MADHURIKA Vs. K S DILIPSINGHJI

JUDGEMENT

(1.) This is a petition for the Writ of Habeas Corpus under Art.226 of the Constitution filed by Mrs. Madhurika Chandrakant Merchant challenging the detention of her husband Chandrakant Purshottamdas Merchant under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as amended (hereinafter referred to as 'the Act'), by an order dated February 1, 1984, passed by respondent 1 on his being satisfied that the detention was necessary in order to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange. Along with the order of detention the detenu was also served with the grounds on which the detention order is based.

(2.) The petitioner has urged several grounds before us to challenge the detention. The grounds urged are (1) gross and unexplained delay in passing the detention order; (2) non-consideration consideration of representation of the detenu by the detaining authority; (3) non-consideration of detenu's letter of retraction dt. Mar. 29, 1983, addressed to the Deputy Director, Enforcement Directorate, Bombay, (4) mis-reading of the retraction dt. Mar. 16, 1983, which discloses non-application of mind by the detaining authority: (5) non-consideration of the statement of the detenu recorded on Aug. 30, 1983, by the detaining authority while passing the order of detention and further not supplying a copy thereof to the detenu. It is not necessary, however, to consider in depth each one of these contentions since in our view the two grounds viz. failure to consider the detenu's application by the detaining authority and the failure to take into consideration detenu's letter of retraction dt. Mar. 29, 1983, are sufficient to dispose of the petition in favour of the petitioner. To appreciate these grounds it is necessary to state a few facts.

(3.) On Feb. 1, 1984, an order was made by the first respondent Shri K.S. Dilipsinhji, Addl. Secretary to the Government of India, in the Ministry of Finance (Department of Revenue) New Delhi, in exercise of the powers conferred on him by sub-sec.(1) of S.3 of the Act, for the detention of the detenu. Pursuant to the order of detention the petitioner was arrested and detained on Feb. 17, 1984. At the time of his arrest he was served with the order of detention together with the grounds which were embodied in the communication dt. Feb. 1, 1984, addressed to the petitioner. The grounds of detention served on the detenu disclosed six transactions of the year 1982 in which the detenu was involved. These transactions came to light on Feb. 17, 1983. The Customs Officer recorded his statement on 17th, 18th and 19th of Feb. 1983. It is stated in the grounds that the respondent 1 on a consideration of the material placed before him was satisfied that the detenu was found indulging in unauthorised transactions in foreign exchange and in making compensatory payments to persons in India in violation of the provisions contained in the Foreign Exchange Regulations Act, 1983, which has affected the foreign exchange resources of the Country adversely. On Feb. 19, 1983, the detenu was produced before the Magistrate. On his production before the Magistrate the detenu complained about torture and illtreatment by the Enforcement Officers and retracted his statement. These allegations were repeated by the detenu in his letter dt. Feb. 25, 1983, addressed to the Deputy Director of Enforcement wherein he alleged that none of his statements were voluntary and true, but were extracted from him under pressure and against his will. Thereafter, on Mar. 16, 1983, the Enforcement Officers recorded a further statement of the detenu. In this statement he retracted from the allegations made by him before the Magistrate on Feb. 19, 1983, and in the letter dt. Feb. 25, 1983, to the Deputy Director stating that he was treated well and there was no torture. He added that "In my letter dt. 25th Feb. 1983, I wrote I was manhandled and tortured, what I meant was mental torture." He also expressed regrets for making such allegations. This was followed by another letter dt. Mar. 29, 1983, sent by the detenu to the Deputy Director. In his long letter, he retracted from his statement dt. Mar. 16, 1983, wherein he had withdrawn his allegations against the officers and alleged that the statement of Mar. 16, 1983, itself was obtained by force and torture was inflicted upon him for extracting the statement. It is admitted that this letter of Mar. 29, 1983, was not placed before the detaining authority. Thereafter, before the date of passing the detention order further statements of the detenu was recorded on Aug. 30, 1983, Sept. 27, 1983, and Jan. 6, 1984. Out of these statements the petitioner's grievance is that the detaining authority failed to consider the statement dt. Aug. 30, 1983. After detention, the detenu made separate representations to the Central Government and to respondent 1. Both the representations are dt. Feb. 21, 1984. The representation made to the Central Government was considered and rejected by the Ministry of Finance (Department of Revenue) on Mar. 7, 1984. The representation to respondent 1, who was the detaining authority was admittedly not considered by respondent 1 himself, but by Mr. M.V.N. Rao, Addl. Secretary (Anti-Smuggling) and was rejected by him on Mar. 5, 1984. Accordingly, the detention order was confirmed.