Delhi High Court
Nawal Kishore Ghanshyam Das Bangard vs Union Of India & Ors. on 17 March, 1999
Equivalent citations: 1999IIIAD(DELHI)613, 1999CRILJ2258, 1999(50)DRJ108, 2000(70)ECC176, ILR1999DELHI198
Author: K.S. Gupta
Bench: K.S. Gupta
ORDER K.S. Gupta, J.
1. The petitioner challenges the detention order dated 28th June, 1998 passed against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (for short the 'Act').
2. It is inter alia alleged that the customs department at the Air cargo complex, Sahar International Airport, Mumbai received information that the petitioner and Amol Gavaskar had been claiming and receiving duty drawback, without exporting goods on the basis of forged documents for more than a year from the customs department at Air cargo complex, Mumbai. Acting on that information, the officers of the customs department on 16th October, 1997 raided the business premises of the petitioner and amongst others seized US $ 23,900, Singapore Dollars 14,500, Hong-Kong Dollars 350, Italian Lira 10,000, UK Pounds 13,834, Travellers cheques of US $ 16,050 and UK Pounds 17,200. Since only the Directorate of Enforcement (FERA) was the authorised agency to enquire about the validity of the possession of the foreign exchange by the petitioner, on 27th November, 1997 an officer of the customs department approached the Directorate of Enforcement and handed over said foreign currency and travellers cheques, which were seized by it, vide a panchnama dated 27th November, 1997. The Directorate of Enforcement recorded statements of the petitioner on 14th January, 1998, 15th January, 1998, 29th January,1998, 12th February, 1998 and 19th February, 1998, in addition to recording statements of certain other persons. A proposal was sponsored to detain the petitioner. The detention order dated 28th June, 1998 was passed four months thereafter.
3. It is further alleged that while passing the said order the detaining authority relied upon the passport of the petitioner, which is noted at serial No. 56 in the list of the relied upon documents. Petitioner's passport also contains entries showing the receipt of foreign currency by him. Petitioner was supplied only a few pages of the passport inspite of the specific request made by him in the representation dated 17th August, 1998.
4. It is also alleged that after the representation dated 3rd August, 1998 made by the petitioner was rejected by the detaining authority, he again made a representation on 17th August, 1998 which was addressed to the Central Advisory Board with a copy, simultaneously sent to the detaining authority, on grounds different from those which were taken in the representation dated 3rd August, 1998. This representation was disposed of by the detaining authority vide order dated 10th September, 1998 received by the petitioner in Jail on 12th September, 1998. Said representation was also rejected by the Central Government vide order dated 14th September, 1998 received by the petitioner on 16th September, 1998. Thus, there was unexplained delay not only in passing the impugned detention order but also in disposing of the representation dated 17th August, 1998 by the detaining authority as well as by the Central Government. Petitioner's right to make an effective representation against his detention was further frustrated because of non-supply of the remaining pages of the passport.
5. In the joint reply filed on behalf of respondents 1 to 3 on the affidavit of Somnath Pal, Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, who passed the detention order under challenge, the recovery of foreign currency and travellers cheques on 16th October, 1997 as claimed by the petitioner, is not disputed. It is, however, stated that investigation made by the Mumbai Zonal Office of the Enforcement Directorate further revealed that the petitioner was involved in the following unauthorised transactions in contravention of various provisions of FERA, 1973:-
(i) Unauthorised transfer of funds to the tune of Rs. 2 crores from India to Macau for getting equivalent amount of foreign exchange credited in his account and account of his sister-in-law with M/s. Top worth Investment, Macau.
(ii) Unauthorised transfer of funds to the tune of Rs. 1.80 crores to his various bank accounts in Singapore and Channel Island through one Patel.
(iii) Purchase of foreign exchange worth Rs. 15 lakhs from black market.
(iv) Made hawala payments totalling Rs. 17 lakhs to four persons in India as per instructions of one Joseph Abraham of Austria.
6. It is stated that the detention order was passed on 28th June, 1998 taking into consideration the day to day developments and the documents generated upto 29th April, 1998 and, therefore, there has been no unexplained delay in passing the order, as alleged. It is further stated that the averments of the petitioner that the foreign currency and the travellers cheques represent the left over of his earlier trips abroad, were duly considered by the detaining authority. In his own statement dated 14th January, 1998 the petitioner admitted the purchase of US $ 20,000 and Sterling Pound 10,000 from one Patel of Chheda Stationers Fountain, Mumbai at a premium. Apart from this, the petitioner was holding several bank accounts abroad in his name, jointly in the name of his wife and the sister-in-law and business account in the name of company run by him. Petitioner in his statement dated 19th February, 1998 admitted that he was to carry the foreign currency both acquired by him lawfully and unlawfully to Singapore for getting the same deposited in the bank account maintained abroad. Therefore, even if all the pages of the passport were not supplied to petitioner, there was otherwise sufficient evidence on record for subjective satisfaction of the detaining authority for making the detention order. It is further stated that the representation of the petitioner dated 17th August, 1998 addressed to Central Advisory Board was received in the Ministry on 19th August, 1998 through a covering letter of M/s. Gagrat & Company, Advocates dated 18th August, 1998. This representation was forwarded to the sponsoring authority, namely, Deputy Director, Directorate of Enforcement for comments vide Ministry's letter dated 21st August, 1998. Comments forwarded by the sponsoring authority were received in the Ministry on 7th September, 1998. The representation along with the comments of the sponsoring authority were submitted to the detaining authority on 9th September, 1998. The detaining authority considered and rejected the said representation on 10th September, 1998 and a memo intimating about the rejection of the representation was also issued on 10th September, 1998. Simultaneously, the Under Secretary submitted the said representation to the Secretary, Revenue also for independent consideration of the same on behalf of the Central Government on 9th September, 1998. The representation was considered and rejected by the Secretary, Revenue on 10th September, 1998 and a memo intimating the petitioner about the rejection of representation was issued on 14th September, 1998 as the Ministry was closed on 12th & 13th September, 1998 being Saturday and Sunday. It is claimed that there has been no unexplained delay in disposing of the representation either by the detaining authority or the Central Government. The representation dated 16th September, 1998 was duly considered by detaining authority and rejected on 6th October, 1998.
7. Main submission advanced by Sh. R.K. Jain, Sr. Advocate appearing for the petitioner was that there is unexplained delay of 16 days from 21st August, 1998 to 7th September, 1998 in deciding the representation dated 17th August, 1998 by the detaining authority and the Central Government and on that sole ground, detention order in question deserves to be quashed. In support of the submission reliance was placed amongst others on a decision in Rajammal Vs. State of Tamil Nadu & Anr., . In this decision, in the absence of explanation as to why the appellant's representation could not be dealt with by the Minister concerned from 9th February, 1998 to 14th February, 1998, the detention order made on 18th December, 1997 by the Government of Tamil Nadu was set aside. Decision in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India & Others, rendered by the Constitution Bench was also noticed and the following observations of the Bench were quoted with approval in Rajammal's case (supra):-
"It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occuring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal."
8. During the course of arguments, additional affidavit dated 18th February, 1999 of aforesaid Somnath Pal, Joint Secretary was also filed to show how the petitioner's representation was dealt with by the sponsoring authority after it was received from the Ministry. From the averments made in para No. 2 of the said supplementary affidavit, it may be noticed that the said representation running into 40 pages was received by the sponsoring authority at Mumbai on 24th August, 1998. Parawise comments on the representation were forwarded by sponsoring authority on 3rd September, 1998, which were received by the Ministry on 7th September, 1998. In between, 26th August, 1998 was a closed holiday in Mumbai on account of Parsi New Year while 29th & 30th August, 1998 were holidays being Saturday and Sunday. Obviously, said representation remained pending with the sponsoring authority for preparing the comments for 11 days from 24th August, 1998 to 3rd September, 1998. Since the said holidays were known holidays, intimated well in advance and liberty of a citizen under preventive detention was involved, the concerned officers of the sponsoring authority were supposed to prepare the comments and send them to the detaining authority promptly. Said time taken in forwarding the comments by the sponsoring authority has thus not been explained satisfactorily. Considering the ratio of the decisions referred to above and in Criminal Writ Petition No. 905/98 Dheer Singh Vs. Union of India & Others decided on 13th January, 1999 by a Division Bench of this court, the order of detention under challenge is rendered bad and deserves to be quashed on the ground of unexplained delay in deciding the said representation of the petitioner. As such, we need not go into the other grounds which were urged on behalf of the petitioner.
9. Resultantly, the petition is allowed and the detention order dated 28th June, 1998 is quashed. Petitioner be released forthwith unless he is required in connection with some other case.