MANJUDEVI HIRACHAND JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is the wife of Shri Hirachand M. Jain, the detenu and claims to be very much interested in the welfare of her husband. This writ petition has been filed for habeas corpus under article 226 of the Constitution of India, challenging the legality and correctness of the detention order dated 14th March, 1990, issued by the 1st respondent under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detaining authority after having been subjectively satisfied that the detenu has been acting in prejudicial manner under the Act and with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange and engaging in keeping smuggled goods, it is necessary to detain him. The impugned order of detention and the grounds of detention are annexed at A and B, respectively to this petition.

(2.) ON 6th September, 1989 the premises in occupation of Hir Singh gulab Singh were searched under Section 37 of the Foreign Exchange regulation Act, 1973 by the officers of the Enforcement Directorate, bombay. The said search resulted in seizure of foreign exchange which has been set out in the grounds of detention, alongwith Indian currency of Rs. 3,16,000 and documents as per the panchnama. Hir Singh Gulab singh in his statement recorded under Section 40 of the Foreign Exchange regulation Act, 1973 inter alia stated that he has been doing the business of sale and purchase of foreign exchange since July, 1989, that he had purchased the siezed foreign exchange from various unkown persons on the previous day, that the seized Indian Currency was the sale proceeds of foreign exchange sold by him and that the said amount was to be utilised again for purchasing foreign exchange. Shri Hir Singh with reference to the account books stated that he purchased foreign exchange from one bhanaram Choudhary who had earlier been running a shop named Sangam cloth House and is now running a shop in the name and style of M/s. Prakash Jewellers, Hanuman Road, Bombay. On the basis of this information the premises of M/s. Prakash Jewellers, shop No. 2, Vile Parle, bombay was searched by the officers of the Enforcement Directorate on 11th September, 1989. The said search resulted in recovery of 5 gold bars of foreign marking of 10 tolas each, some foreign exchange of various countries. Indian Currency of Rs. 12,680, and a note book containing some pages. The statement of Shri Mangilal Choudhary was recorded on 11th September, 1989 under Section 40 of the Foreign Exchange Regulation act, 1973 in which inter alia he stated that he had been working in M/s. Sangam Cloth Stores, Hanuman Road, Bombay and the said store was owned by Shri Bhanaram Choudhary and Hirachand M. Jain the detenu. After the closure of the said shop in January 1989, the detenu had started another business in the name and style of Suman Medical Stores and also opened a shop known as M/s. Prakash Jewellers at Hanuman Road, Vile parle, Bombay. He further stated that he had been working in M/s. Prakash Jewellers since January 1989. During the investigation statements of various witnesses came to be recorded. The detenu's statement came to be recorded on 10th January, 1990. As indicated earlier the impugned order of detention was passed on 14th March, 1990 and served on the detenu on 23rd March, 1990.

(3.) SHRI Gupte, learned counsel appearing in support of this petition at the forefront urged that there was enormous delay in passing the detention order. According to the learned Counsel the incident in question took place on 6th September, 1989. The statement showing involvement of the detenu was recorded on 11th September, 1989. There is also intrinsic evidence indicating that the detenu attended the office of the directorate Enforcement on 6th November, 1989, 7th November, 1989 and 27th November, 1989. Despite the presence of the detenu on all these days no statement of the detenu was recorded till 10th January, 1990. The counsel then urged that if the dataining authority was subjectively satisfied that with a view to preventing the detenu from acting in any manner prejudicial under the Act, it was very much obligatory on the part of the detaining authority to issue the detention order expeditiously. Long delay in not issuing the detention order vitiates the subjective satisfaction and on this ground alone the detention order deserves to be quashed and set aside. This contention has been raised by the detenu in para 2 (x) of the petition.