ASHOK KUMAR MALIK Vs. UNION OF INDIA

JUDGEMENT

(1.) Ashok Kumar Malik petitioner has filed this writ petition under Art. 226 of the Constitution of India for issuing a writ in the nature of Habeas corpus or any other writ, order or direction for quashing the detention order of the detaining authority dated 5/04/1989 passed against the petitioner under S. 3(1) of the Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 (hereinafter referred to as the 'Act') before its service upon the petitioner or his detention inter alia on the grounds of inordinate delay in passing the detention order, inordinate delay in not serving the detention order upon the petitioner, the detaining authority having not applied its mind to the facts and circumstances of the case and on the ground that the detention of Ram Parkash, father-in-law of the petitioner on similar grounds u/s. 3(1) of the Act was not approved by the Board.

(2.) In brief, the facts of the case as contained in the application Annexure P2 filed by Enforcement Directorate Jalandhar for obtaining remand u/s. 35 of the Foreign Exchange Regulation Act, 1973 against the petitioner are that on 17/01/1989 Shri Surinder Kumar Saini of Jullundur City alighted from Ariana Afgan Airline which arrived at Rajasansi Airport, Amritsar from Dubai. The custom staff on Airport recovered 43 photostat copies of documents from the possession of said Surinder Kumar Saini. The said documents disclosed accounts relating to distribution of compensatory payments in India under the instructions of persons residing in Dubai. On the basis of the contents of these documents, the officers of the Enforcement Director searched the premises of said Surinder Kumar Saini at Jullundur on 20/01/1980 which resulted in seizure of more documents. Shri Surinder Kumar in his statement recorded on that day admitted having brought the documents from Dubai at the time of his previous visit to India and also admitted that the documents contained the names and addresses of various parties and the amount of money disbursed thereto. Thereafter, one Devinder Kumar was also interrogated. On the basis of the contents of these documents, he also admitted being engaged in causing remittance into India from Duhai through channels other than Banking channels and so far as he has caused remittance of Rs. Ten Lacs from Dubai to India. Shri Devinder Kumar also-disclosed the names and addresses of certain parties involved in the said transaction besides admitting having made certain payments of money in India under the instructions of person residing outside India. On the said information, residential premises of Shri Ram Parkash, father-in-law of the present petitioner located at Ali Mohalla, Jullundur were also searched on 20/01/1989 which resulted in seizure of documents disclosing the distribution of compensatory payments in India. Ram Parkash admitted during interrogation that under the instructions of his son in-law, Ashok Kumar Malik of Dubai (the present petitioner) he received payments of money from some persons of Delhi and Jullundur and used to distribute the same to the persons residing in India. He further stated having distributed Rs. Seventeen Lacs in India under the instructions of his son-in-law residing in Dubai. Ashok Kumar Malik petitioner was also present in the house of his father-in-law Ram Parkash at the time of search and his personal search yielded the recovery of some documents disclosing the distribution of compensatory payments and Indian currency of Rs. 8.000.00. The Enforcement Officers then searched the premises of the petitioner located in Jullundur Cantt on that very day. The search of the house has also yielded the recovery of some documents disclosing the distribution of compensatory payments. In his statement, Ashok Kumar Malik petitioner inter alia admitted that he is engaged in causing remittance into India through channels other than Banking channels from Dubai and ensuring the distribution of money in India and that so far he has remitted Rs. Forty Lacs from Dubai to India. He also disclosed the names and particulars of the parties involved in the said transaction who are stationed at Dubai, Delhi and Punjab. The recovery of these documents revealed that more than 350 parties were involved in the said transaction. Under these circumstance Ashok Kumar Malik petitioner as well at his father-in-law Ram Parkash, Surinder Kumar and Devinder Kumar aforesaid were arrested for contravention of the provisions of Section 9 of the Foreign Exchange Regulation Act, 1973 by the Enforcement Directorate in exercise of the powers vested in them u/S. 35 of the Regulation Act. They were produced before the Chief Judicial Magistrate, Jullundur on 21/01/1989. The petitioner was released on bail by the Chief Judicial Magistrate, Jullundur on 24/01/1989. The petitioner also averred in the petition that he had gone to Dubai in the year 1976 and since then he is working there. The petitioner came to India on 12/01/1989 and landed at Bombay. He came over to Jullundur on 20/01/1989 to meet his in-laws. The petitioner also averred in his petition that thereafter, he continued appearing before the Court of Chief Judicial Magistrate, Jullundur in the said complaint u/S.9 of the Foreign Exchange Regulation Act, 1973 but later on the detention order dated 5/04/1989 (Annexure P9) was served upon his father-in-law Ram Parkash. He also averred that the grounds of detention order against Ram Parkash (Annexure P8) were also served but the above-referred order of detention against Ram Parkash was revoked on the advice of the Advisory Board on 6th Octnber, 1989. It is noteworthy that the petitioner had failed to furnish the copy of the detention order passed against him or the grounds of detention. Under these circumstances, the petitioner had filed the writ petition for quashing the detention order before it was served upon him on various grounds contending that he has not voluntarily made any admission before the officers of the Enforcement Staff but was forced to sign some documents.

(3.) This petition was resisted by the respondent through return filed by Shri Kuldip Singh, Under Secretary to the Government of India, Ministry of Finance Department of Revenue, New Delhi. In the return, it is admitted that the petitioner is living in Dubai and that he came to India on 12/01/1989, it is further stated that the aforesaid Surinder Kumar on interrogation has further stated that the documents recovered were given to him by Mrs. Aruna Malik at Dubai with the instructions to hand over the same to Ashok Kumar Malik petitioner at the residence of Ram Parkash and that under these circumstances, the residential premises of Ram Parkash were searched. It was also maintained that the petitioner in his statement voluntarily admitted being engaged in collection of payments in Dubai from the persons of Indian origin and causing their remittance in India through channels other than Banking channels. The petitioner also admitted that he arranged remittance in India from Dubai through Aziz and Qadir of Dubai and that under his instructions, the amounts in India are being distributed by Ram Parkash. It was also stated that the documents recovered included 43 photostat pages of the diary written by the petitioner in his own hand wherein the details of the payments got remitted into India through channels other than Banking channels figure. The petitioner was also interrogated on 1-2-1989 and inter alia admitted that as per account numbers and names of the bankers appearing in the documents recovered from Surinder Kumar, the payments had been credited to the Bank accounts under the instructions from Dubai. Under these circumstances, the detaining authority had rightly passed the order of detention under S. 3 of the Act after full application of mind as the activities of the petitioner could not he curtailed but for his detention. The remaining allegations in the petition were controverted. Later on, additional affidavit was also filed by shri Anil Kumar, Assistant Director, Enforcement Directorate, Jullundur stating that the Joint Secretary, Ministry of Finance, New Delhi had passed the detention order on 5/04/1989 against the petitioner under S. 3(1) of the Act and that he has been deputing the staff for mounting up surveillance and making discreet enquiries about the whereabouts of the petitioner but the petitioner was not available at his known address. He also averred having been making enquiries from the police authorities about the service of the detention order upon the petitioner but was informed that in spite of repeated raids, the petitioner is not available at his address and is avoiding detention. An affidavit of Shri Suresh Arora, Senior Superintendent Police, Jullundur was also filed to the effect that the order of detention dated 5/04/1989 u/s. 3(1) of the Act was received by his office on 17/04/1989 for execution and that thereafter several efforts were made and raids were conducted at the given address by the local police to execute the order but the detenu was not available.