KASTURI LAL DHIR Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this petition under Ariticle 226 of the Constitution the petitioner has challenged the order of detention dated May 3, 1989, Annexure P-1, passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short, COFEPOSA Act). The case laid in the petition is that the petitioner was allegedly apprehended from his residential house at Hoshiarpur on March 4, 1989, for an alleged offence under section 8(1) of the Foreign Exchange Regulation Act, 1973. He was produced before the Judicial Magistrate 1st Class, Jalandhar, on the following day. It is further averred that while in custody the petitioner was tortured; some recovery of foreign currency was planted on him and a confessional statement was extracted from him. The petitioner was granted bail by the Judicial Magistrate, Jalandhar, on March 7, 1999. When the petitioner came out on bail, he sent a telegram to the Enforcement Directorate on March 10, 1989, that the recovery alleged to been made from him was false and the confessional statement had been obtained under duress. The petitioner also submitted a written representation to the Director. Later the petitioner learnt that an order of detention had been passed against him on May 3, 1989. The petitioner has placed on record a copy of the said order as Annexure P-1 and has challenged that order on various grounds set out in various sub-paragraphs of paragraph 7. A return to the above petition was filed by way of affidavit of Shri Kuldeep Singh, Under Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi. It was stated therein that the petitioner was arrested on March 4, 1989, at Jalandhar at 6 p.m. Memo of arrest was prepared showing the place, date and time of arrest. The residential house of the petitioner was searched on March 4, 1989, and the search yielded pound 2543/- & US doller. 5837-22 & certain incriminating documents, Search of the residential house of one Darshan Kumar alias Darshan Dalal was also conducted on the same day at Hoshiarpur and the same resulted in seizure of documents, disclosing involvement of the petitioner in transactions in violation of the provisions of the Foreign Exchange Regulation Act, 1973. The statement of the petitioner was recorded under section 40 of the FERA, 1973. It was denied that the statement had been obtained under duress. The statement found material corroboration from the recovery of foreign currency and documents seized from the residence of the petitioner, documents seized from the residence, of Darshan Kumar and the statements of one Ashwani Kumar alias Gopi and Darshan Kumar It was also stated that the petitioner made no grievance of any duress or planting of the alleged recovery when he appeared before the Duty Magistrate, Jalandhar, in connection with remand. It was admitted that the petitioner sent a telegram on March 10, 1989. It was examined and duly replied by letters dated April 6, 1989, (Annexure R-1) and dated April 21, 1989 (Annexure R-2). With regard to the order of detention Annexure P. 1. the stand was that this was not the order of detention and in any case the order of detention wag accompanied by detailed grounds of detention which had not yet been served on the petitioner. The order of detention dated May 1, 1989, could not be executed as the petitioner had been absconding ever since. The various grounds on which the order of detention was challenged were specifically controverted. An objection was taken that as the order of detention had not been executed the writ petition itself was not maintainable. It was also stated that the pehhon could, if at all, lie only after the petitioner's representation had been considered by the Central Government and his case had been looked into by the Advisory Board.

(2.) DURING the pendency of the writ petition, Crl. Misc. No. 4908-M of 1989 was moved for staying the arrest of the petitioner pending decision of the petition. N.C. Jain, J. by his order dated June 23, 1989, issued notice to the respondents and stayed arrest of the petitioner in the meanwhile. In reply to the said Crl. Misc. application, the stand taken was that arrest of the petitioner in connection with the execution of order of detention could, not be stayed. It was also stated that in the past as well the petitioner had been found involved in prejudicial activities. In particular, on March 4, 1989, foreign currency detailed in para 2(i) was recovered from his residential house. On September 5, 1988, the petitioner was searched by the Punjab Police at Dasuya, district Hoshiarpur, resulting in the recovery of 25 gold biscuits valued at Rs. 8,94,905/-. Lastly, the personal search of the petitioner on November 4, 1985, resulted in recovery of 15217 US dollar. The petitioner had suffered detention under COFEPOSA Act from March 13, 1986 to November 14, 1986.

(3.) LEARNED counsel for the respondents took a preliminary objection that the petitioner having not been actually detained in pursuance of the order of detention, having been allowed bail by this Court, the present petition is not maintainable. This very question arose in Crl. W.P. No. 11768 of 1988, 1989(1) Recent Criminal Reports 319 (Ajay Bhudhiraja v. Union Territory, Chandigarh and another) decided by S.D. Bajaj, J. on November 17, 1988. It was held that writ petition in such circumstances is maintainable. As at present advised, I express no different opinion.