ARVIND GANESHMAL JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS Writ of Habeas Corpus has been preferred by the petitioner, who is the nephew of the detenu Arvind Ganeshmal Jain, impugning the detention order dated 12th July, 1995 passed by the respondent No. 2 (K. L. Verma, the Joint Secretary to the Government of India, ministry of Finance, department of Revenue, New delhi) detaining the detenu under the Conservation of Foreign Exchange and Prevention of Smuggling activities Act, 1974. A true copy of the detention order dated 12th July, 1995 has been filed as exhibit A to the petition and along with the grounds of detention bearing the same date, a true copy of which has been filed as Exhibit B to the petition, was contemporaneously served on the detenu on 9th June, 1996. This petition was filed before the Aurangabad bench of this Court but, vide orders dated 2nd december, 1996, passed by a Division Bench of the said Bench (B. N. Deshmukh and R. G. Deshpande, jj.) it was transferred to Bombay. Before we proceed to dispose off the petition, we would like to mention that Mr. M. G. Karmali learned counsel for the petitioner candidly stated that the period of detention of the detenu having been over, he has been ordered to be released from the Yerwada Central Prison, wherein he was detained but as the impugned order of detention could form a foundation of consequential actions, it could be challenged through the present petition, as laid down by the Apex Court in para 5 of the decision reported in 1996 SCC (Criminal)269, Nutan J. Patel (Ms) vs. S. V. Prasad, we have examined para 5 of the said decision and we find that the said proposition has been laid down in it.

(2.) THE grounds of detention in short mention that the detaining authority was satisfied that the detenu had been engaged in unauthorised transactions ,in violation of the provisions of foreign Exchange Regulation Act, 1973, which had affected foreign exchange resources of the country adversely and therefore his detention under the conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 with a view to prevent him in future from acting in any manner prejudicial to the augmentation of the country s foreign exchange resources was imperative. In the grounds, it has been mentioned that officers of the Enforcement Directorate, Bombay, on reliable information that on 20th March, 1995, the detenu had placed an order for substantial amount of foreign currencies from Dharmachand lakhara and the same were likely to be delivered to him that day at 6 p. m. at his shop situate at 3, Pestonji Street, Colaba, Bombay-5 searched the shop of the detenu and the premises of Dharamchand lakhara, in their absence, and recovered from the former Rs. 10,000/- and some documents and from. the latter some foreign currencies. On 6th April, 1995 the statement of the detenu was recorded under section 40 of the Foreign exchange Regulation Act, 1973 (FERA ). He stated therein that officers of the Enforcement directorate had searched his shop premises on 20th march, 1995 and recovered one Maruti notebook, one pocket diary, one telephone diary, some documents and Rs. 1,10,000/- therefrom. He also mentioned therein that he had purchased US $ 7000 at black market price from Dharamchand as he had to give the same to a Arab named Ali Mohd in lieu of 599. 9 gms of gold purchased from him. On 6th April, 1995 the detenu was arrested under section 35 of the FERA and was produced before the Chief Metropolitan Magistrate, Bombay, the next day i. e. on 7th April, 1995 who ordered him to be released on bail the same day. The grounds of detention also mention that the detenu had filed a retraction petition on 7th april, 1995 which was replied by the department on 5th July, 1995 and had sent a letter on 15th april, 1995 which was replied by the department on 20th April, 1995 and another letter on 2nd May, 1995 addressed to the Assistant Registrar, enforcement Directorate Bombay, which was replied by the department on 5th July, 1995.

(3.) ALTHOUGH in this petition a number of grounds have been pleaded but, we are not adverting to them because this petition can be disposed off on the legal contention canvassed by mr. M. G. Karmali learned counsel for the petitioner pleaded in para 5 ground (ii) of the petition.