LAWS(P&H)-1994-5-105

ASHOK KUMAR MALIK Vs. UNION OF INDIA

Decided On May 31, 1994
ASHOK KUMAR MALIK Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) ASHOK Kumar Malik son of Shri Bhagwan Dass Malik, resident of 184 -WF Ali Mohalla, G.T. Road, Jalandhar City, has moved this petition on 11.8.1993 challenging the detention order dated 5.4.1989 issued by the Joint Secretary (COFEPOSA) Ministry of Finance, Department of Revenue, North Block, New Delhi, respondent No. 2. It has been alleged that the petitioner came to India on 12.11.1989 and landed at Bombay and thereafter reached Jalandhar on 20.1.1989 at the premises of his in -laws. The aforesaid premises were raided by the Enforcement Directorate, Jalandhar on 20.1.1989 and the petitioner was taken into custody because certain documents were recovered from the premises of the father -in -law of the petitioner. That the petitioner told that unless original documents were shown to him he was not in a position to come forward with any explanation and their allegation was that the petitioner remained engaged in arranging remittances worth Rs. 40,00,000/ - as a consequence of the search of the premises a sum of Rs. 8000/ - was recovered that the petitioner was arrested under Section 35 of the Foreign Exchange Regulation Act, 1973 but it appears that subsequently he was released on bail in this case and the complaint is still pending in the court of Chief Judicial Magistrate, Jalandhar. The petitioner has also alleged that the detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973 (hereinafter referred to as (COFEPOSA Act has been revoked on 6.10.1989 against his father -in -law Ram Parkash. The petitioner has inter alia averred in the petition that there was long delay in passing the detention order dated 5.4.1989 and that too has not been served on the petitioner and this would go to show that the respondent were not serious about the detention of the petitioner, that the petitioner continued appearing in the Court of the Chief Judicial Magistrate, Jalandhar, even after grant of bail on 24.1.1989; that the subjective satisfaction while passing the detention order was not recorded that there was no nexus between the date of the pre -judicial activities and the date of the passing of the executive order, that in the case of his father -in -law Ram Parkash the detention order has been quashed by the Advisory Board, that there was inordinate and un -explained delay in executing the order of detention; that though the earlier, Criminal Writ Petition was dismissed by J.S. Sekhon, J. on 2.4.1992 yet in the concluding para of his order the Court has observed that the desirability of the execution of the detention order required consideration in the light of the change in fiscal policy of the Government. This goes to show that after the dismissal of the earlier petition on 2.4.1992 the respondents did not take any effective steps for execution of the detention order and it was only on 11.8.1993 that the present second petition was moved.

(2.) ON behalf of the respondents there is an objection that an earlier petition has been dismissed on 2.4.1992 and the petitioner has been evading arrest despite best efforts made by the local police as well as the Enforcement Staff. In para No. 15 of the present petition it has been averred that it was on 30.7.1993 that some officials of the Punjab Police at the instance of the respondents visited a particular house situated in Ashok Vihar, Phase II, Delhi -52, where the petitioner was temporarily residing and the petitioner allegedly evaded arrest and moved the second writ petition in respect of the original detention order.

(3.) ON behalf of the respondents it has been pointed out that the petitioner in his statement recorded on 20.1.1989 had admitted that he had been indulging in remitting money into India from Dubai through channels other than banking channels. Besides seizure of Rs. 8000/ - several documents disclosing distribution of compensatory payments into India were also recovered and seized.