ZAIMAY Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking quashment of the detention order dated August 1,1989. passed by respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (for short COFEPOSA Act') with a view to preventing the petitioner from acting in any lanner prudicial to the augmentation of foreign exchange.

(2.) Before I deal with the various contentions raised by the learned counsel for the petitioner, it is necessary to refer to the facts of the case as re evident from the grounds of detention served on the petitioner.

(3.) A secret information being received that the detenu who usually sits Room No. 15 of Dil Aram Guest House, Ballimaran, Delhi, has been indulging in unauthorised sale and purchase of foreign exchange and gold on large-scale, on July 18, 1989, the petitiones was apprehended on the Main Road in front of Police Booth, Opposite Nai Sarak near Town Hall Building, Chandni Chowk, His personal search led to the recovery of 22,550 US dollars in case concealed in his right leg beneath the knee cap alongwith Rs. 780.00 in. Indian currency and one loose sheet from the front pocket of the petitioner's kurta. His statement under Section 40 of the Foreign Exchange egllation Act, 1973, was recorded wherein he stated that he was an Afghan national and had come to India about ten months back on a refugee status and at he had destroyed his passport and was not in a position to produce his refugee card and had no moans of earning his livelihood and thus, he started irchasing articles like camera, clothes, shoes etc. from the persons coming India from abroad and selling the same on profits to other persons at the aforesaid room in Dil Aram Guest House and that other Afghan nationals ere also indulging in same type of business in other rooms of the said Guest House and tho petitioner came to know about purchase and sale of foreign currency. i.e. dollars, pounds etc., and had seen other Afghan nationals aking profits by dealing in purchase and sale of foreign currency and the petitioner also started purchasing foreign currencies and selling the same to some person in Jama Masjid and he indulged in this purchase and sale of foreign currencies on a large-scale and after huge foreign currencies used to accumulate with him purchased from various persons coming from Jaipur and Agra, the petitioner used to sell the same to same persons residing at Lajpat Nagar he and admitted the said recovery effected from him and stated that he was purchased the said dollars @ Rs. 19.95 per dollar from persons who had come from Jaipur and that he was keeping the account of the said transaction in the said loose sheet recovered from his kurta's pocket and the petitioner also admitted that in this way, he had earlier indulged in illegal purchase and sale of foreign currency to the tune of about Rs. 30,00,000.00 (thirty lakhs) and he had no licence or permission from the Reserve Bank of India for dealing in foreign exchange, it is also mentioned that the statement was recorded by Shri S.A.Ali, Chief Enforcement Officer and he had read over the statement to the petitioner who admitted the same as correct. It was also recorded in the grounds of detention that the petitioner was remanded to judicial custody and the petitioner had moved an application for being released on bail in the court on July 19, 1989 Then the contents of the bail application save been reproduced showing the version of the petitioner as to how he had come into possession of the said dollars innocently. The detaining authority after keeping in view the said retraction of the petitioner and the other facts reached the subjective satisfaction that the petitioner has been indulging in unauthorised purchase and sale of foreign exchange and the same had affected the foreign exchange resources of the country adversely and although the petitioner was in judicial custody yet there was every possibility of his being released on bail as his application was fixed for arguments on August 2, 1989 and if the petitioner was to be released on bail, the petitioner again would indulge in such prejudicial activity affecting the foreign exchange resources of the country adversely and thus, the detention order was passed.