B.Bhattacharya, J. - (1.) By this application under Article 226 of the Constitution of India, the petitioner has prayed for a writ of Habeas Corpus for release of her husband after setting aside order dated September 13, 1996 being No. 673/84/96-CUS VIII passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("Cofeposa").
(2.) The facts relevant for the purpose of disposal of this application can be summarised thus : (a)On the basis of the alleged information received from reliable sources that the detenu and his brother were indulging in transferring foreign exchange abroad without due process of law and they did not bring back the export proceeds to the extent of Rs. 29.91 crores to India, the Officers of the Enforcement Directorate (FERA), Calcutta Zonal Office on May 24, 1996 searched the residence and the office of the detenu and according to the respondents, huge number of incriminating documents were seized. After such search, the respondents alleged, the detenu was examined under section 40 of the Foreign Exchange Regulation Act, 1973 ("Fera") and on the basis of the aforesaid materials was arrested on May 25, 1996 for contravening various provisions of Fera. The detenu was produced before the learned Chief Metropolitan Magistrate, Calcutta on the following day when the learned Magistrate remanded him to jail custody till June 7, 1996. (b)The detenu moved an application under section 439 of the Code of Criminal Procedure before the learned Chief Judge, City Session Court at Calcutta and the learned Chief Judge by order dated May 30, 1996 released the detenu on bail of Rs. 50,000/- with two sureties of Rs. 25,000/- either in cash or by two registered sureties of Rs. 25,000/- each. By the said order, the detenu was directed to report to the investigating officer once in every week until further order. On an application for cancellation of the bail as aforesaid, this court on July 16, 1996 set aside the order of bail and directed the learned Session Court to hear out the matter afresh. Pursuant to the aforesaid order passed by this court, the learned Chief Judge, City Session Court, cancelled the bail on August 27, 1996. Against the order dated August 27, 1996 an application under section 397/401 of the Code of Criminal Procedure was moved whereupon this court on August 30, 1996 stayed the order dated August 27, 1996 for ten days. Ultimately on October 4, 1996, a learned single Judge of this court set aside the order dated August 28, 1996 and order of bail was issued. Subsequently on May 13, 1998 a special bench of this court set aside the order of bail granted by the learned single Judge. (c)In the meantime, on September 13, 1996 the detention order under section 3(1) of the Cofeposa having been passed, the petitioner filed a writ application before the Gauhati High Court on October 14, 1996 challenging the said order at pre-execution stage. On October 23, 1996 a learned single Judge of that court granted an interim stay of the said detention order till November 12, 1996. The said interim order having been vacated, on an appeal, the Division Bench of that court again granted stay of the detention order on January 10, 1997. However, the apex court on the prayer of the respondents vacated the stay order on March 16, 1998 thereby directing the detenu to surrender as per order of detention. However, such order was passed without prejudice to the right of the detenu to challenge the order of detention after surrender with additional pleas after amending the pending writ application. (d)Long thereafter on July 20, 1999 the detenu surrendered before the pending Fera case and was taken into judicial custody and the detention order dated September 13, 1996 was executed by the police on July 24, 1999 while the detenu was already in custody. (e)In view of the fact that the order of detention was executed and the detenu is detained within the jurisdiction of this court, this application has been filed before this court challenging the order of detention and the pending writ application before the Gauhati High Court has not been proceeded with.
(3.) Mr. Ghosh, the learned counsel appearing on behalf of the petitioner has attacked the order of detention by raising the following nine points :- (I)This court should ignore the affidavit-in-opposition filed by the detaining authority inasmuch as the same was affirmed not by the Officer who actually passed the order but by his successor who was incompetent to deny the allegations made in the writ application. (II)Although the order of detention is mainly based on the alleged confessional statements of the detenu but the detaining authority took no notice of the fact that such statements were retracted by the detenu at the very first opportunity on the allegation that those were procured by physical and mental torture. (III)All the materials relied upon by the detaining authority were not communicated to the detenu in violation of Article 22(5) of the Constitution of India. (IV)There was no explanation as regards delay in considering the representation of the detenu for his release. (V)There was inordinate delay in passing the order of detention from the date of alleged incident. (VI)There was unexplained delay in execution of the order of detention. (VII)The detaining authority was not aware of the fact that at the time of execution of the order of detention, the detenu was already under judicial custody and no application for bail was pending. (VIII)The documents in support of the order of detention are considered on the basis of 'pick and choose' policy. (IX)Shortage of time in passing the detention order after receipt of documents shows non-application of mind by the detaining authority.;