Manohar Lal Bhatia vs The Union Of India And Others
1985 Latest Caselaw 284 Del

JUDGMENT

Prakash Narain, C.J.

1. This judgment will dispose of Criminal Writ No. 19 of 1985 and Criminal Writ No. 21 of 1985, which have been filed by father and son challenging the orders passed in regard to their detention by the Additional Secretary to the Government of India on June 28, 1984 under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in order to prevent each one of them in acting in any manner prejudicial to the augmentation of foreign exchange.

2. An information was received in the month of December 1983 by the Enforcement Directorate, Delhi Zonal Office to the effect that petitioners were indulging in illegal sale and purchase of foreign exchange as well as in arranging compensatory payments on a large scale for the last many years. Premises situated at B-4/29-B, Ashok Vihar Phase II, Delhi were searched by the officers of the Enforcement Directorate on December 13, 1983. As a result of the search a large number of documents and a sum of Rs. 20,000/- were recovered from the said premises stated to be the residential premises of Manohar Lal Bhatia and his family. Statements were recorded on diverse dates of the two petitioners and explanations were asked for in regard to the seized money and the alleged transactions evidenced by the documents seized. The transactions pertained to 'Hawala' transactions and as well as dealing in foreign exchange. Premises of certain other parties were also searched. Under S. 37 of the Foreign Exchange Regulation Act, statements of certain other parties were also recorded. On the basis of the material so obtained which showed alleged illegal dealings involving foreign exchange continuously for many years, the petitioners were detained by the aforesaid orders. Grounds of detention as well as copies of documents relied upon were served on them.

3. The petitioners challenged their detention and continued detention and obtained rule nisi from this Court. By way of return, affidavits in each case have been filed sworn by Shri A. K. Agnihotri, Under-Secretary, Ministry of Finance, Department of Revenue, Government of India, New Delhi. Petitioners were given opportunity to file additional affidavit to which also counter-affidavit was filed by respondents sworn by Shri A. P. Panday, Assistant Director, Enforcement Directorate, New Delhi.

4. The grounds on which petitioners challenged their detention are given in paragraph 15 of Criminal Writ No. 19 of 1985 and paragraph 13 of Criminal Writ No. 21 of 1985. Inasmuch as the grounds of challenge are identical, we will deal with the grounds taken by both the petitioners together.

5. The first ground of challenge is that the Advisory Board appears to have opined that the detention of the petitioners were justified. They have not opined that the continued detention of the petitioners was justified. The distinction sought to be made is based on the amendment of Sections 8(c) and 8(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Ordinance promulgated by the President on July 13, 1984, by virtue of which for the words "for the detention" appearing in clauses (c) and (f) of S. 8, the words "the continued detention" were substituted. The detention was confirmed by the Advisory Board by an order of September 14, 1984. It is urged that apart from stating that the detention was justified, the Advisory Board was bound to also opine whether the continued detention was justified. There is, in our opinion, a fallacy in the argument of the petitioner. When the Advisory Board opined that there is justification for the detention of a detenu, it gives the opinion after taking into consideration all the material placed before it and by keeping in view the detention order. Unless S. 9 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is invoked the detention is normally for a period of one year. Therefore, when the Advisory Board looks into the case it necessarily applies its mind to both the aspects namely, whether there was justification for passing the detention order in order to detain the detenu and also whether detention should be for one year. It can happen that the very satisfaction under S. 3(1) of the Act is vitiated and, therefore, there could be no detention. It can also happen that a valid detention order is passed but the continued detention becomes bad on account of certain infirmities which have crept in later on. If the infirmities have crept in later on, for example, non-supply of documents asked for, it is for the detenu to point them out to the Advisory Board so that the Advisory Board can apply its mind to it. If no infirmity subsequent to detention is pointed out and the Advisory Board says that there is justification for detention it must mean not only detaining by virtue of the order but also continued detention in accordance with the order of detention. There is, therefore, no force in this argument which must be held to be hair splitting in the absence of any material given to show that the continued detention had become bad during the period from the actual detention till the Advisory Board considered the case.

6. We cannot accept the contention that 'Hawala' transactions involving or pertaining to foreign exchange does not adversely affect augmentation of foreign exchange. Augmentation does not merely mean preservation but also earning of foreign exchange by the country.

7. We do not know how the satisfaction is vitiated on account of mala fides. No particulars have been given and as such the contention has no force. Likewise, we cannot accept that the detention on a reading of the grounds of detention becomes a punitive measure. It is incorrect to say that the 'Hawala' transactions are stale or that the transactions relied upon are stale. Indeed, there was material before the detaining authority on the basis of which he could hold that there was a systematic illegal activity almost up to the date of the search and seizure. There is nothing to show that the grounds of detention have been concocted or fabricated. No material has been placed before us to show that and it is not for us to re-appreciate or re-appraise the evidentiary value of the material placed before the detaining authority.

8. The allegation of suppression of material facts are vague and have to be rejected. There has been no delay, in our opinion, between the search conducted on December 13, 1983 and the passing of the detention order on June 28, 1984. The intervening period has been fully explained and it cannot be said that undue delay took place. With regard to the contention of non-supply of documents we find the contention wholly untenable. The demand for documents was couched in the vaguest possible language by counsel for the petitioners. The demand is contained in identical letters dt. July 16, 1984 addressed by counsel for the two petitioners. Learned counsel referred to paragraphs '3' and '5' of the said letters dt. July 16, 1984, which reads as under :-

"After going through the grounds of detention along with the connected papers it is found that some of the papers have not been supplied to the detenu."

"The full and complete copies of the Annexure of the grounds of detention are absolutely necessary to enable the detenu to make the effective representation. In absence of the complete papers the detenu is not in a position to defend himself properly and effectively."

9. Such a demand was rightly rejected by the communication dt. July 21, 1984.

10. It is contended by the petitioners that the representation dt. August 9, 1984 was not considered. Both the detenus had made identical representations to the Additional Secretary to the Government of India. These representations were considered and rejected by a communication of August 21, 1984. One of the points raised in these representations is that the petitioners should have been prosecuted instead of detained under COFEPOSA and that even the search and seizure were illegal. It is now a settled law that the prosecution has nothing to do with detention. These are two independent proceedings and both courses can be adopted where necessary. If search and seizure were illegal that may be a point available to the petitioners in the prosecution but certainly not available in preventive detention in which persons are detained in order to prevent them from indulging in alleged nefarious activities in the jurisdiction of suspicion.

11. Learned counsel for the petitioners was not able to show us which other document relied upon or referred to by the detaining authority was not made available to the petitioners in order to enable them to make an effective representation as postulated by Art. 22(5) of the Constitution of India.

12. No other point was urged, except the legal propositions put forward by Mr. Herjinder Singh in Criminal Writ No. 20 of 1985. We have already given our opinion in regard to them earlier. There is no force in these contentions.

13. With regard to the contention in the additional affidavits that certain documents were placed before the Advisory Board, copies of which were not supplied to the petitioners, it has been stated on affidavit by Shri Panday that the allegation is incorrect. No documents other than the ones relied upon and referred to by the detaining authority were placed before the Advisory Board. Copies of brief informative note prepared on the basis of the documents relied upon were given to the Members of Advisory Board for their ready reference on their directions. Copy of this note was not required to be supplied to the petitioners.

14. We, therefore, find no force in the petitions. We discharge the rule issued in each of the petitions and dismiss the same.

15. Petition dismissed.