SHIV RATAN JALAN Vs. ADDITIONAL DIRECTOR ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) IN this writ application, the petitioner shri Shiv Ratan Jalan has prayed for a writ in the nature of Mandamus commanding the respondents to rescind, reject, withdraw and/or cancel the order of detention issued against the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter referred to as COFEPOSA),. A prayer for writ in the nature of Prohibition for prohibiting the respondents from relying upon or acting or taking any steps pursuant to the order of detention upon COFEPOSA against the petitioner and also from relying on the self-incriminating statements recorded from the petitioner in connection with offence under foreign Exchange Regulation Act, 1973 has also been made.

(2.) IT is the case of the petitioner that he carries on business of broker for sale of ready-made garments, hosiery products and other sundry goods and he resides at 263, Rabindra Sarani, in the City of Calcutta. The petitioner has contended that he also never possessed or acquired any foreign exchange in any manner and he was not connected with any transaction or dealing with foreign exchange either directly or indirectly. On August 8, 1985, some officers of the Customs Department, calcutta conducted a search at premises No. 263, Rabindra Sarani and it is alleged that they seized U. S. $ 15,0. 00 which, according to the customs Officers, were recovered from under the mattress of room No. 64 of the said premises. The petitioner had contended that he had never been a tenant in respect of the said room and there were about 50 other tenants in the said premises No. 2631, Rabindra Sarani. The petitioner contended that unfortunately when such search and seizure was made, your petitioner, his brother Suresh Kunrar Jalan and some other residents appended to be present in the said room No. 64. The said room was under the tenancy of Suresh Kumar Agarwalla and he was in lawful and actual possession of the room. The said Sri Agarwalla was also present at the time of search and seizure. The perritioner has contended that the petitioner and his brother were arested by the officers of the Customs Department and were taken to Customs House, Calcutta and the Customs Officers started interrogating the petitioner and his brother in various ways and they abused the petitioner and his brother filthily and heckled and manhandled the petitioner and his brother and even resorted to beating and physical assault to compel them to make statements implicating them in an alleged offence under Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA ). When the officers of the Customs department resorted to third degree method against the petitioner and his brother, the petitioner and his brother in order to save themselves from humliation had to put signatures on some statements already written down by the officers of the Customs in English. The petitioner and his brother were produced before the learned Chief Metropolitan Magistrate, calcutta and the learned Magistrate directed the petitioner and his brother to jail custody till 12th August. 1985. Thereafter, on 12th August, 1985, the petitioner and his brother were granted bail. It may be noted here that a criminal case has been instituted against the petitioner and his brother in the Court of the Chief Metropolitan Magistrate, Calcutta in connection with the aforesaid seizure of foreign exchange and such criminal case is still pending. On 11th January, 1986, the petitioner and his brother received show cause notice dated 2nd January, 1986 from the Additional Director, Enforcement Directorate, Bombay asking them to show cause why adjudication proceeding should not be held for alleged contravention of section 8 (2) of FERA and why the seized foreign currency should not be confiscated. Such adjudication proceeding was concluded and the Additional Director of Enforcement, Bombay held the petitioner guilty and imposed a penalty of Rs. 10,000/- and it was directed that the penalty should be paid within 45 days. The petitioner preferred an appeal against the said order of adjudication before the Foreign Exchange regulation Appellate Board and had also made an application for waiver of the deposit of the said penalty of Rs. 10,000/ -. The application for dispensing with the deposit of penalty of Rs. 10,000/- until the finalisation of the appeal was, however, rejected.

(3.) BEING aggrieved by the aforesaid rejection of the application for dispensing with the requirement of deposit of Rs. 10,000/-, a writ petition was moved by the petitioner in this court and such writ petition was disposed of by directing the petitioner to furnish Bank guarantee for the said sum of Rs. 10,000/- and it is the case of the petitioner that such Bank guarantee has been furnished. It is the case of the petitioner that the petitioner had an attack of Jaundice and he prayed for adjournment of the hearing of the appeal. The learned counsel for the petitioner was also out of station and the said fact was also brought his to the notice of the Appellate Authority, but the Appellate Authority disposed of the appeal and upheld the order of adjudication. The petitioner then moved a writ petition against the order of the Appellate Board dated April 15, 1988, but such writ petition was dismissed by this Court on June 24, 1988. Against such dismissal of the writ petition, the petitioner has preferred an appeal before this Court being F. M. A. T. No. 2443 of 1988 and such appeal is still pending. The petitioner has contended that on the basis of the complaint, made by the Assistant Director of enforcement, Calcutta for an alleged offence under section 56 read with section 64 (2) of FERA, a criminal case being Case No. C/19/s8 has been started and on February 27, 1988, the petitioner on his own surrendered before the learned (Magistrate and was granted bail. Such criminal case was transferred by the learned Chief Metropolitan Magistrate to the court of Sri S. K. Majurndar, the learned Metropolitan Magistrate and the petitioner and his brother were present on April 9, 1988 in the Court of the learned Magistrate but such case was adjourned. The petitioner has contended that in a local Hindi Daily viz. 'sanmarg', a notice was published on June , 1988 asking for information concerning the detention of three persons including the petitioner under the COFEPOSA. The other two persons are however, not connected with the search and seizure in which the petitioner was implicated. The petitioner thereafter came to know from the said advertisement that the petitioner is sought to be detained under COFEPOSA and against such threatened injury, the instant writ petition has been moved.