PARAMJIT SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THROUGH this Criminal Writ Petition filed under Article 226 of the Constitution of India the petitioner has thrown challenge to the detention order No. 673/14/95-Cus-VIII, dated 7.2.1995 passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred as "COFEPOSA") passed by Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, and has prayed that writ of certiorari be issued quashing this order. He was further prayed for the issuance of direction/order to the respondents not to arrest him during the pendency of the case.

(2.) IT is averred by the petitioner that he is resident of village Dugri, Tehsil Tarn Taran, District Amritsar but has been wrongly shown in the record of the Enforcement Directorate as resident of 167-B, Cheema Nagar, Jalandhar. The Chief Enforcement Officer, Enforcement Directorate, 5- Green, Model Town, Jalandhar recorded in the remand application dated 18.11.1994 (Annexure P-1) that the Phagwara Police had intercepted Maruti car No. PB-37-1213 at Chahal Nagar Crossing, G.T. Road, Phagwara on 15.11.1994 and at that time car was occupied by S/Shri Pardeep Singh Jassal, Pardeep Kumar and Karamwant Singh. It was alleged in the remand application that on the basis of information received from the aforesaid occupants of the car, residential premises of Shri Nirvail Singh, 167-B, Cheema Nagar, Jalandhar was searched. It was falsely alleged in the remand application that the petitioner was residing with Sh. Nirvail Singh at 167-B, Cheema Nagar, Jalandhar and was indulging in Hawala payments. It is further averred in this petition that the petitioner was taken into custody by the officers of the Enforcement Directorate, Jalandhar on 15.11.1994 at 8.30 P.M. The petitioner was never a resident of 167-B, Cheema Nagar, Jalandhar. He was ordinarily residing at village Dugri, Tehsil Tarn Taran, District Amritsar. He had come to Jalandhar in search of job and had stayed with his maternal uncle Shri Nirvail Singh at 167-B, Cheema Nagar, Jalandhar only for one day. He could not go back to his village as his father-in-law was not available at Jalandhar. It is averred in this petition that he had nothing to do with that car or with what was recovered lying in that car. So far as the petitioner is concerned, no incriminating document or money or material was recovered. Till 18.11.1994 he was kept in illegal custody by the officers of the Enforcement Directorate with mala fide intention. He was tortured during his illegal detention. His signatures were obtained on certain blank papers by practising duress and coercion on him. He never made any confessional statement. Officers of the Enforcement Directorate, Jalandhar falsely implicated him under section 9(1)(b) and 9(1)(d) of Foreign Exchange Regulation Act, 1973 and he was produced before the Magistrate at Jalandhar on 18.11.1994 for remand for purpose couched in remand application, Annexure P.1. He was remanded to judicial custody by the Magistrate. In the remand application there is not even a reference connecting him with the recovery of Indian currency worth Rs. 15.00 lacs, one road light having magnet at the bottom and R.C. of the car. He is not bound by any disclosure spelt out by the said documents of the car that they were to deliver Rs. 15.00 lacs to Nirvail Singh. He is not bound by any disclosure of the aforesaid occupants that Pardeep Singh Jassal and Karamwant Singh and earlier delivered Rs. 10.00 lacs to said Nirvail Singh in accordance with the instructions of Malpinder Singh of Dubai. Similarly, he is not concerned with the alleged recovery of Rs. 6,20,000/- and the documents showing receipt and distribution of hawala payments as per instructions from abroad and a machine used for receiving instructions from abroad for making such payments. On 5.1.1995, he sent representation through the jail authorities and on 15.1.1995 he sent another representation through the jail authorities that he was innocent and had been falsely implicated. On 16.1.1995 he moved application for bail in the court of Shri Bhupinder Singh, JMIC, Jalandhar (Annexure P-2). He was released on bail by the Magistrate vide order Annexure P-3. After his release on bail he submitted representation on 19.1.1995 (Annexure P-4) to the Directorate Enforcement Jalandhar that he had been falsely implicated by the enforcement staff, Jalandhar. Joint Secretary to Government of India passed detention order, Annexure P-5, dated 7.2.1995 under section 3(1) of COFEPOSA. It is averred by the petitioner that the detention order, Annexure P-5, is illegal, mala fide, un-constitutional, void, without jurisdiction as the same was passed on the basis of documents and statements with which he has nothing to do. Documents and the statements recorded of other persons do not have any bearing with the alleged occurrence and as such the detention order is void. Further, detention order was passed on 7.2.1995 when he had been detained on 15.11.1994. Detention order suffers from the vice of having been passed after inordinate delay. His representations were not considered before the detention order was passed. There is lack of application of mind on the part of the Joint Secretary to the Government of India so far as detention order is concerned. His lone statement extracted through coercion and duress by the enforcement staff was used to base the order of detention. No action was taken by the enforcement staff against the occupants of the aforesaid car. The petitioner was made a scapegoat with a view to show a big catch. Order passed is punitive in nature rather than preventive. Detention order was passed mechanically on a printed proforma. Ingredients of Section 3(1) and 3(iii) of COFEPOSA are not attracted to the facts of the case inasmuch as there was no material with the respondents to show that the detention of the petitioner would further the conservation of foreign exchange and put a stop to the smuggling activities or effect the augmentation of foreign exchange.

(3.) IN pursuance to the detention order passed, Paramjit Singh has not surrendered. It was submitted by the learned counsel for the petitioner that it does not matter if the detenu has not surrendered and has filed writ against detention. High Court and the Supreme Court can interfere with the order of detention at pre-execution stage. In support of this submission, he drew my attention to the Additional Secretary to Government of India and others v. Smt. Alka Subhash Gadia and another, 1991(1) RCR 677. In para 30 of this judgment, the Hon'ble Supreme Court has held that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is part of the basic structure of the Constitution. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. At the pre- execution stage the cases in which the courts can interfere are very few and the grounds on which the courts have interfered with detention at the pre-execution stage are very limited in number viz. where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. Powers under Articles 226-32 of Constitution of India cannot be exercised in every case but in exceptional cases.