in violation of the mandate contained in Art. 22(5) of the Constitution of India.

There is, however, considerable force in the contention of the learned counsel for the petitioner that the representation of the detenu was not promptly disposed of by the concerned authorities. The perusal of the counter affidavit filed by Shri Kuldeep Singh, Under Secretary, to the amended petition on reveals that in para No. 12(i), the explanation for disposal of the representation is given as under :

"It is incorrect to suggest that the representation of petitioner was not considered expeditiously. Facts are that the representation dated 6111989 was received in the COFEPOSA writ on 91189 and on 101189 it was sent to the Sponsoring Authority for comments and the comments dated 161189 were received on 231189. The representation was put up by the Under Secretary to the Joint Secretary on.241189. The Joint Secretary considered the representation on 27111989 and submitted the file to the Hon''ble Minister (25th November & 26th November being holiday). The representation was considered by the Hon''ble Minister on 10121989 (the new Government and Ministry was under formation) and rejection of representation was sent to the petitioner on 12121989. In view of the said position there is no delay in consideration of the representation".

A bare perusal of the above referred explanation leaves no doubt that the representation was sent to the sponsoring authority for comments on 10111989 by the detaining authority and the comments dated 16111989 were received. on 23111989. It is not acceptable that even through ordinary post comments of the sponsoring authority dated 16111989 from Jalandhar would reach Delhi on 23111989. On the other hand at the most, the comments will take two days even if sent through ordinary post. Thus it appears that the sponsoring authority had not forwarded the comments on 16111989 as alleged in the covering letter but had despatched the same somewhere on 20111989 or 21.11.1989. The matter does not rest here as the Joint Secretary, Revenue, had considered the representation on 27111989 and submitted the file to the Hon''ble Minister on the same date but the representation was considered by the Hon''ble Minister on 10121989 and rejected. The explanation for this gap of thirteen days from 27111989 to 10.12.1989 is, explained on the ground that new, Ministry was under formation. In this regard, it is noteworthy that the previous ministry had submitted its resignation on 29111989 but they were asked by the President to continue till the new Ministry was sworn in. The present Prime Minister took, oath on 2121989 and the present ministry was expanded on 5121989. Thus under these circumstances, it appears that the representation of the detenu Was dealt in a casual manner and not promptly. If that is so, then there is no escape but to conclude that the sponsoring authority had kept on sitting over the representation for about four or five days unnecessarily which had resulted in rendering the continued detention of the petitioner bad in the eyes of law as it violated the very safeguards enshrined in Article 22(5) of the Constitution of India.

In Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, 1989 C.A.R. 210 (S.C.) : 1989(1) Recent Criminal Reports 486 SC , the apex Court had held the undue and unexplained delay of seven days on the part of the Jail Superintendent in despatching the representation to the concerned authority having resulted in rendering continued detention of the detenu illegal and quashed the same by holding that it infringes the mandate of Article 22(5) of the Constitution of India.

Again in Smt. Shalini Soni and others v. Union of India and others, 1980(4) Supreme Court Cases 544, the apex Court has emphasised the constitutional obligation on the part of the authorities concerned in dealing with the representation of a detenu as follows :

"Quite obviously, the obligation imposed on the detaining authority, by Article 22(5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Article 22(5) read with Article 19, the Courts have a duty, to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperatives must lead to the release of detenu."

The above referred view was reiterated by the Supreme Court in Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police and others, 1989 C.A.R. 213 (S.C.).

Mrs. Jaishree Anand, by relying upon the observations of the Supreme Court, in Madan Lal Anand v. Union of India and others, 1990(2) RCR(Crl.) 58 (SC) : AIR 1990 Supreme Court 176 , contended that the delay in disposing of the representation is of no consequence as in that case, the representation was sent to the Chief Commissioner of Excise, Chandigarh, for comments on 1911989 and the comments of the Collector were received by the COFEPOSA unit of the Ministry on 18.2.1989 under cover of Collector''s letter dated 9.2.1989. There appears to be no force in the convention of Mrs. Anand as in para No. 37 of the judgment, the delay in offering comments by the Collector of Central Excise and Custom was explained on the ground of there being a number of holidays intervening the receipt of representation and those comments. The matter was dealt as under in para No. 37:

"At the hearing of this appeal, the learned counsel for the respondents handed over to us a list of dates showing that a number of holidays intervened between one date and another and hence the apparent delay. It appears that the Collector of Central Excise and Customs received the representation for his comments on 2311989 and handed over the same to the dealing officer for comments on 2411989 and the Collector''s comment was made on 921989. Between 2511989 and 821989 a number of holidays intervened, namely, 2611989 (Republic Day), 2811989 and 2911989 (Saturday and Sunday), and 421989 and 521989 (Saturday and Sunday). On 921989, it has sent to the Ministry of Finance (COFEPOSA cell), New Delhi, and was received by that Ministry on 1021989. 11.2.1989 and 12.2.1989 being Saturday and Sunday were holidays. On 13.2.1989 it was put up before the Joint Secretary, COFEPOSA, and was sent to the Minister of State (Revenue). The file was received back after the rejection of the representation and such rejection was communicated to the detenu on 2021989. The two intervening dates, namely 1821989 and 1921989 being Saturday and Sunday were holidays."

On the other hand in the case in hand, the sponsoring authority had not all given any explanation as to why the comments were not despatched on 16111989.

For the foregoing reasons, there is no option but to hold that the order of detention of the petitioner is liable to be quashed being violative of the mandate of Article 22(5) of the Constitution of India. It is ordered accordingly. The petitioner be set forth at liberty, if not required in any other case.