KAPIL DUTT BALI Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER -Kapil Dutt Bali through present petition filed by him under Article 226 of the Constitution of India seeks quashing of detention order dated May 6, 1994 (annexure P-1) passed by respondent under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as the COFEPOSA Act).

(2.) PLEADED case of the petitioner is that on September 12, 1993 police of Police Station Garhshankar, District Hoshiarpur, intercepted Car No. PH24-2300 at Garhshankar and arrested Suram Singh son of Jai Chand, resident of Chachahari, Police Station Badhsar, District Hamirpur and Deep Chand son of Khushi Ram, resident of Tetehal, District Kangra. One Rajinder alias Gorkha, who was also occupant of the car, however, slipped away. On search of the car, the police recovered Rs. fifty lacs. Suram Singh and Deep Chand were detained by the police and the matter was referred to the Enforcement Directorate, Jalandhar, for investigation under the provisions of Foreign Exchange Regulation Act, 1973 (for short the FERA). Under Section 40 of the FERA in their statements so recorded, it was mentioned by them that they had brought the amount from one J.P. Gupta of New Delhi to be delivered to petitioner. It is further the case of petitioner that the authorities of Enforcement Department thoroughly investigated the matter and recorded statements of various persons including J.P. Gupta but none deposed against the petitioner nor any one was known to him. The detention order, Annexure P-1, was passed on May 6, 1994 on which date as well the grounds of detention, Annexure P-2, were served upon the petitioner. He joined investigation and his statement was recorded on two different dates. He denied his connection with any person mentioned above. With regard to Rs. 50,00,00/- it is the case of the petitioner that one Tarsem Singh had made claim before the authorities concerned for return of his money as he claimed that he was owner of the same, but during the last ten months the authorities have failed to take any decision on the said claim of Tarsem Singh. The officials of the Enforcement Directorate were still not satisfied and got detention order under Section 3(1) of the COFEPOSA Act passed by the respondent. It is stated that there is no material on which the respondent could pass an order of detention. Petitioner applied for grant of anticipatory bail which was allowed. Enforcement Directorate applied for cancellation of the anticipatory bail but the said prayer was declined. The right of liberty of the petitioner so granted under Articles 14, 19, 21 and 22 is stated to have been violated. The specific grounds on which the detention order has been challenged, may be mentioned briefly. It is stated that in the first instance the satisfaction of the detaining authority was not real and germane to the purpose of the Act as the order was passed not as a preventive measure but as a punitive measure. Further, no grounds of detention were framed, formulated or signed contemporaneously and simultaneously at the time of passing of detention order. It is further pleaded that the detention order had been passed on May 6, 1994 whereas the alleged recovery of Rs. fifty lacs was made on September 12, 1993. There was, thus, a delay of eight months in passing the detention order from the prejudicial activities and there was no explanation for the long delay in the grounds of detention supplied to the petitioner. It is further the case of petitioner that the detaining authority had not applied its mind to the facts of the case. There was no application of mind regarding delay in passing the order. There were no allegations that after September 12, 1993 the petitioner had indulged in any such prejudicial activities. The order of detention is also sought to be challenged on the ground that the same was not passed by a proper officer. It is also pleaded that according to the allegations mentioned in the grounds, Annexure P-2, a complete offence had been committed but the petitioner was not involved. Had the petitioner been involved in any such case, the authorities would have prosecuted him and non-prosecution of the petitioner in any criminal case in connection with such activities shows the hollowness of the grounds of detention. It is also pleaded that no grounds existed nor the documents were placed before the detaining authority to consider the matter while passing detention order or declaration, The satisfaction of the detaining authority was, thus, void ab- initio. The mandatory provisions of COFEPOSA Act were not compiled with. Even after the revocation of the emergency in March, 1977, no steps had been taken by the respondent and as such the order was void. There was undue and unreasonable delay which makes the detention as illegal. It is further the case of petitioner that the order had been passed with a view to preventing the petitioner from acting in any manner prejudicial to the augmentation of foreign exchange. On account of the changed economic policy by the Government, there was no question of acting in any manner prejudicial to the augmentation of foreign exchange and that the documents supplied to the petitioners were irrelevant and in no way connected the petitioner with the prejudicial activities.

(3.) PURSUANT to the notice issued by this Court, written statement has been filed by Union of India through K.L. Verma, Joint Secretary to the Government of India, Ministry of Finance, New Delhi. It is pleaded by way of preliminary objections that the writ is liable to be dismissed on the ground that the detention order dated May 6, 1994 was issued against the petitioner by detaining authority after considering and going through about 1596 pages which have been relied upon while passing the detention order and that the Supreme Court had clearly held that this Court under Article 226 of the Constitution of India and the Supreme Court either under Article 32 or under Article 136 would not sit on appeal on the order of preventive detention. The normal law is that when an isolated offence or offences are committed, the offenders are to be prosecuted. If that is the law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so but it would be obligation of the detaining authority to formally comply with the provisions of Sub-Article (5) of Article 22. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with the Court cannot examine the material before it and find that the detaining authority should not have been satisfied on the material before it and detain the detenu under the preventive detention Act. For that, it is the function of the Appellate Court. It is also pleaded that retraction of the confessional statement does not wipe out the earlier confessional statement. The co-detenus of the petitioner were apprehended by the police on September 12, 1993 and their voluntary statements were recorded on September 13 and 14, 1993. Thereafter, statements of 15 persons in this connection were recorded by Delhi Branch of Enforcement Directorate on different dates. Further Investigations were also taken by the enforcement Directorate, Jalandhar as well as at Delhi. The last statement was recorded on April 6, 1994 at Delhi. It took a lot of time as persons involved in the racket went underground and were not easily available. Petitioner himself appeared before the Directorate of Enforcement, Jalandhar in the middle of November, 1993 i.e. about after two months after repeated summons were issued in him. The documents and statements which were in Punjabi and Hindi were translated and fairly typed and then grounds of detention were formulated for supplying the same to the petitioner. The time was consumed in recording statements, conducting investigation and translating the voluminous records and it took a lot of time to go through 1596 pages minutely before passing the detention order. On merits, the case of respondent is that Deep Chased and Suram Singh gave voluntary statements in their own handwriting on the basis of which action was initiated against the petitioner as well as J.P. Gupta and others. The business premises of the petitioner was searched by the officers of Enforcement Directorate on 14.9.1993 and some incriminating documents and Ross. 58,000/- were recovered and seized. On the basis of the said documents, statements of various persons were recorded, who deposed that they had received payments in India on the instructions of their relations residing abroad. Rameshwar Dass Gupta, another COFEPOSA detenu, in his statement dated 16.9.1993 recorded under Section 40 of the FERA voluntarily deposed that on 11.9.1993 at 4.00 p.m. three persons came to their Sankriti Bhawan Office, New Delhi, in a Fiat Car having registration number of Punjab and a sum of Rs. fifty lacs was handed over to them in cloth bag by one J.P. Gupta in his presence. He further deposed that J.P. Gupta had told him on 1.3.9.1993 that the three persons of Kapil Dutt Bali who had collected Rs. fifty lacs on 11.9.1993 were arrested on 12.9.1993 in Punjab and that was the same payment which was handed over to the men of petitioner. In his statements dated 6/7.4.1994 recorded under Section 40 of FERA, Prem Parkash, another COFEPOSA detenu deposed that the amount of Rs. 50 lacs which was recovered and seized from the men of petitioner i.e. Suram Singh and Deep Chand, was belonging to him (Prem Parkash) and was handed over to the men of petitioner in his cabin through J.P. Guptas to whom the said payment was made by Rameshwar Dass Gupta. It is, thus, the case of respondent that the grounds of detention were very relevant as far as petitioner was concerned. In their statements, both Suram Singh and Deep Chand stated that they were working for petitioner which fact was also corroborated by recovery of one visiting card of petitioner from Jamatalashi of Deep Chand. These persons also stated that the petitioner was engaged in distribution of payments in India to those persons whose relations were abroad and this fact was also corroborated by the recovery of incriminating documents from his business premises. Even though the petitioner has denied his connection with any of these persons but the incriminating documents recovered from his business premises, and statements of various persons recorded, as mentioned in the grounds of detention, proved that he was engaged in illegal foreign exchange transactions. One Tarsem Singh of Tanda Urmar vide his letters dated 6.10.1993 and 18.11.1993 requested for release of Rs. 50 lacs. The Assistant Director of Enforcement, Jalandhar, vide his letter dated 31.1.1994 sent reply to Tarsem Singh and he was also summoned in the office of Enforcement Directorate, Jalandhar, but he did not appear. The detaining authority passed the detention order after considering the merits of the case and material on record. It is also pleaded that detention order had nothing to do with the anticipatory bail and there was no delay in passing the detention order.