NIKHIL SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is Habeas Corpus petition filed under Article 226 of the Constitution of India. Respondents have filed objections. Lengthy arguments were heard by spreading over about 9 days.

(2.) RELEVANT facts necessary for the disposal of this petition are as follows: the detenu in this case is one Niranjan Jayantilal Shah. Petition is filed by detenus brother in law. It appears, on credible information, the Officers of Income Tax Department searched the premises of the detenu bearing flat Nos. 201, 202, 301 and 302 on 30th and 31st May, 1992 in the presence of the detenu. During this search huge foreign currency and some incriminating documents were seized. Statement of the detenu was recorded on 30-5-1992 and also on subsequent dates. The statement of the detenu disclosed that he had purchased foreign currency from unaccounted money and the detenu intended to import some machinery for his business. Seized foreign currency and copies of relevant documents were handed over to the Enforcement Directorate, Bombay for further investigation. Computer floppy and the print-out were also seized during the search which indicated that the detenu had transactions with many persons and firms and some of the entries were in Codes. Many witnesses were examined during investigation. It also transpired that the detenu had transactions with Harshad Mehta, who is the main accused in the stock scam case which shook the country. Investigation disclosed that the detenu has been engaged in unauthorised transactions in foreign exchange which is in violation of the provisions of the Foreign Exchange Regulation Act, 1973. These unauthorised transactions have affected foreign exchanges resources of the country adversely. If the detenu is allowed to continue his activities in future, then it will seriously affect augmentation of foreign exchange resources to the country. After giving details of the statements of number of witnesses recorded during the investigation, the Detaining Authority passed an order under section 3 of the COFEPOSA Act, 1974 in order to prevent the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. The detention order is dated 9-3-1993. According to the Detaining Authority the detenu had absconded from country sometime after 1-6-1992 after he was released on bail and went abroad. Number of notices were sent for his appearance and then a proclamation was issued that the detenu is absconding under the provisions of COFEPOSA Act. The prosecution was also launched against detenu in Criminal Court for disobeying the statutory notice issued by the Enforcement Directorate. Then extradition proceeding were also initiated, with the foreign country where the detenu was staying and ultimately he was brought to India in pursuance of the arrest warrant issued by the special judge in SCAM case and while the detenu was in custody in SCAM case he was formally taken into custody under the detention order on 27-8-1993. The detenu made representation to the Central Government and also to the advisory board against the order of detention. He was also heard in person by advisory board. Representation of the detenu came to be rejected by the Central Government and the order of detention was confirmed. On behalf of the detenu, his brother in law filed the present petition and has challenged the order of detention on many grounds. Respondents have filed affidavits in reply opposing the petition and supporting the order of detention.

(3.) SHRI V. R. Manohar, learned Senior Counsel appearing for the petitioner, raised following points in support of the petition.