KAMLESHKUMAR ISHWARDAS PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS criminal writ petition is filed by the present petitioner, who is the son of one Ishwardas Bechardas Patel, detenu detained under the impugned order of detention bearing F. No. 673/1/94-CUS-VIII dated 21st January, 1994 annexed to the petition as Annexure "a", issued by Mr. Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, respondent No. 2, under section 3 (1) of the COFEPOSA Act. It is contended by Mr. Karmali, learned Counsel appearing on behalf of the petitioner, that the aforesaid impugned order of detention is illegal and is in violation of Article 22 (5) of the Constitution of India. On the other hand, Mr. Agrawal and Mrs. Desai, learned Counsel appearing on behalf of the respondents, contended that the impugned order is valid and is within the ambit of Article 22 (5) and, therefore, further prayed for the dismissal of this writ petition.

(2.) BEFORE dealing with the legal arguments as advanced by both the sides, it is desirable to go through some facts which are relevant for the disposal of this writ petition. The impugned order of detention issued by respondent No. 2, dated 21st January, 1994, under section 3 (1) of the COFEPOSA Act was served on the detenu on 5th February, 1994. The aforesaid order is Annexure "a" to the petition at page 30. Along with the aforesaid order of detention, grounds of detention which are annexed to the petition as Annexure "b" at page 31 and list of documents which is Annexure "c to the petition at page 50, were also supplied to the detenu. In Annexure "b" it is contended on behalf of the respondent-Detaining Authority that the Enforcement Directorate of Bombay received information to the effect that the detenu was receiving huge amount of Indian currency which was to be distributed as Hawala payments in India. Relying on the aforesaid information, the Enforcement Department searched the premises of the detenu under section 37 of the Foreign Exchange Regulation Act, 1973 on 5th and 6th January, 1994. In the aforesaid search, the Enforcement Department seized Indian currency of Rs. 2,15,000/- and also certain incriminating documents.

(3.) IT is the case of respondent No. 2 that after the said search, statements of the detenu were recorded under section 40 of the Foreign Exchange Regulation Act, 1973 on 6th and 7th January, 1994. In the statement of the detenu the detenu stated that he is doing business at Angadia from 1974 along with his three brothers, Ambalal B. Patel, Kantilal B. Patel and Chaturbhai B. Patel, and that the detenu has also established branch offices at Ahmedabad, Rajkot and Kolhapur respectively. In his statement he further stated that on 5th January, 1994 Enforcement Officers searched the premises of M/s Patel Ishwardas Bechardas and that the amount of Rs. 2,15,000/- recovered during the search was meant for making Hawala payments on instructions from abroad parties. He has also stated that he is carrying on the aforesaid Hawala business in addition to Angadia business and that in Hawala business he used to make payments to various persons in India whose names and addresses the detenu used to receive from Abu Dhabi through Fax. The Detaining Authority also relied on certain documents seized in the search which were grouped in different bunches, namely, Bunch `a containing 21 loose sheets, Bunch `b containing envelopes and loose sheets containing 1 to 28 Items, Bunch `c containing 55 visiting cards and Bunch `d containing 50 loose sheets. After relying on the aforesaid documents and certain statements made during the investigation, the Detaining Authority, in para 12 of the grounds of detention, Annexure "b", came to the conclusion that the detenu, in violation of the provisions of the Foreign Exchange Regulation Act, 1973, has been engaged in receiving and making payments unauthorisedly under instructions from a person resident outside India. It is further observed that the Detaining Authority is also satisfied that these unauthorised transactions indulged in by the detenu have affected the foreign exchange resources of the country adversely. Further it is stated in the said grounds of detention that if the detenu is released on bail in near future, he may again engage in future in the aforesaid prejudicial activities as earlier and, therefore, the Detaining Authority is satisfied that in view of the aforesaid facts it is necessary to detain the detenu under COFEPOSA Act, 1974. In the grounds of detention it is also stated that the Detaining Authority has relied upon the documents mentioned in the list enclosed. A copy of these grounds of detention and copies of the documents relied upon translated in Hindi language known to the detenu were also supplied to him. The aforesaid order of detention is challenged by the present petitioner by this writ petition.