Kamal Agarwal vs Union Of India And Ors.
1993 Latest Caselaw 15 Del

JUDGMENT

R.L. Gupta, J.

(1) By this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure the petitioner seeks issuance of writ of habeas corpus or any other appropriate writ, order or directions for immediate release because according to him his continued detention is illegal and wrongful. The detention order dated 22.1.92 was made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short) by the second respondent Sh. Mahendra Prasad, Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi. It was served on the petitioner on 21.8.1992.

(2) As per information, evidence and severalenquiries, the officers of the Enforcement Directorate conducted certain investigation as a result of which they found that the petitioner along with several persons in and outside India during the period from April, 1990 to July, 1990 in a systematic and calculated manner siphoned foreign exchange of approximately Rs.l2 crores in the guise of import of Photographic colour papers etc. from two Hongkong based firms. Documents were received from Bharat Overseas Bank Ltd. Calcutta through whom the said firms effected remittances and credited to the bank account of M/s Far East Trading Co. and M/s. Nippon Industrial Company, Hongkong whereas actually no import of either item had been made into India.

(3) Although the order of detention has been challenged on a number of grounds on behalf of the petitioner,the arguments have been restricted only to ground I at page 9 of the petition. According to this ground it is stated that the petitioner made a number of representations for supply of Hindi translation of the documents supplied to him along with order of detention. He also made the last representation dated 13.2.1992 to the Hon'ble Advisory Board wherein he made a similar prayer and also requested that the order of detention should be revoked. Now the grievance is that the representation although considered by the Advisory Board was not separately considered by the Detaining Authority and thus the continued detention of the petitioner is illegal. In the counter affidavit, there is no rebuttal to this allegation except that the Central Govt. bad fully considered the report of the Advisory Board and the material on record. Thus it will be seen that the respondents have tailed to show if the Central Govt. ever independently considered the representation of the petitioner for revoking the order of detention. Since representation itself has not been considered by the Central Govt., the question of supply of any decision on that representation does not arise, In similar circumstances, two writ petitions namely Cr. W.No. 551/ 91, Satish Kumar- Vs. Uoi and others and Cr. W.No-689/91 Satish Verma Vs. Uoi and others have been allowed by me vide orders dated 7.1.93. I, therefore, see no reason why this petition should not be allowed in similar circumstances.

(4) The impugned detention order, therefore, is hereby quashed. The petitioner be set at liberty if not wanted in any other case or proceedings.