A ABDUL ARSHATH Vs. JOINT SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE NEW DELHI

JUDGEMENT

(1.) CHALLENGE, in this action as to the order dated 26.4.1996 made by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi (1st respondent) in his proceedings F.No.673/36/96 CUS.VIII, in exercise of the powers under Sec.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974) as amended by Act 23 of 1987 (hereinafter referred to as the Act') to detain and keep one A.Abdul Arshath-detenu - in custody, in the Central Prison, Madras, with a view to preventing him in future from acting in any manner prejudicial to the augumentation of foreign exchange, is thrown by the detenu himself figuring as the petitioner.

(2.) THE factuals matrix relevant and essential-for appreciating the contentions raised in this action, as culled out from the files produced for our perusal and consideration, reflects as below.(i) THE detenu is a native of Chakkarakottai village in Ramnad District. His father, one A.Ahamed Sheriff had been transacting business in sea-food in Ramnad. He was, however, residing at Tiruchy.(ii) THE detenu, while pursuing his college career and staying in hostel, came into contact with one Syed Mohideen, employed as a clerk in an office at Doha Qatar, Dubai, through his hostel-mate, one Syed Abdullah. During March, 1995, the detenu contacted the said Syed Mohideen and expressed his willingness to take up some employment abroad. THE said Syed Mohideen, inturn, informed the detenu that it would be very difficult to get a job abroad. He, however, suggested a profitable employment for him. What all he had to do was, that he had to disburse the amounts that would be sent to him through some persons, to the local parties, as per the instructions and for the services so rendered, he would be given certain amounts by way of commission. THE offer so made was accepted by the detenu and he expressed his willingness to get himself engaged in such transactions over phone to the said Syed Mohideen.(iii) THE said Syed Mohideen informed the detenu to take a house on rent at Madras and employ trusted persons as carriers to disburse the amounts to local parties as per the instructions given to them. Accordingly, the detenu came to Madras and fixed up the house at No.11, Periyar Paadhai in Choolaimedu, Madras on a rent of Rs.1,000 per mensem. He also informed that address to the said Syed Mohideen over phone. This apart, he went to his native place and brought the following persons to Madras to act as carriers. (1) Mohd. Ibnu Massod, S/o.Mohd.Ali, (2) Jalaludeen, S/ o.Alla Pitchai (3) Subbair Ali, S/o.Ahamed Basheer (4) A.Abdul Rawoof, S/o.Alaudeen (5) A.Mohd Nuh, S/o.Amanulla, (6) Shariff, (7) Barsith Ali, S/o.Noor and (8) Ramzan Ali, S/o. Hanifa. He informed the aforesaid persons that he was going to start hundial business at Madras and if they carried amounts and delivered the same to the local parties as told by him, he would give them commission apart from giving them food and accommodation. He also explained to them that his friend Mr.Syed Mohideen in Doha Qatar, Dubai, would be sending amounts to him and the amounts so sent, had to be disbursed to local parties according to his instructions.(iv)(a) On the night of 11.10.1995, there was a vehicular check by the Customs authorities at Kolianur Railway Gate. During the process of such check, the customs authorities found three persons to be in possession of huge amounts on Indian currency, in that Subbair Ali was found to be in possession of Rs.2,08,000 Jalaludeen was found to be in possession of Rs.2,19,000 and Meeran Hussain was found to be in possession of Rs.1,85,000. Besides, they were found in possession of certain chits. THE aforesaid Indian Currency as well as the chits found in their possession, were seized by the customs authorities.(b) On 12.10.1995, the Customs authorities referred the matter to the Enforcement Directorate and handed over the Indian currency and the chits so seized to them for further investigation. On enquiry by the Enforcement Directorate, the aforesaid three person divulged that they were carrying huge amounts of Indian currency for distribution to third parties at the instance of the detenu.(c) On 13.10.1995, the detenu was intercepted in his residence at Choolaimedu and the search of the house yielded in the seizure of certain incriminating documents relating to compensatory payment transactions. A statement had also been recorded from him. THE detenu disclosed his involvement in such compensatory payment transaction at the instance of his friend one Syed Mohideen. He also disclosed as to how he came into contact with him during his College career. This apart, he had candidly admitted that the huge amount of Indian currency seized from the aforesaid persons during the vehicular check by the customs authorities at the Kolianur Railway Gate, has handed over to them by him for distribution to certain parties, as per his instructions. THE aforesaid persons also identified the detenu, as the person, who handed over huge amount to them for distribution to certain persons according to his instructions. Further follow up action had been taken up by the Enforcement Directorate in tracing persons, to whom monies had been distributed by way of compensatory payment at the instance of the detenu. Those persons also, it is said, admitted receipt of amounts by them sent by their relatives residing abroad. However, they were unable to name the person responsible for effecting the distribution of the amounts to them.(v) On 14.10.1995, the detenu was arrested and remanded to custody. He was however released on bail on 7.12.1995.(vi) THE 1st respondent/Joint Secretary to Government of India clamped upon the detenu the impugned order of detention on 26.4.1996. THE order so passed was, however, executed, in the sense of the detenu being detained in Central Prison, Madras on 25.6.1996.(vii) On 6.8.1996, the detenu was produced before the Central Advisory Board, COFEPOSA, New Delhi, and he was heard. THE detenu gave representation addressed to the Advisory Board. THE Advisory Board, after taking into consideration the relevant materials in the file, however, opined that there was justification for the preventive detention of the detenu. THE Advisory Board forwarded the representation of the detenu dated 6.8.1996 along with the file, to the 2nd respondent/Central Government, (viii) On 23.8.1996, the 2nd respondent/Central Government, it is said, rejected the representation of the detenu and the result had been communicated to him. However, the rejection of the representation by the empowered officer, that is to say, the 1st respondent/Joint Secretary to Government of India, had not at all been communicated to the detenu, there by making it appear that no order of rejection had in fact been passed by the 1st respondent/Detaining Authority. This aspect of the matter had been specifically pleased in the affidavit filed in support of the petition by the detenu. Despite this, it is not the case as pleaded by the respondents in the counter, that the 1st respondent/Detaining Authority had taken any decision, much less an independent decision, thereof.

(3.) THE detenu's case relatable to the non-consideration of the representation he had made before the Advisory Board on 6.8.1996, not having been considered independently by the 1st respondent/ Detaining Authority/ Joint Secretary to the Government of India, had been couched in para 11 of the affidavit filed in support of the petition, and the same reads as below'THE detenu had submitted before the Honourable Advisory Board three copies of the representation drafted in English and submitted the same in person. THE petitioner says and submits that both the respondents are bound to satisfy this Honourable court that the said representation was also considered by both of them and they have take a decision and disposed of the representation. It is further enjoined upon the respondents to satisfy this Honourable Court since each one of the respondents have independent power to dispose of the representation. THE representation was disposed of by them independent of each other and uninfluenced by the views of each other. Even though now more than 30 days have elapsed, the petitioner has not received any communication disposing of the representation from either of the respondents. THEre appears therefore to be serious constitutional breach.".