- (1.) In the instant writ petition filed under Article 226 of the Constitution of India, the petitioners, namely, Sat Pal Jain and Bimal Kumar Jain, who are brothers had initially sought for quashing of the unexecuted orders of detention bearing F. No. 673/09/2010-CUS.VIII dated 2nd June, 2010 and F. No. 673/10/2010-CUS.VIII dated 2nd June, 2010 (Annexure P-17) (Colly) passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, COFEPOSA Act) by the 1st respondent. However, vide order dated 28.2.2014, this Court rejected the prayer for interfering with the orders of detention even before its execution as not maintainable and misconceived. Petitioners were compelled to surrender to the detention order to show their bona-fides. Only after surrender to the detention orders, was the main petition taken up for its consideration on merits.
(2.) The facts leading to the filing of the instant petition are that upon receipt of an information by the Directorate of Enforcement, New Delhi, an organized Syndicate headed by Naresh Kumar Jain was continuously and actively involved in illegal foreign trade transactions in lieu of payment and receipt of Indian Currency unauthorizedly through wide Hawala network, searches were conducted under the provisions of Section 37 of FEMA 1999 read with Section 132 of the Income Tax Act,1961 at various places and as a result thereof, Indian currency, foreign currency and certain documents and articles were recovered and seized in the months of September and November, 2009. It was alleged that said Naresh Kumar Jain was a person who stayed in Dubai from 1995 till May, 2009. He came to India from Dubai without any valid documents. In Dubai, he was engaged in the arrangement and transfer of foreign exchange to various exporters/persons and vice-versa from Dubai and other countries. At the same time, he also controlled financial transactions, Hawala receipts/payments in India through a number of companies and his relatives based in Dubai and other countries. In these transactions, the export invoices were manipulated under a plan and design for constant mixing of licit and illicit financial transactions in India to give a genuine basis to the unauthorized transfer of foreign exchange through banking channels. Even after his return to India in May 2009, he continued to engage in the same business which he was doing during his stay at Dubai including arranging foreign exchange for Indian parties. Manoj Garg, Puran Chand Sharma and the petitioners, namely, Bimal Jain and Sat Pal Jain were other members of syndicate actively associated with Naresh Kumar Jain and assisted him in carrying out his illegal activities in/from India. On several such accusations, respective orders of detention were passed on 2.6.2010 against Naresh Kumar Jan, Manoj Garg, Puran Chand Sharma and the present petitioners, namely, Bimal Jain and Sat Pal Jain. The grounds of detention issued qua Naresh Kumar Jain were placed on record with the petition.
(3.) In so far as the petitioners are concerned, when this petition was filed, detention orders were yet to be executed. Petitioners had earlier approached Hon'ble Supreme Court by way of respective writ petitions under Article 32 of the Constitution of India wherein initially, execution of the detention was stayed. However, the writ petitions were dismissed as withdrawn on 1.10.2013. Petitioners had thereafter approached this Court for quashing the impugned orders of detention at pre-execution stage. The said writ petitions were dismissed by a Co-ordinate Bench vide order dated 21.12.2013. Petitioners, however, had not surrendered and instead they have filed the present petition on the same facts and grounds.;