SARUP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) SARUP Singh, petitioner, by means of this criminal writ petition under Articles 226, 227 of the Constitution of India, seeks qua- of the detention order F-No. 873/116/90-Cus-III dtd. 30-4-90, passed by the Joint Secretary to the Govt. of India, New Delhi under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ('COFEPOSA' in brief).

(2.) A resume of the facts may be gathered from the grounds of detention Annexure P.10, on the basis of which detention order Annexure P9 was passed. The authorities received information that the petitioner along with his brother-in-law Surinder Singh, was indulging in sale/purchase of foreign currency on a large scale. The petitioner had been keeping foreign currencies at the residential premises of Smt. Kulwant Kaur w/o Gurmail Singh in village Tanda, Hoshiarpur. On the basis of the information, on 30-1-90 a search was carried out at (1) his residential-cum-business premises and (2) that of Smt. Kulwant Kaur. While search of petitioner's premises led to seizure of documents and Indian Currency of Rs. 1,16,850/- that of Smt. Kulwant Kaur resulted in seizure of documents, including two loose-sheets. Surinder Singh was found present at the premises of the petitioner. Both Surinder Singh and the petitioner were summoned for appearance in the office of Enforcement Directorate, Jalandhar for 30-1-90 and their statements were recorded on the same day. The petitioner in his statement affirmed his business abroad and his last visit abroad on 26-7-85. It was admitted that Surinder Singh was working with the petitioner on his hardware shop and his monthly income was Rs. 500/- The documents recovered from petitioner's pocket were admitted to be his handwritten containing calculations and two dates of 27-1-90 and 29-1-90 and carried the figures as 17000 DM, $ 2000/- DM 6000/- $ 5673, DM 6000/-. These calculations were of foreign currencies. A paper was also recovered from the shop with respect to a cheque bearing the date 9-11-88 of some foreign bank. Calculation on another document was also admitted to be in his own hand. The diaries recovered also carried his writing. Surinder Singh in his statement affirmed that he had been working with the petitioner and doing whatever was told by him. He also stated about the transactions in-foreign currency of about Rs. 2 lacs per diem. The petitioner was admitted to bail on 6-2-90. As a follow-up action the residential premises of Parmal Singh were searched on 30.1.90 resulting in seizure of 2 bank pass books. In his statement. Parmal Singh affirmed that his son-in-law Balwinder Singh son of Munsha Singh used to reside near Govt. School, Saila Road, Tanda in Hoshiarpur District. He had been residing in Germany and he had sent one cheque from Germany favouring him and had also sent another cheque with the direction that the same be delivered to his father and search of the premises of Balwinder Singh was then carried out and documents were seized. Only Smt. Sheel Kaur mother of Balwinder Singh was present. However, she could not give any information about the seizure of pass books and bank counterfoils. In view her statement, summonses under Section 40 of the Foreign Exchange Regulation Act were issued to Balwinder Singh and Munsha Singh. The letter appeared on 3-2-90 and affirmed having received a cheque from Balwinder Singh through Parmal Singh and that he had given the cheque to Sarup Singh around December 1988. He identified Sarup Singh petitioner but he could not give further details as to how much amount he received in consideration of the cheque. Dhian Singh, father of the petitioner sent a telegram dated 30-1-90 making allegation against the officers of the Enforcement Agency. The complaint was inquired into and found to be false. It was thus, concluded that the petitioner was indulging in nefarious transactions in foreign exchange in violation of the provisions of Foreign Exchange Regulation Act.

(3.) DURING arguments, the main attack levelled on the detention order Annexure P9 was that the petitioner was not supplied with the documents which had been relied upon for passing the impugned detention order. In reply, it has been averred that the search warrants were not relied upon for passing the impugned order and as such the same were not furnished to him. However. details of search warrants were given in the Panchnama and the same having been incorporated in the documents supplied, the petitioner had not been prejudiced. Similarly, the documents seized from the premises of Kulwant Kaur Parmal Singh and Balwinder Singh had not been relied upon for passing the detention order and these were not served on him at the time of detention. However on the request made by him for the supply of these documents (paragraph 5 of representation of the petitioner dated 12-5-90), the same were furnished to him on 6-690. In reply to paragraph 8, it has been pleaded that the representation was received in the Ministry on 17-5-90. After processing the papers were forwarded to the Ministry on 25 5-90. The representation was rejected on 28-5-90.