VIJAYARAJ JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) Writ Petition No. 9380 of 1994 is filed by Bhabootmal Jain and his household servant Vagharam Choudhary. The said writ petition was filed on 16-5-1994 on the following allegations.

(2.) It is alleged in the affidavit filed in support of the petition that the petitioners are law abiding citizens, and the first petitioner has retired from active business activities since past three years. The first petitioner has stated in the affidavit that his three sons are engaged in stainless steel business, dealing only in indigenuous goods. It is said that the first petitioner's eldest son Vijayaraj is the proprietor of a firm 'VIJAYA STEEL CENTER' at No. 11/C-1, Ekambareswaram Agraharam, Madras-3. According to the first petitioner, after visiting a nearby Jain Temple in the morning, he generally used to sit in the shop for some time, for the past more than 3 years. The petitioner No. 1 states in his affidavit that the petitioners have been constrained to take exception to the misuse of provisions of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as (FERA) by a number of over enthusiastic Enforcement Officers under the sway of the fickle mistress that absolute power happens to be, against some luckless victims, like the petitioners. It is stated that the petitioners have fallen into the bad books of the Enforcement Officers. There was a raid on 1-10-1993 in the shop belonging to the elder son Vijayaraj Jain. Nothing incriminating could he recovered, though a Mahazar was prepared on that day. It is averred that after a lapse of more than seven months, the respondents, with a number of other Enforcement Officers, repeated the same exercise without any reasonable or probable cause, simultaneously at the residence of the first petitioner and the shop of his eldest son at Ekambareswarar Agraharam on 10-5-1994. At that time, the first petitioner was not present in the house. His second son Khimraj Jain was present throughout. It is said that the second respondent and a couple of other Enforcement Officers ransacked the whole house. They commenced the raid at about 1.30 p.m. and continued the search till about 3.00 p.m. on 10-5-1994, They did not find any incriminating material whatsoever. Still, the Enforcement Officers arrested the first petitioner's second son Khimraj Jain from the house, to falsely implicate him in a white collar offence to be foisted on him through his involuntary statement recorded during the late hours of 10-5-1994 night, in Shastri Bhavan. It is said that while the respondents were kind enough to give a copy of the Mahazar drawn at the house on 10-5-1994, they refused to give a copy of the statement dictated by them and written by the first petitioner's son Khimraj Jain, for reasons best known to them. It is further said that Khimraj will separately agitate about his illegal arrest and detention by the Enforcement Officers. The first petitioner has further stated in the affidavit that respondents 2 and 3, with a number of other Enforcement Officers, conducted a raid at the shop of Vijayaraj Jain, at a time when he was absent. It is stated that the petitioners were present during the fateful time of raid on 10-5-1994, which had commenced around 11.45 a.m. The Enforcement Officers did not find any incriminating material in the shop. However, from the Office situated in the first floor, they seized a sum of Rs. 3,21,800/- in Indian currency. According to the first petitioner, the said office room was locked by his son Vijayaraj, but the Officers broke open the lock and seized the currency, which was the legitimate trade balance of the shop premises, which was under the management of his son Vijayaraj. It is said that the Enforcement Officers commenced the search around 11.30 a.m. and continued the same till about 4.00 p.m. on 10-5-1994. During the course of the raid, they have seized the sum of Rs. 3,21,800/- with some telephone books and some other insignificant papers of no commercial value. They also prepared a mahazar and gave a copy to the first petitioner (copy of which is filed along with the writ petition.) It is said that after conducting the search and seizure of the shop in the manner mentioned above, respondents 2 and 3 and other Enforcement Officers took the petitioners to their illegal custody without there being any reason to believe that the petitioners are guilty of any offence punishable under any of the provisions of FERA. They did not inform the petitioners about the grounds of their arrest from the shop on 10-5-1994. It is said that the petitioners were served with summons only u/S. 40 of the FERA, 1973, but actually the petitioners were arrested by respondents 3 and 4 at about 4.00 p.m. on 10-5-1994 and lodged in the Enforcement Directorate Office at Shastri Bhavan. The petitioners have stated that in the dead of night, the 3rd respondent dictated an inculpatory prolix statement to each of the petitioners separately to be written in their own hand writing, wherein they have freely used the words like 'SINGAPORE' 'DEEN,' whereby they could attribute an offence of violation of the provisions of FERA against the petitioners. Copy of the statement of the petitioners so recorded by the Enforcement Officers was not given to any of them, for reasons best known to the Enforcement Officers. The petitioners would say that the statements in question are not their voluntary statements and they do not reflect the true state of affairs. Copies of the summons issued under S. 40 of FERA, 1973 by 3rd respondent against the petitioners have been produced along with the writ petition. It is stated that the family members of the petitioners made frantic efforts to know the whereabouts of the petitioners, but they could not succeed. On the morning of 11-5-1994, family members of the petitioners approached Mr. C. R. Raghavan, Advocate, and instructed him to find out the whereabouts of the petitioners. The wife of the second son of the first petitioner gave a telegram to the Chief Justice, who was then at Kodaikanal, for the release of all the detenus. It is said that the Advocate Mr. C. R. Raghavan also visited the office of the Enforcement Directorate on 11-5-1994 around 8.45 a.m. but he could not find any Officer present in the Office, and he was not permitted to meet any of the petitioners in the office. Thereafter, the first petitioner's family members contacted their present Counsel, to take suitable steps for release of the detenus, whereupon he made enquiries with the concerned vacation Officer to bring the matter before appropriate Bench. But, before they moved the vacation Court, the petitioners themselves were released at 9.30 p.m. on 11-5-1994. The petitioners were directed by the third respondent orally to attend the Enforcement Directorate Office on 12-5-1994 at 1.00 a.m. In the meanwhile, the petitioners addressed a telegram to the third respondent, retracting their involuntary statements recorded by him and have also stated therein that they would appear before the appropriate Officer only on receipt of summons by the concerned Officer. Copy of the telegram sent by the petitioners in also produced along with the writ petition. It is stated that even though the petitioners have been released from illegal detention, yet, the petitioners apprehend that their personal liberty lies at the hands of the over-zealous Enforcement Officers, who may arrest them, on the basis of the involuntary and inculpatory statements given by them while they were under duress on 10-5-1994. Various grounds are mentioned in the writ petition by the petitioners as to why they have invoked the extraordinary original jurisdiction of this Court.

(3.) It is stated that the Enforcement Officers have played a fraud on the Statute by resorting to illegal detention in the guise of summoning the detenus to the Enforcement Officers either to give evidence or produce a document. It is stated that the detention of the petitioners was, therefore, mala fide, contrary to law and extrastatutory. It is said that S. 35 of FERA empowers an Enforcement Officer to arrest persons suspected of being guilty of any offence punishable under FERA. Again, arrests are to be generally resorted to where the detected offence is of a serious nature, evidence of personal culpability and strong prima facie case and the likelihood of the person tampering with the evidence or by remaining absconding. It is said that there is no such allegation so far as the petitioners are concerned. It is also said that procedure fairness is among is the key purposes of the Constitution of India. According to the petitioners, their arrest is in direct violation of Art. 21 of the Constitution. Petitioners would say that there is a tendency on the part of the Enforcement Authority to bolster up false case for its own subjective satisfaction or for statistical purposes. It is said that the powers conferred on the Enforcement Officers under Ss. 35 and 37 of FERA, though very wide, are not plenary. It is further said that the powers under the Statute to conduct a search, seizure and arrest of suspected persons can be exercised by Competent Officers, but that power is hedged with a condition that the same could be exercised only if the Officers had reason to believe, which expression is not synonymous with 'subjective satisfaction' of the officers, and it is incumbent upon this Court to examine ex debito justitiae, whether the reason for the belief had a rational connection or a relevant bearing to the formation of such belief and were not extraneous or irrelevant to the purpose of the sections. It is stated that the recovery of Indian currency to the tune of Rs. 3,21,800/- from the shop of the first petitioner's son cannot connect the petitioners with the alleged violation of any of the provisions of FERA. It is also said that an offence cannot be presumed, and that the respondents are bent upon treating something out of nothing, by manufacturing tons of evidence in the form of confessional statements obtained from the petitioners by resorting to tactics which the Court would never countenance. It is said that the procedural requirements of S. 35 of FERA read with Art. 22 of the Constitution are all mandatory. In the instant case, the petitioners were arrested by the Enforcement Officers at 4.00 p.m. on 10-5-1994 and were kept in. their illegal custody till 9.30 p.m. on 11-5-1994. This apart during the custody, each petitioner was induced under threat of bodily injury, to give inculpatory statements in their own handwriting copies of which have not been given to the petitioners. It is stated that the arrest and detention of the petitioners by the Enforcement Officers for more than 30 hours and voluntarily causing hurt to extort confessional statement from the petitioners renders the entire investigation process illegal, ultra vires and unconstitutional being violative of the Constitution of India read with S. 58 of FERA, 1973. It makes the judicial process an object of aberration and abuse, which ought to be prevented to secure the ends of justice.