MANOJ GARG Vs. UNION OF INDIA

JUDGEMENT

(1.) Pursuant to a detention order dated June 02, 2010 based on the grounds of detention of the even date the petitioner has been detained on August 31, 2014. The prayer in the writ petition is for issuance of a writ of habeas corpus by quashing and setting aside the detention order dated June 02, 2010 bearing No. 673/07/2010/CUS-VIII passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short the COFEPOSA Act).

(2.) A brief exposition of facts leading to passing of detention order is that an information was received by the Delhi Zonal Office of the Directorate of Enforcement of involvement of a syndicate headed by Naresh Kumar Jain in illegal foreign exchange transaction in lieu of payment and receipt of Indian currency unauthorizedly through a wide hawala network. Naresh Kumar Jain a resident outside India stayed in Dubai from 1995 till May 2009 where after he came to India without any valid document. In Dubai he was carrying on the arrangement and transfer of foreign exchange to various exporters/ persons in India and vice-versa from Dubai and other countries. The financial transactions, hawala receipt, payment in India was controlled through a number of companies and his relatives based in Dubai and other countries. In these transactions the export invoices were manipulated under a plan and design for constant mixing of licit and illicit financial transactions in India to give a genuine basis to the unauthorized transfer of foreign exchange through banking channels. Naresh Kumar Jain continued to engage in this business even on return to India along with Manoj Garg, Puran Chand Sharma, Vimal Jain and Satpal Jain who were the other members of syndicate actively associated with Naresh Kumar Jain, who assisted him in carrying out his illegal activities in/ from India.

(3.) Searches were carried out under Section 37 of the FEMA 1999 read with Section 132 of the Income Tax Act 1961 at various places and as a result thereof Indian currency/ foreign currency, certain documents and articles were recovered and seized as per panchnamas dated 03.09.09 (4 panchnamas), 24.09.09 (8 panchnamas) and 17.11.09 (1 panchnama). These searches, documents and currencies recovered resulted in the preparation of grounds of detention and the order on detention. Pursuant to the passing of the detention order the father of the petitioner approached this Court by way of W.P.(CRL) No.1435/2010, inter alia, challenging the vires of the COFEPOSA Act in cases of activities relating conservation or augmentation of foreign exchange in view of change in regime from FERA to FEMA. No interim stay having been granted in the writ petition the petitioner approached the Hon'ble Supreme Court by SLP (CRL) No.8750/2010 wherein vide order dated November 12, 2010 execution of the detention order was stayed. Finally SLP (CRL) No.8750/2010 was dismissed on October 01, 2013 and on August 29, 2014 the petitioner sent a communication to the detaining authority as well as the sponsoring authority communicating them as under: