Calcutta High Court
Sunderlal Jain vs Union Of India (Uoi) And Ors. on 7 December, 1995
Equivalent citations: 1996CRILJ962
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER S.B. Sinha, J.
1. The petitioner who is the father of one Nisith Jain has tiled this writ application, inter alia, for the following reliefs :-
"a) A writ of and/or order and/or direction in the nature of Mandamus commanding the respondents not to take any action against your petitioner's son in respect of detention order F. No. 673/120/95-CUS VIII dated 1-11-95 passed by respondent No. 3 or not to detain your petitioner's son under the provision of COFEPOSA Act, 1974.
b) A writ of and/or Order and/or direction in the nature of Mandamus commanding the respondents to cancel, rescind and/or withdraw the detention order passed against .your petitioner's son by the respondent No. 2 and/or order not to detain your petitioner's son under the COFEPOSA Act, 1974.
c) A writ of and/or order in the nature of certiorari do issue direction the respondents authorities to produce the records of the case and to certify them and after having so certified to quash the same including the order of Detention so the conscionable justice may be done."
2. Mr. Mukherjee, learned counsel appearing on behalf of the petitioner submits that in view of series of Supreme Court's decisions this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India can issue a writ of or in the nature of Mandamus directing the respondents to forbear from taking any steps or further steps to detain the petitioner's son on the basis of an order of detention dated 1-11-95 passed by the respondent No. 2.
3. The learned counsel for the petitioner in this connection has strongly relied upon the decision in the case of the Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia, , State of Tamil Nadu v. P.K. Shamsuddeen , and Subhash Muljimal Gandhi v. L. Himingliana, reported in 1994 SCC (Cri) 1580.
4. The learned counsel has also pointed out that there appears to be a mere presumption that the petitioner's son is also known as Bapi Jain although there does not exist any material therefor. The learned counsel further submits that from the Order of detention passed as against the petitioner's son it would be evident that the petitioner's son was detained with a view to prevent him from indulging in activities prejudicial to augmentation of country's foreign exchange resources which activities of the petitioner's son do not come within the purview of Section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973. It was further submitted that the order of detention sought to be passed as against the petitioner's son is on the basis of vague and extraneous ground.
5. Mr. Roy, learned counsel appearing on behalf of the respondent submits that the petitioner is not entitled to maintain this writ applications on behalf of his son inasmuch as, a Writ of Mandamus cannot be issued in favour of the petitioner on his legal right. In this connection the learned counsel has relied upon a decision in the case of S. Sinha v. S. Lal & Co. . The learned counsel submits that at this stage the petitioner's son is not entitled to an order to produce ground for detention, inasmuch as, the same can be furnished to him within four days from the date of detention. According to the learned counsel this writ application being not for a writ of Habeas Corpus, this Court could not exercise its writ jurisdiction under Article 226 of the Constitution of India.
6. So far as the preliminary objection raised by Mr. Roy, learned counsel for the respondent is concerned, in my opinion, the same has no substance. In the case of Smt. Alka Subhash Gadia, , the Suprme Court entertained a writ application filed by the wife of the detenu. The Supreme Court having regard to the provisions of Articles 21 and 22 of the Constitution in no uncertain term stated that the High Court and the Supreme Court in exercise of their jurisdiction under Articles 226 and 32 of the Constitution of India can exercise their jurisdiction in relation to an order of detention both punitive and preverntive. The Supreme Court in paragraph 12 of the said judgment held as follows :-
"To illustrate these limitations:- (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as Courts of Appeal or Revision, correct mere errors of law or of fact; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another Tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the Court does not, by exercising the writ-jurisdiction, permit the machinery created by the statute to be by-passed; (iii) it does not generally enter upon the determination of questions which demand an elaborate examination of evidence to establish the right to enforce which, the writ is claimed; (iv) it does not interfere on the merits with the determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention, such as where the determination is mala fide or is prompted by extraneous considerations or is made in contravention of the principles of natural justice or any constitutional provision; (v) the Court may also intervene where (a) the authority acting under the concerned law does not have the requisite authority or the order which is purported to have been passed under the law is not warranted or is in breach of the provisions of the concerned law or the person against whom the action is taken is not the person against whom the order is directed ; or (b) or where the authority has exceeded its powers or jurisdiction or has failed or refused to exercise jurisdiction vested in it; or (c) where the authority has not applied its mind at all or has exercised its power dishonestly or for an imporper purpose ; (vi) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief, if the Court is of opinion that there is no other convenient or efficacious remedy open to the petitioner, it will proceed to investigate the case on its merits and if the Court finds that there is an infringement of the petitioner's legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief, (vii) where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived by at by taking into consideration material which the authority properly could not, or by omitting to consider matters which it ought to have, the Court interferes with the resultant order, (viii) in proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened though not actually invaded."
7. The aforementioned decision has been followed by the Supreme Court in the case of State of Tamil Nadu v. P.K. Shamsudeen , and N.K. Bapna v. Union of India as also in the case of Subhash Muljimal Gandhi v. L. Himigliana, reported in 1994 SCC (Cri), 1560.
8. However coming to the fact of the matter it has not been denied or disputed that the petitioner's son was served with a notice issued by the Special Director, Enforcement Directorate (F. E. R. Act). The petitioner has questioned the said notice by tiling a writ application in this Court which is still pending for consideration. The petitioner has annexed a large number of documents to show that his son is Nisit Jain and not Bapi Jain or Bapi Ganesh Talkies.
9. In paragraph 12 of the writ application however the petitioner has stated that he had strong feeling that the officers of the respondent for the reasons best known to them which may be a fit subject matter of the vigilence enquity by the C. B. I. are trying their best to put his son under detention under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974. The said statements have been verified as true to his knowledge as derived from the records but no record in support thereof has been produced.
10. It has been admitted that the petitioner's son arrested in connection with a Criminal case and in course of interrogation he allegedly confessed that he during the period from 3-10-94 to 12-10-94 had received a sum of Rs. 2,00,42,262.00 from different unknown persons and made the entire payment to Shri Banwarilal Soni and Shri Murarilal Soni under instructios of one Shahzahan of Dhaka of Bangladesh. However according to the petitioner, the said confession was made as the petitioner's son was brutally beaten up and the same was extracted.
11. The learned counsel for the petitioner submits that from the said confession it does not appear that the petitioner's son has admitted himself as Bapi Jain and there is, thus no evidence on record to prove that the petitioner's son is a person who has been indulging in unauthorised transaction in violation of the Foreign Exchange Regulation Act, 1973 and in particular in the activities prejudicial to the augmentation of country's foreign exchange resources.
12. In Alka Subhash Gadia, (supra) the Supreme Court has clearly held that a writ cannot be issued unless one or the other conditions mentioned in paragraph 30 of the said judgment is fulfilled. The petitioner has filed this writ application only on the ground that the purported order of detention is sought to be executed as against a wrong person and not on the basis that it was issued for a wrong purpose.
13. No material has been placed before me to show that the order or detention has been passed on vague, extraneous or irrelevant ground. Sufficie it to say, as regards the first ground, that in relation to the order of detention served upon Shri Banwarilal Soni and Murarilal Soni as contained in annexure 'Q' to the writ application it has been stated that they were receiving and making payment in Indian currency at Calcutta under instruction of a person who is resident of Bangladesh.
14. Mr. Mukherjee, learned counsel, has accepted the said fact and submitted that the authority did not disclose the source of their information at this stage which has already been stated in paragraph 17 of the detention order.
15. Paragraph 16 of the said detention order reads thus:-
"In view of the foregoing, I have no hesitation in arriving at the conclusion that you have been engaged in unauthorised transactions in violation of the provisions of Foreign Exchange Regulation Act, 1973. I am also satisfied that the unauthrosied transactions indulged in by you have adversely affected the foreign exchange resources of the Country. Even though adjudication proceedings have already been initiated against you and others vide Memo No. T-4/ 9-C/95(SCH) dated 13-6-95 issued by the Special Director of Enforcement, New Delhi, and prosecution proceedings under Foreign Exchange Regulation Act, 1973 are likely to be initiated against you, I am satisfied that unless detained, you are likely to continue to engage in aforesaid prejudicial activities in future also and therefore, it is necessary to detain you under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from indulging in activities prejudicial to augmentation of Country's foreign exchange resources."
16. The petitioner's son evidently is being sought to be detained in connection with the activities carried out by the aforementioned Soni brothers and others. In this view of the matter, it is difficult for this Court at this stage to come to the conclusion that the order of detention has been passed for a wrong purpose. So far as the question of identity of the petitioner's son is concerned, although it is not for this Court to consider the same at this stage inasmuch as, it would be open to the detenu to make a proper representation before the Detaining Authority Central Government as well as the Advisory Board in terms of the provision of the Foreign Exchange Regulation Act. However it is noticed that in paragraph 8 of the annexure 'Q' to the writ application the Detaining Authority has categorically stated that neither Soni brothers nor their employee Tekchand Soni alias Pappy could furnish the address and identify of Bapi Jain but subsequently, based on the telephone No. 2396262 appearing at page No. 13 of the document marked 'D' seized from business premises of Banwarilal Soni on 14-12-1994 and the intelligence gathered through source revealed that Nisit Jain is also known as Bapi Jain and residing at CD-297, Salt Lake City, Calcutta 700 064. The petitioner's son was detained in connection with a very self-same case resulting in the order of detention passed as against aforementioned Soni brothers and their employees clearly go to show that there is a strong suspicion in the mind of the Detaining Authority to the effect that the petitioner's son and Bapi Jain is the same person. It is not for this Court at this stage to come to a finding on that issue, inasmuch as, as and when the order of detention in served upon the petitioner's son, he can raise the said issue before the appropriate authority. It is therefore not a case where an order of detention is sought to be executed only for the purpose of harassing and humiliating the petitioner's son by initiating a false case of smuggling. The Supreme Court on similar ground has refused to interfere with the case of Alka Subhash Gadia, (supra). In that case it has been clearly held that factual background may not be a relevant consideration at this stage. It is also not a case where the order of detention has been passed long time back.
17. For the reasons aforementioned, I am of the opinion that keeping in view the fact that in the said Criminal case the petitioner's son however has been enlarged on bail, it is not a fit case in which this Court should exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution of India for granting relief as has been sought for. However I must make it clear that it would be open to the petitioner's son or any other concerned parties to raise all contentions which have been raised in this writ application at the appropriate stage.
18. The writ application is dismissed with the aforementioned observations.
19. There will be no order as to costs.