AVINASH CHANDER Vs. UNION OF INDIA

JUDGEMENT

(1.) AVINASH Chander Gulati petitioner through this writ petition has sought the quashment of detention order (Annexure P5) passed against him under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), hereinafter referred to as the "COFEPOSA Act", by the Joint Secretary to Government of India. Ministry of Finance, Department of Revenue, with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. This writ petition was filed before the above-referred order of detention was served upon the petitioner. The petitioner attached the grounds of detention served upon his brother Subhash Chander Galati, co-partner of the petitioner in the business of M/s. Golden Silk Store, Rainak Bazar, Jalandhar, contending that the order of detention was passed on the similar grounds as against his brother Subhash Chander Galati.

(2.) IN the grounds of detention it is mentioned that on 2-5-1989, the officers of the Punjab Police searched the business premises of M/s. Golden Silk Store, Rainak Bazar, Jalandhar, and recovered the following documents, foreign currency and Indian currency; i) Indian currency of Rs. 57, 590/- from the business premise of M/s. Golden Silk Store. ii) US dollars 2000 and Can. dollars 200 in the form of International Money Orders and Travellers Cheques and documents from the person of Shri Rakesh Kumar Arora. iii) A slip of paper from the person of Shri Raj Paul, employee of M/s. Golden Silk Store, Jalandhar, with certain accounts written thereon; iv) Documents from the person of Shri Avinash Chander Gulati, partner, M/s. Golden Silk Store. On information, the Zonal Office of the Enforcement Directorate, Jalandhar, took over the seized currency, documents etc. from the Punjab Police and Sarvshri Avinash Chander Gulati, Rakesh Kumar Arora, Raj Paul and one Ramesh Kumar Mittal son of Shri Kewal Krishan Mittal, resident of Hoshiarpur, present at the time of seizure of the above referred articles from the premises M/s. Golden Silk Store, Jalandhar were summoned under section 40 of the Foreign Exchange Regulation Act, 1973. It is noteworthy that the petitioner along with his brother Subhash Chander Gulati aforesaid are partners of the firm M/s. Golden Silk Store, Jalandhar, while S/Shri Raj Paul and Rakesh Kumar Arora are their servants. During enquiry by the Enforcement Staff, Avinash Chander Gulati, the present petitioner, admitted that he along with his brother Subhash Chander Gulati are dealing in the sale and purchase of foreign currency and in that connection severval persons used to visit their business concern. It was further found that accounts regarding sale and purchase of foreign currencies are maintained by Raj Paul servant of the petitioner in code words depicting US dollars as R pound R. Pound and Sterling of M & S.C. etc. etc. During the personal search of Raj Paul, the servant of the petitioner, the police recovered one paper containing accounts in the code words on 2-5-1989. It is further averred in the grounds of detention that Rakesh Kumar Mittal, who happened to be present at the business premises of the petitioner at the time of the said raid also admitted having indulged in the sale of foreign currency to the business concern of the petitioner at the instance of Ramesh Gupta@ Meshi and that on 2-5-1989 he had purchased foreign exchange from different villagers visiting India from abroad and had delivered the same at the business concern of the petitioner when the police came into action and seized the foreign currency, Indian currency and other documents. The grounds of detention also reveal the names of certain persons business concern of Hoshiarpur and some persons of Delhi wherefrom the business concern of the petitioner through aforesaid Rakesh Kumar Mittal used to purchase the foreign currency and sell it to different persons or concerns at Delhi.

(3.) THIS petition was resisted by the respondents by raising a preliminary objection about its maintainability contending that the petitioner being still-absconding had no locus standi to challenge the detention order. It was further maintained that there was reasonable nexus between the last criminal activity of the petitioner and the passing of the detention order and that detention order was passed without any delay. The delay in serving the detention order was due to the abscondance of the petitioner. It was also averred that the question of supplying copies of the search authorisation warrants to the petitioner does not arise as the detention order and the grounds of detention have not been served upon the petitioner. Therefore, it cannot be said at this stage that he had been denied the right of making effective representation. It was also explained that above referred recovery of foreign currency from the business concern of the petitioner on 2-5-1989 was not an isolated incident but the conduct of the petitioner had come to the adverse notice of the Department a number of times and. on 21.11.1989 1800 US dollars and Rs. 50,000/- were seized from the business premises of M/s. Golden Silk Store by the officers D.R.I. Amritsar.