JAI SINGH SEKHON, J. - (1.) RAKESH Kumar Arora has filed the original writ petition under Articles 226/227 of the Constitution of India challenging the validity of the detention order Annexure P-3 dated 7-8-1989 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (hereinafter referred to as the COFEPOSA Act). The parent writ petition was filed even before the detention order was served upon the petitioner or he was detained in custody. The grounds of detention served upon Subhash Chander Gulati, employer of the petitioner, were appended as Annexure P-4 to the writ petition contending that the detaining authority has ordered the detention of the petitioner as well as his employer on the basis of the same incident and on the same date. During the pendency of this writ petition, the petitioner was arrested on 29-9-1989 and the grounds of detention Annexure P-4 were served upon him. Thereafter the petitioner filed criminal Misc. Petition No. 455 of 1989 for placing on record the amended writ petition along with this criminal Misc. petition, amended writ petition was also filed by the petitioner. In the amended writ petition, it is averred that the grounds of detention Annexure P-4 were served upon the petitioner on the date of his arrest and that the petitioner filed representation Annexure P-5 to the Central Government on 30-10-1989.
(2.) THE brief resume of facts figuring in the grounds of detention served upon the detenu and relevant for the disposal of this petition are that on 2-5-1989, the officers of Punjab Police searched the business premises of M/s Golden Silk Store, Raink Bazar, Jalandhar, and recovered the following documents, foreign currency and Indian Currency. (i) Indian currency of Rs. 57,590/- from the business premises of M/s. Golden Silk Store. (ii) US $ 2000 and Can. $ 200 in the form of International Money Orders and Travellers Cheques and documents from the person of Shri Rakesh Kumar Arora. (iii) A slip of paper from the person of Shri Raj Paul, employee of M/s. Golden Silk Store, Jalandhar, with certain accounts written thereon; (iv) Documents from the person of Shri Avinash Chander, partner, M/s. Golden Silk Store." On information, the Zonal Office of the Enforcement Directorate, Jalandhar, took over the seized currency, documents etc. from the Punjab Police and S/Shri Avinash Chander Gulati, Rakesh Kumar Arora, Raj Paul and one Ramesh Kumar Mittal son of Shri Kewal Krishan Mittal, resident of Hoshiarpur, who were present at the time of seizure of the above referred articles from the premises of M/s. Golden Silk Store, Jalandhar, were summoned under Section 40 of the Foreign Exchange Regulation Act, 1973. It is noteworthy that the petitioner is working as Salesman on the premises of M/s Golden Silk Store, Jalandhar, a partnership concern of which Shri Subhash Chander Gulati, co-detenu and Avinash Chander Gulati are partners. During enquiry by the Enforcement Staff the petitioner admitted that he is working, with this concern for the last 1-1/2 years and under the instructions of his employer he is indulging in the receipt of foreign exchange from people visiting the shop and the money in lieu thereof is paid by his co-servant Raj Paul who also maintained relevant accounts. A slip of paper bearing the coded account of purchase and sale of foreign exchange was also recovered from the personal search of Raj Paul, co-servant of the petitioner. Mr. H. S. Mattewal, the learned Senior Advocate appearing on behalf of the detenu petitioner, has challenged the detention of the petitioner mainly on two grounds although a number of objections were taken in the petition. Firstly, it is maintained that the detention of the petitioner and his employer Shri Subhash Chander Gulati co-detenu, having been ordered on the same facts figuring on the same file, the factum of recovery of some foreign currency from the said business concern on 21-11-1989 as well as the purchase of gold of foreign origin by Ashwani Kumar, from Subhash Chander as averred in the written reply filed by the respondent in the writ petition No. 2996 of 1989 of aforesaid Subhash Chander Gulati, having not been disclosed by the respondent in the grounds of detention served upon the petitioner had resulted in non-compliance with the mandatory provisions of Article 2 (5) of the Constitution as it debarred the petitioner from filing an effective representation. Mrs. Jaishri Anand, on the other band, maintained that the above referred incident involved the recovery of foreign currency notes and sale of gold by Subhash Chander Gulati only and as such there was no question of the petitioner in any way connected with the same as the petitioner happens to be a servant of Subhash Chander and not his master. In other words, she tried to make out that a servant is not liable for the individual acts of his master.
(3.) I have perused the original Ries pertaining to recovery of foreign currency from Subhash Chander Gulati as well as the sale of some gold of foreign origin by him to Shri Ashwani Kumar. The perusal of the files reveals that on 26-11-1988, the Enforcement Staff, Directorate of Revenue Intelligence searched the business premises of M/s. Golden Silk Store, Rainak Bazar, Jalandhar, in the presence of its partner Shri Subhash Chander Gulati and recovered 1800 dollars besides the recovery of Indian currency worth Rs. 50,000/-. The seizure memo does not reveal the presence of any of the servants of M/s. Golden Silk Store what to say of the presence of the petitioner. Thus it cannot be said that the detaining authority has passed the detention order of the petitioner under Section 3 of the COFEPOSA Act on the basis of recovery of some foreign currency on 26-11-1989 from the above referred business premises. The perusal of the other files shows that on 19-7-1989, the Enforcement Officer of the Directorate, Foreign Exchange, Regulations, Jalandhar, on search of the premises of Ashwani Kumar son of Mulak Raj, Lal Bazar, Jalandhar, had recovered some gold biscuits weighing 10 tolas each having foreign markings. In his statement aforesaid Ashwani Kumar stated that these gold. biscuits were purchased by him from Subhash Chander Gulati, employer of the present petitioner. Thus by no stretch of imagination it can be said that the detaining authority had passed the detention order against the petitioner on the basis of the sale of this gold of foreign origin to Ashwani Kumar as the petitioner was not at all involved therein but his employer Shri Subhash Chander Gulati only was involved. Therefore, it cannot be said that the non-disclosure of this material in the grounds, of detention served upon the detenu had resulted in violation of the mandate contained in Article 22(5) of the Constitution of India.;