RAMESH CHAND BHALLA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a writ petition whereby the petitioner challenges the order of his detention dated September 28,1988 passed against him by the Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA") at a pre detention stage.

(2.) A batch of writ petitions including the instant petition and a Letters Patent Appeal were referred to the Full Bench for the purpose of examining the correctness of the decision of the Division Bench in Subhash Chander Vs. 17.0.1. & Ors. 43 (1991) DLT 517. In that case the Division Bench held that the delay in execution of the detention order would be a ground upon which the same could be called in question by the person against whom it is made even before the execution thereof. The Division Bench was of the view that apart from the five categories mentioned in the decision of the Supreme Court in the case of The Additional Secretary to the Government of India and Ors Vs.Smt.Alka Subhash Gadia and Another JT 1991(1) SC 549 there could be other grounds as well on the basis of which the detention order at a pre-execution stage could be challenged. The Full Bench on October 20,1994 held that the delay in passing a detention order or delay in execution thereof falls outside the five categories mentioned in the case of Alka Subhash Gadia(Supra). Relying on the decision of the Supreme Court in Subhash MulJimal Gandhi Vs.L.Himingliana & another JT 1994 (5) SC 358 the Full Bench further held that interference with the detention order at a pre execution stage is limited to the five contingencies mentioned in Alfca Subash Gadia's case or other contigencies of the same species only. The Full Bench, theorefore overruled the decision of the Division Bench in Subhash Chandra's case (Supra) and sent back the writ petitions and the appeal to the Division Bench for disposal in the light of the principles laid down by them. At this stage it will be convenient to notice the facts set out in the writ petition.

(3.) According to the petitioner, the detention order is related to an incident of May 24, 1988. On that date, Indian currency amounting to Rs.2,60,000.00 was seized from one Om Prakash Gandhi, who was intercepted by the officers of the Central Economic Intelligence Bureau near the cremation ground at Jhandewalan. New Delhi. When questioned he is said to have stated that the money received from him was given by the petitioner in lieu of 10,000 US dollars and 3000 pounds received by the latter from him. The petitioner as well as Om Prakash Gandhi were arrested and produced before the concerned Magistrate on May 25,1988 when. they were remanded to judicial custody. However, the petitioner was released on bail on May 30,1988. Thereafter the detention order was passed on September 28,1988. It also appears that adjudication proceedings were initiated against the petitioner and two others under Section 15(1) of the Foreign Exchange Regulation Act, 1973 vide memo No.T-4/31-D/89 dated May 22, 1989. It is claimed that the petitioner appeared before the Deputy Director (Enforcement) and Assistant Director, the sponsoring authorities, on number of occasions, namely, November 27,1991, December 26,1991. August 10,1992, October 14, 1992, November 13, 1992,December 11, 1992, January 25,1993 and November 25, 1993 but the order of detention was not executed.