S.M.DAUD - (1.)This petition by the brother of a detenu-designate is aimed against an order of detention made on 10th July, 1987 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
(2.)The detenu-designate, hereinafter referred to as Sayed Ahmed, is a person of Indian origin, but later acquired British Nationality. He is residing abroad since 1974 and had come to India on 18th May, 1974 on learning of the registration of three offences falling under the Customs Act against him. These three cases may be labelled as, (i) Defence Stores case, (ii) Singapore Airlines case, and (iii) Parkar case. On applications moved by him for bail, the Chief Metropolitan Magistrate, Bombay directed him to furnish security. The security having been furnished Sayed Ahmed was at liberty. He was permitted to go abroad and stay away from India, so that he could look after his interests elsewhere. Later on the trial of the Defence Stores case came to be stayed upon an application moved by an alleged co-accused of Sayed Ahmed. In the Singapore Airlines case Sayed Ahmed was discharged. The material collected in the Parkar case was so scanty that authorities refrained from putting up a complaint. Being a British national, Sayed Ahmed was required to obtain a Visa to return to India to face the pending prosecution against him. His applications for obtaining a Visa were turned down. Having given a commitment to the Courts in India that he would return and face trial, Sayed Ahmed moved this Court for extensions of time. The last such extension applied for and obtained was on 8th July, 1986 and the order passed thereon read thus:---
Heard Counsels. Rule returnable forthwith. Time to return extended by 6 months with liberty to move afresh in case High Courts stay continues. Rule absolute as above."
The High Court stay referred to by the learned Judge was that pertaining to the Defence Store case. Two days later i.e. on 10th July, 1986, the detention order impugned in this petition was passed.
(3.)Petitioner challenges the detention order on various grounds. All these need not be set out and appraised. That is because a ground or two will suffice to demonstrate the invalidity of the order. However, the respondents have raised a preliminary objection and it will be that objection which we shall consider first. The plea taken by the respondents is that the detenu-designate has stayed away from India and until he surrenders in response to the order of detention, the said order cannot be questioned by a petition under Article 226 of the Constitution. Mr. Canteenwala for the petitioner impugned this objection by canvassing two grounds. First, learned Counsel submits that the tie of kinship between the petitioner and the detenu-designate gives the former the locus to challenge the detention order. The detenu-designate being a full brother of the petitioner, the latter has a right to his company in this country which would be possible only if no impediment is placed in the path of Sayed Ahmed to come to and stay in India. Next, it is said that having regard to the issue of a proclamation under section 7 of the COFEPOSA Act, the petitioners personal interests are in jeopardy because of the draconian powers vested in the authorities by the Smugglers and Foreign Exchanges Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). Section 2 of the SAFEMA shows that the provisions thereto can be invoked even against a person who is the relative of person in respect of whom an order of detention has been made under the COFEPOSA Act. Mr. Canteenwala submits that having regard to the proclamation under section 7, the authorities are likely to take recourse to the SAFEMA in which case the petitioner would be in a trap. As at present , we do not think it necessary to go into the correctness or otherwise of the first plea canvassed by Counsel. Insofar as the possibility of the authorities taking recourse to SAFEMA is concerned that, in our opinion suffices to give cause to the petitioner to question the order of detention. The existence and subsistence of that order endangers the pecuniary and proportional interests of petitioner. That suffices to uphold the locus of the petitioner to move petition.