MUKESH TIKAJI BORA Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Kantawalla, learned counsel appearing for the pe:itioner and Mr. Agrawal, learned counsel appearing for respondent Nos. 1 and 2, and Mr. Mhaispurkar, learned APP, appearing for the State.

(2.) By this petition, the petitioner seeks to challenge an order of detention (Annexure "a") dated 27th August, 1998 passed under section 3 (1) of the cofeposa i. e. Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974. In the petition, number of grounds have been raised, but the counsel for the petitioner argued two grounds only. Firstly, from the facts given in Grounds of Challenge (i) (a) to (i) (f) it was argued that if and when the detenu exonerated fully in the adjudication proceedings, then there was no necessity of passing detention order and, this aspect of exoneration of the detenu in the adjudication proceedings should have been taken note of by the detaining authority. The facts on the basis of this submission is made are as under:-The Enforcement Directorate, Mumbai carried out certain search of the residential premises of one Pravin Popatlal Shah under section 37 of the FERA. On 16-1-1997 the residence of detenu was searched by the same office or by the same Directorate. Then Detention order dated 27-8-1998 was passed. Then a show cause notice was given to the detenu on 18-1-1999 for contravention of the provisions of section 9 (1) (a) of the FERA. The detenu submitted his written explanation on 30-3-1999 and adjudication order came to be passed on 29-11-1999 by the Special Director of Enforcement. Copy of the said order is annexed at Exhibit D to the petition.

(3.) Mr. Kantawalla, the counsel for the petitioner relied upon the judgment of the Supreme Court reported in (1975) 1 SCC 660, Sadhu Roy vs. The State of west Bengal. In that case, detention order came to be passed on 2nd February, 1972. The incident Occurred on 3rd September, 1971. There were two cases against the detenu. The petitioner, in that case, was arrested in connection with the said cases on 9th September, 1971 and the police submitted a final report in both the cases on 6th January, 1972 and 9th February, 1972 respectively, not because there was no evidence against the petitioner, but because the detenu-petitioner being a dangerous person, witnesses were afraid to depose against him in open Court. Consequently the petitioner-detenu was discharged from those two cases on 9th February, 1972, but, because of the detention order, he was taken into custody. In this background, the Supreme Court made the following observations :-