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. Mahendra 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/ - 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/ - 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/ - 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 as 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.) AS regard the first ground the counsel for the petitioner vehemently urged that the respondent miserably failed to produce on record any cogent and reliable evidence or explanation to prove the reason for the delay of five months in the execution of the detention order. As already observed above, the incident is of 17th August, 1990. The detention order was passed on 7th November, 1990. Thereafter, nearly for five months the detention order was not served on the petitioner. Mr. Malhotra, appearing for the petitioner contended that on 12th December, 1990, the petitioner had applied for the stay against the passing/implementing or executing the detention order at Calcutta High Court. The said stay was granted on 12th December, 1990. However, after the respondent put in appearance the said stay was vacated on 12th April, 1991. Therefore, Mr. Malhotra fairly conceded that the period when the stay was obtained and till the time it remained in operation, the delay stand explained. It is only after 12th April, 1991 till 4th September, 1991 which delay the respondent had to explain. This delay respondent has miserably failed to explain. He further urged that even for the sake of argument, if it is presumed that it took a week's time for the respondent/authority to receive intimation of the vacation of the stay from Calcutta but that will take the respondent only up to 19th or 20th April, 1991. But from 20th April, 1991 to 4th September, 1991 it is almost five months, and there is in fact no explanation worth the name given for the delay in executing this order of detention on the petitioner. The petitioner had in para(h & i) in the grounds of his petition had taken a specific plea that since the detention order was executed on the petitioner after a considerable long period hence the link stood snapped. Grounds (h) and (i) of the petition are as under: