RAJ KUMAR MAHAJAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner. Raj Kumar Mahajan has challenged the order of detention passed on 7th November. 1990 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as the 'COFEPOSA ACT') served on him on 5th September. 1991. The order of detention was issued by Mr. Mahindra Prasad, Joint Secretary to the Government of India. It is stated therein that with a view to preventing the petitioner from acting in any manner prejudicial to the augmentation of foreign exchange, it was also ordered that the petitioner be detained and kept in custody in the Central Jail, Tihar, New Delhi, The grounds of detention were served on the petitioner but on September 9. 1991,

(2.) In nutshell, the case is that on 17th August, 1990, the information was received by the Delhi Zonal Office of the Enforcement Directorate that the petitioner Raj Kumar, resident of A-2/219, Paschim Vihar and having business premises at shop No.21, Nehru Bazar, is indulging in unauthorised purchase and sale of foreign exchange, gold and imported goods on a large scale. He also has hide outs at D-42 and D-44, West Patel Nagar, New Delhi. On search being conducted, at his residence documents were recovered. Similarly documents and the Indian currency worth Rs.13,000.00 were recovered from his business premises. From premises at D-42 and D-44, West Patel Nagar. foreign currency i.e. US $152, Sing, $-12, Indian Rs.10,000.00 and documents were recovered. From his business premises at 21, Nehru Bazar, Pahar Ganj, personal search of the petitioner was conducted and a sum of Rs.550.00 and documents were recovered. As a follow up. his room No.21 of Hotel "Vishal". Main Bazar Pahar Ganj. New Delhi was also searched and US $ 850 and documents were recovered. It is further the case of the respondent that the petitioner made voluntary statement admitting the search and also the seizure of Indian currency and documents from his possession and also that he was making payments to the foreigners in foreign exchange for purchase of imported goods and gold. He further disclosed a.s to from where he was purchasing foreign exchange and that in the last four years he had purchased and sold foreign exchange worth Rs.12 crores. It is on account of the recoveries effected from his residence and business premises coupled with the voluntary statement made by the petitioner that the detaining authority came to the conclusion that he was indulging in unauthorised purchase and sale of foreign exchange which was in violation of the Provision of F.E.R.A. 1973. He was also appraised of his right to make representation before the Central Government. detaining authority and Advisory Board, if he so wishes against his detention.

(3.) The challenge to the detention order has been made in the instant writ petition primarily on two grounds namely:- 1) That there had been delay of five months in the execution of the detention order. The detention order in this case was passed on 7th November. 1990 under Section 3(1) of the COFEPOSA Act, The same has been served on the petitioner on 5th September 1991 and the grounds of detention were served upon him on 9th September, 1991. Hence the order of detention is liable to be quashed. 2) The representation of the petitioner was not disposed of for nearly one month. The representation was made on 24th September, 1991 asking for the supply of documents but the same was rejected on 24th October, 1991 almost after one month. There is no explanation for this delay. On account of this delay the detention is vitiated.