NARESH THAKURDAS MEHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE neat question of law that arises for our consideration in this writ petition under Article 226 of the Constitution of India is, whether a writ petition seeking to prevent to authorities who are under statutory obligations to discharge their duties under the provisions of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA) from issuing detention order is maintainable.

(2.) THE circumstances under which this petition came to be filed are, shortly stated, as under : the petitioner, according to him, carried on business as a sole proprietor in the name and style of M/s. Brooks International, M/s. Mehra Electronics and M/s. Megha Electronics and also looks after the business of M/s. Barbara International of which Ms. Barbara Dsouza is the sole proprietress. He also contends that he is a partner of M/s. Vashi Book Centre and M/s World Book House. Further, according to him, M/s. Brooks International and M/s. Barbara International are engaged in the import of books which are and were, at all relevant times, freely permissible for import under Open General Licence by all persons and all consignments were cleared without any objection from the customs authorities. And M/s. Mehra Electronics and M/s. Megha Electronics are engaged in the import of electronic goods viz. integrated circuits which goods have been throughout imported against valid import licences and cleared on payment of requisite customs duty without any objection from the customs authorities, he further contended.

(3.) HIS case is that on 27-9-1990, at about 2. 00 p. m. he was intercepted at Medow Street, Fort, Bombay by the officers of the Enforcement Directorate, Bombay and was forcibly taken to their office at Mittal Chambers and was detained there till 30-9-1999 when he was coerced into giving statements on 27-9-1990, 28-9-1990 and 29-9-1990. He alleged that he was physically beaten up and also a panchanama was drawn on 27-9-1990 which was concluded at about 6. 00 p. m. His further allegation is that on 29-9-1990, somewhere around mid-night, he was informed that he was arrested under the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the FERA ). On the next day i. e. Sunday, the 30th September, 1990, he was produced before a Holiday Metropolitan Magistrate along with one M. D. Ruparel and one K. S. Bhasin and was remanded to police custody upto 1-10-1990. He was granted permission by the learned Magistrate for medical examination and accordingly on 30th September, 1990 he was medically examined at St. George Hospital, Bombay when it was noticed that he had injuries on his back and eye. Further, on 1-10-1990, according to him, the enforcement officer pressed his remand application wherein it was alleged that the petitioner has allegedly contravened the provisions of sections 8 (3), 8 (4), 9 (1) (b) and 9 (1) (d) of the FERA. The petitioner on the same day filed an application for bail wherein he had retracted the statements extracted from him. By an order dated 1-10-1990, he was remanded to judicial custody for fourteen days. However, the other two persons were released on bail. On 4-10-1990, he made an interim bail application which was granted by the Additional Chief Metropolitan Magistrate, Esplanade, Bombay who by an order dated 13-10-1990 released him on bail in sum of Rs. 15,00,000/- with one surety of Rs. 12,00,000/- on a condition that he attends the office of the investigating officer once a day until further orders and surrenders his passport. He was also directed not to leave Bombay without the Courts permission. Subsequently, on an application made by the petitioner, the said order dated 13-10-1990 was modified to provide for release of the petitioner on bail of Rs. 12,00,000/- with a surety for Rs. 8,00,000/- and a cash deposit of Rs. 4,00,000/ -. Thereafter the petitioner was released on bail on 15-10-1990. According to the petitioner, he abided by all the conditions of bail imposed on him.