ASIA BANU LACEO AHMED Vs. UNION OF INDIA

JUDGEMENT

(1.) The Joint Secretary to the Government of India by order dated April 28, 1988 passed in exercise of powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereafter referred to as "Act") directed detention of Aslam Ahmed Zahir Ahmed Shaikh with a view to preventing him from acting in any manner prejudicial to the argumentation of foreign exchange. The order of detention was served on June 2, 1988 and the grounds of detention were furnished. The grounds of detention recite that information was received by the Bombay Zonal Office of the Enforcement Directorate that the detenu was indulging in receiving and making payments in India on instructions of persons staying abroad. On the basis of information, the residential and the business premises of the detenu were searched under Section 37 of the Foreign Exchange Regulation Act, 1973 on January 7, 1988. As a result of the search of the business premises, two bunches of loose sheets were seized; whereas the search of the residential premises resulted in recovery and seizure of Rs. 1,40,000/-, one note book and some loose sheets of papers. The statement of the detenu was recorded under Section 40 of the Foreign Exchange Regulation Act, 1973 on the same day and in his statement, the detenu admitted that Rs. 1,40,000/- which was seized was balance amount received from persons in India under the instructions of person abroad. The instructions were received from Abdul Hassan of Riyadh, the friend of the detenu and who was working as driver in Saudi Arabia for last two years. In October, 1987, Abdul Hassan enquired from the detenu whether payments to persons in India under instructions of Abdul Hassan can be made by the detenu on commission of Rs. 500/- per Rs. 1 lakh and the detenu agreed to the proposal. The detenu was required to explain certain documents seized from the business premises and the detenu accepted that these are the transactions entered into by the detenu in accordance with instructions received from Abdul Hassan from Riyadh. The detenu accepted that since November 1987, payments totalling to Rs. 6 lakhs were made after receiving Indian currency from persons in India and the detenu received Rs. 2000/- as commission. The authorities recorded statements of several other persons and on the strength of this material, the detaining authority came to the conclusion that the detenu was indulging in receiving and making payments in India, unauthorisedly under the instructions from a person residing abroad, in violation of the provisions of the Foreign Exchange Regulation Act, 1973. The detaining authority was also satisfied that these unauthorised transactions indulged in by the detenu have effected the foreign exchange resources of the country adversely, and, therefore, it was necessary to direct detention of the detenu with a view to preventing him from indulging in activities prejudicial to the argumentation of country's foreign exchange resources. The impugned order is under challenge at the instance of sister of the detenu.

(2.) Mr. Karmali, learned counsel appearing on behalf of the detenu has raised four of five contentions to challenge the legality of the order. The first submission of the learned counsel is that a very vital and relevant document was not brought to the attention of the detaining authority and that has vitiated the order of detention. With reference to ground taken in Paragraph 5(ii), the learned counsel submitted that the detenu was produced before the Metropolitan Magistrate by the Enforcement authorities on January 8, 1988 and remand was sought. The detenu submitted a written bail application and wherein the detenu averred that the Enforcement authorities had recorded his statements under duress, force, promises and threats and that he was not bound by the said statements and the same could not be used against him. Mr. Karmali submitted that it was incumbent upon the sponsoring authority to place before the detaining authority detenu's application containing retraction which was made by the detenu at the earliest opportunity on January 8, 1988. It was submitted that as the detaining authority has relied on the statement of the detenu recorded on January 7, 1988, it was incumbent to bring to the attention of the detaining authority that the said statement was retracted on January 8, 1988. Failure to bring this vital circumstances to the attention of the detaining authority, says Mr. Karmali vitiates the order of detention. In answer to the petition, the detaining authority has filed return sworn on July 20, 1988 and in paragraph 9 of the return, it is claimed that the copy of the bail application dated January 8, 1988 alleging that the statement was recorded under coercion and retracting that statement was not given to the Enforcement Directorate and, therefore, it could not be placed before the detaining authority. The return further claims that the Enforcement Department was not even aware of any such retraction filed by the detenu in the Court on January 8, 1988. The return further claims that the Department received letter dated February 8, 1988 from the detenu informing that the statements recorded on January 7, 1988 stands retracted on January 8. The Department thereupon sent reply to the detenu pointing out that the claim that on January 8, 1988 the detenu retracted the statement is not correct because the detenu reiterated the statement on January 27, 1988 by addressing a letter to the Department. The return, therefore, claims that (a) the authority was not even aware of the bail application filed by the detenu before the Metropolitan Magistrate on January 8, 1988 and which contains retraction of the statement recorded earlier, and (b) the alleged retraction on January 8, 1988 has on value as the detenu reiterated the statement on January 27, 1988. Mr. Masurkar, learned counsel appearing on behalf of the detaining authority, submitted that as the copy of the bail application filed by the detenu on January 8, 1988 containing retraction was not furnished to the Officers of the Enforcement Directorate, it was not even known to the Enforcement Directorate till February 8, 1988 that the detenu had retracted the statement. Mr. Masurkar submitted that the retraction made on February 8, 1988 was placed before the detaining authority and also the letter dated January 27, 1988 in which the detenu has reiterated and re-affirmed the statement made on January 7, 1988. Mr. Masurkar submitted that as the subsequent retraction dated February 8, 1988 was placed before the detaining authority, it is futile to suggest that failure to place the retraction dated January 8, 1988 vitiates the order. In support of the submission, learned counsel invited our attention to our decision dated June 10, 1988 delivered in Criminal Writ Petition No. 257 of 1988 wherein an identical contention on behalf of the detenu was negatived. The submission of Mr. Masurkar is correct because as held in the earlier judgment, there is nothing to establish that a copy of the bail application containing retraction filed before the Metropolitan Magistrate on January 8, 1988 was furnished to the Enforcement Directorate. The order of the Magistrate on the application was "taken on record" and no notice was given to the complainant, i.e. the Officers of Enforcement Directorate of filing of such application. As the return filed by the authorities specifically denies the receipt of copy of the application. As the return filed by the authorities specifically denies the receipt of copy of the application or knowledge of filing of such application, we do not see any reason to disbelieve the claim that the authority was not even aware of the retraction dated January 8, 1988. It is undoubtedly true that the letter dated February 8, 1988 refers to the retraction claim made before the Metropolitan Magistrate on January 8, 1988 but it is not in dispute that the retraction made on February 8, 1988 was placed before the detaining authority and was considered. In these circumstances, we are unable to accede to the submission of Mr. Karmali that failure to place the copy of the bail application containing retraction filed by the detenu on January 8, 1988 before the detaining authority vitiates the order. The first submission of the learned counsel, therefore, must be repelled.

(3.) The second contention urged by Mr. Karmali is that the representation made by the detenu to the detaining authority and the Central Government against the order of detention was not disposed of expeditiously but was delayed and for the exhorbitant delay the detaining authority has no explanation. The detenu forwarded the representation on June 16, 1988 both to the detaining authority and the Central Government and the fact of rejection of this representation by both the authorities was communicated to the detenu on July 26, 1988. The return filed by the detaining authority merely stated that the representation addressed to the detaining authority was rejected on July 19, 1988. As the return of the detaining authority was not satisfactory to explain the delay in disposal of the representation by the Central Government, we called upon Mr. Masurkar on the last occasion to file another return specifically setting out the reasons for the time taken to dispose of the representation. Accordingly, Mr. I. C. Rajan, Under Secretary to the Government of India, has filed return sworn on August 5, 1988. The return recites that the representation forwarded by the detenu was received in the COFEPOSA Section of Ministry of Finance on June 27, 1988. An information was not available with the Ministry in respect in respect of some of the submissions, a reference was made to the sponsoring authority, i.e., Directorate of Enforcement on the same day. The representation addressed to the detaining authority was received in COFEPOSA Section on June 28, 1988. The comments from the sponsoring authority was received back in the COFEPOSA Section on July 11, 1988 and the representation addressed to the detaining authority was rejected on the same day. The file was then forwarded to the Central Government, Finance Ministry on the same day for disposal of the representation addressed to the Central Government. The file was received in the Office of the Minister of State (Revenue) on July 12, 1988, but the Minister of State was on tour and on his return forwarded the representation to the Finance Minister on July 17, 1988. The Finance Minister rejected the representation on July 18, 1988 and the file was received back in COFEPOSA Section on July 19, 1988. The memorandum was forwarded to the detenu communicating rejection on the same day. Mr. Karmali submits that the return dose not explain why it required 11 days to receive representation by the COFEPOSA Section of Ministry of Finance. The learned counsel also urged that there is no explanation as to why the representation rejected by the detaining authority on July 11, 1988 was not communicated to the detenu till July 26, 1988. The learned counsel also complained that the mere fact that the Minister of State is on tour is not enough to postpone the consideration of the representation because the liberty of the citizen cannot be kept in abeyance on the spacious ground that the Minister was not available. Mr. Karmali also relied upon our the unreported judgment in Criminal Writ Petition No. 349 of 1988 delivered on July 1, 1988 to submit that the detaining authority cannot wait to communicate the decision of the representation till the Central Government decides to reject the representation. After considering the submission of the learned counsel, in our judgment, on the facts and circumstances of the present case, it is not possible to conclude that the explanation given by the Secretary to the Government of India suffers from infirmities. It is well-settled that the delay in disposal of the representation by itself is not sufficient to invalidate the order of detention, but it is necessary for the detaining authority and for the Central Government to given reasonable explanation for the delay in disposal of the representation. On perusal of the return of the detaining authority, in our judgment, the explanation offered in the present case is not unsatisfactory. It is undoubtedly true that consideration of the representation cannot be postponed merely because the Minister is not available at the Station, but in the present case, the representation was held back for the Minister only for a period of four or five days and, therefore, it would not be possible to conclude that this delay is so fatal as to invalidate the order. In our judgment, the complaint of Mr. Karmali that continuous debt is bad because of the failure to expeditiously consider the representation of the detenu cannot be accepted.