BHANWARLAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This habeas corpus petition has been preferred by Bhanwarlal against whom an order under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (to be hereinafter referred to as the COFEPOSA Act) has been issued on 17-10-96 by the Joint Secretary to the Govt. of India directing his detention in Central Prison, Bombay. The impugned order has not been served on the petitioner. He has invoked jurisdiction of this Court on the facts that he is a permanent resident of village Dhansa in Distt. Jalore and also in possession of agricultural land and that his shop is situate in the village Dhansa within the territorial jurisdiction of this Court. It has been stated that on 10-11-95, the officers of the Enforcement Directorate searched the business premises and residential premises of the petitioner at Bombay in his absence and his nephew was taken in custody and after employing third degree methods statement of his nephew was recorded. When the petitioner reached Bombay, he approached the Enforcement Directorate and complained against the officers for employing third degree methods against his nephew. Thereafter the impugned order has been passed though the petitioner never did Hawala business and no criminal case of complaint ever has been filed against him. The order has been assailed on several grounds including that much delay was caused in issuing the orders after the alleged statement of Ashok Jain, and that the order has not yet been executed.

(2.) In the counter, the respondents have not denied that an order of detention has been issued against the petitioner. However, it was averred that the petitioner should satisfy the Court as to how he derived the knowledge of the detention order and how could he obtain the copy of the detention order along with the grounds of detention. It was denied that the nephew of the petitioner was compelled to give statement, rather summons under S. 40 of the FERA Act, 1973 was issued for his appearance in connection with the seizure of Indian currency and documents from the premises of the petitioner and Ashok Jain gave his statement voluntarily, wherein he disclosed that the documents related to 'Hawala' transaction undertaken by the petitioner. It has been averred that the statements of other persons have also been recorded during investigation which indicated that the petitioner was indulged in 'Hawala' transactions and that the detention order could not be executed because of the abscondence of the petitioner. Preliminary objections have been raised as to the maintainability of the petition, as the petitioner has not been arrested, and as to the jurisdiction of this Court to entertain the petition as the objectionable activities of the petitioner have been alleged to be in Bombay.

(3.) In reply to the counter, the petitioner reiterating the grounds averred that this is a case of exceptional type where this Court should consider the habeas corpus petition even before the arrest of the petitioner as there is absolutely no basis on which the detention order could be passed.