ADIL Vs. UNION OF INDIA

JUDGEMENT

(1.) Through this petition under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure, the petitioner seeks the quashing of his detention order dated 13.2.2002 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( in short the "Act") and his release from the custody.

(2.) Shorn of unnecessary details, the germane facts and circumstances which led to the passing of the impugned detention order dated 13.2.2002 are that, acting on an information, a joint research operation was conducted by the Officers of the Enforcement Directorate and the Officers of Local Police on 24.2.2001 at the Corner Gali Kaptan Wali, Kucha Chelan, Daryaganj, Delhi, under warrant of authorisation of the even date issued under Section 37 (3) of FEMA 1999 read with Section 132 of the Income Tax Act. Two persons namely Shri Imran and Shri Abid who were riding two wheeler scooter No. DL-2S-H 9071 were stopped and Abid who was on the pillion seat of the scooter was found to carry a raxine bag. Search of the bag and aforesaid persons, inter alia, resulted in the recovery of following foreign and Indian currency:- " Foreign Currency - US $ 40,791/- DM 3210/- Saudi Riyal 1,71,691/-, Japanese Yen 3,21,000/-. Bahrain Dinar 44/-, Omani Riyal 197/-, Qatar Riyal 565/-, UAE Dirhams 21,450/- Kuwaiti Dinar 511.75/-, Singapore $ 55/- Canadian $ 10/-, Hongkong $ 500/- and Dutch Gilder 500/-. Indian Currency - (i) Rs. 3,03,800/- (ii) Rs. 24,850/- (Soiled/torn/appearing to be fake.)

(3.) Besides Imran and Abid, two more persons namely Shri Rabi Ahmed and Shri Alluddin were also apprehended at the spot but nothing incriminating was recovered or seized from them. In their statements under Section 37 of FEMA, 1999 read with Section 132 (4) of the Income Tax Act, 1961, Shri Imran Ahmed disclosed that he was a scooter mechanic but for few days past he was working with his brother-in-law (the petitioner) who was doing the business of sale-purchase of foreign exchange in the black market and that the petitioner was residing at 2883, 3rd Floor, Gali Kaptan Wali, Kucha Chelan and a telephone (number 3257181) was installed at the said house; that the petitioner's shop was a part of 'CHICKEN PLAZA' at Gali GADHAIYA, Matia Mahal having a telephone. He further disclosed that the petitioner was engaged in the sale-purchase of foreign exchange besides selling 'Chicken Briyani' for past about eight years. Almost to the same effects were the statements of Abid, Rabi Ahmed and Allauddin. Summons were issued to the petitioner to appear before the Enforcement Directorate on repeated occasions between 7th March, 2001 to August 2001 but the petitioner was found absconding. In the meantime further investigation in the matter was taken up but statement of the petitioner could not be recorded and after about a year of the said incident, the Competent Authority passed the impugned detention order on 13.2.2002 recording his satisfaction that the petitioner had been engaging in activities which had adversely affected the foreign exchange resources of the country and considering the nature and gravity of the offence, the role of the petitioner therein and the potentiality and propensity to engage himself in such prejudicial activities in future also, it was necessary to detain the petitioner. The detention order was served on the petitioner only on 10.4.2003 and he has been detained in Tihar prison since then. Representation made by the petitioner through his wife was rejected.