DAVE, J. - (1.) -
(2.) THESE habeas corpus petitions have been filed challenging the order of detention dated 1.05.1991 issued under Sec. 3(1) of the Foreign Exchange Regulations Act, 1974 (hereinafter referred to as 'the FERA') passed by the Joint Secretary to the Government of India detaining the petitioners (the detenue). The aforesaid order of detention was served on the detenues on 19-5-91 and 9-5-91 respectively and as the order shows, the same had been issued with a view to prevent the detenues from acting in any manner prejudicial to the augmentation of the foreign exchange. The order of detention (Annx. A) was also accompanied with the grounds of detention running into eight pages and the documents which have been relied upon while preparing the grounds. Officers of the Customs and Central Excise, Bikaner had searched the premises of one Bashir Khan s/o Shri Haju Noor Khan resident of Fatehpur, Sikar in pursuance of some information on 25th Jan., 1991 and in the said search they recovered and seized several documents relating to Hawala transactions of Shri Bashir Khan. His statement was also recorded by the Customs Authorities and then by the Enforcement Directorate on various dates, mentioned in the grounds, Annexure B, wherein he deposed that he had been receiving and making Hawala payments in India under instructions from his brother Ishaq Khan, who is residing at Doha (Outar) and one Galib of Oman. He also stated that for making payments in India, he used to receive payments from various persons including one Gulam Murtaza of Fatehpur/Jaipur. Raids were carried out at plot No. 84, Laxmi Nagar, Jhotwada Road, Jaipur, which was in occupation of Mohd. Umar, his brothers and father wherefrom certain documents and currency notes of Indian currency were recovered and Panchanama prepared. Premises at Ward No. 13, behind Idgah School, Fatehpur district Sikar were also searched wherefrom also certain documents and Indian currency amounting to Rs. 73,000/- were seized. After the aforesaid searches, on 4th Feb., 1991, on the same day, the petitioner was taken to the office of the Enforcement Directorate and as per his allegations, his statement was recorded, which was involuntary and incorrect, as he was forced to make such statement after being tortured. The petitioners were arrested under Sec. 35 of the FERA on 4-2-91 and were produced before the Chief Judicial Magistrate on 5-2-91, who remanded them to judicial custody. They, however, were ordered to be released on bail by the learned Sessions Judge, Jaipur vide order dated 8-2-91. It is, thereafter that the impugned order of detention was passed and consequence to same, the petitioners were detained and are in jail presently. The petitioners have challenged the order of detention on various grounds. The First ground of challenge is that the Detaining Authority, while passing the order of detention, has made reference to certain documents concerning the bail application, which the petitioners had filed in the Court of District and Sessions Judge, Jaipur on 6th Feb., 1991,on which they were ordered to be released on bail and relied upon the aforesaid documents as is apparent from the ground of detention, yet the copies of the application and the order has not been furnished to the detenue along with the grounds of detention. As such, no proper and sufficient opportunity was provided to the detenues to make an effective representation. It is submitted that non-supply of the documents, referred to and relied upon by the Detaining Authority virtually amounts to non-supply of material relied upon and this is violative of Article 22(5) of the Constitution of India and it renders order of detention illegal and void. The learned counsel, in respect of this submission, has relied on Smt. Icchu Devi Choradia V. Union of India and Others (1) and M. Ahamedkutty V. Union of India and another (2). Another contention of the learned counsel for the petitioners is that the petitioners were arrested on 4-2-91. Thereafter, they were granted bail on 8-2-91 but it was not thought proper to detain them under the FERA and it was as late as 1.05.1991 that the order of detention came to be passed, which clearly indicates that it is inordinately delayed, which has not been explained either in the grounds or in any other communication whatsoever. The submission of the learned counsel is that no law warrants the circumvention of the normal law and passing of inordinately delayed order of detention. The learned counsel has relied on Rabindra Kumar Ghosel v. The State of West Bengal (3) and Md. Sahabuddin V. The District Magistrate and Ors. (4) and 1989 JT (4) 557 (5). The third argument of the learned counsel for the petitioner is that the detenue submitted his representation on 15.05.1991 to respondent No. 1 and it was on 21.06.1991 that he received a reply regarding rejection of the same. His submission is that representation has not been dealt with day to day, which has rendered the impugned order illegal and void. The submission of the learned counsel is that even from the reply filed on behalf of the respondents before this Court, each day's delay has not been explained. The record shows that representation dated 15-5-91 addressed to Secretary, Finance Department is shown to have been received on 29-5-91 which shows that 15 days' time has been consumed even in placing the matter before the Detaining Authority and from 29-5-91 to 1-6-91, it remained with the Head Quarter for seeking the legal opinion. His submission is that these 26 day's delay in consideration of detenue's representation by the Central Government is not properly explained. Learned counsel in this respect has relied on Harish Pahwa v. State of U.P. (6) and Piara Singh V. State of Punjab (7). Relying on Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others (8), it was contended that there was no need for calling for the details as it is apparent from para No. 12 of the order of detention that representation was required to be forwarded through the Superintendent, Jail, Jaipur, who was an authority appointed by the State and who had all the material available for being remitted to the Central Government. Reference has been made to Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police and Ors (9), Ahmed Raza v. Union of India and others (10), Satish Bhardwaj V. Union of India and others (11) and Reena Mirchandani V. Union of India and Ors. (12). It is then submitted that the Detaining Authority has tried to confuse the detenue by sending them documents which are wholly irrelevant and are not germane to the main issue. They have neither been relied upon nor could be relied upon. There are several documents which even do not relate to the petitioner and it is submitted that this all has been done in order to misguide the petitioner. It is submitted that in para No. 11 of the detention order, the Detaining Authority has mentioned that, 'I have relied upon the documents mentioned in the enclosed list," but a perusal of the document shows that most of them neither relate to the petitioners nor have any relevance with the order of detention. It is submitted that the documents running in more than 300 pages have been handed over so that the petitioner should groupe in dark before making any effective representation with stipulated period and this action of the Detaining Authority also makes the order of detention illegal and void. In this respect, the learned counsel has relied upon Smt. Shalini Soni and others v. Union of India and others (13), Dhananjay Das v. District Magistrate and another (14) and Diwan Singh Verma v. Union of India and others (15).
(3.) THE last submission of the learned counsel is that neither the material on record for coming to the subjective satisfaction about the detenue's involvement in smuggling or his indulgency in unauthorised transactions affecting the foreign exchage resource of this country adversely nor there is any occasion to come to a conclusion that the detenue was indulging in activities prejudicial to the augmentation of country's foreign exchange resources and that the copies which have been supplied to the petitioner are so illegible that they cannot be deciphered and same has prejudiced the case of the petitioner. He has relied on Smt. Dharmista Bhagat v. State of Kerala (16) and Shri Rajinder Gautam V. Union of India and Ors. (17). Mr. Praveen Balvada, appearing on behalf of the respondent, vehemently opposed the petition and submitted that no arguments advanced by the learned counsel for the petitioners warrant any consideration in this case. Meeting the first submission of the learned counsel for the detenues, it has been submitted that the objection raised by the detenue is not worthy of any consideration because firstly only a passing reference had been given to the documents concerning the grant of bail and the said papers had not been relied upon for passing the order of detention. It is submitted that once the documents are not relied upon and only passing reference is given, it is not all necessary under any law that the same is required to be furnished to the detenue. Besides this, the application for bail was moved by the petitioner himself and the order of bail passed was in his favour. He was expected to be in possession of the copies thereof and otherwise also nothing has been shown in the petition or in the oral submissions advanced that the detenue had come with case of prejudice being caused to his case. He has relied on Madan Lal Anand V. Union of India and Ors. (18) and Ms. Mrignaini Kanwar V. State of T.N. (19). Regarding second argument concerning delay in passing the order, it is submitted that there is no inordinate delay* in passing the order. The orders are required to be passed only after all the documents are collected, perused and the Detaining Authority thereafter is satisfied that it is a fit case for detention. What is required to be seen only is that the documents of detention should not be stale or illusory and in this case there is no warrant for coming to such conclusion. Learned counsel, in this respect, has relied upon Rajendra Kumar Natvarlal Shah v. State of Gujarat and others (20), Smt. K. Aruna Kumari v. Government of Andhra Pradesh and others (21) and Rewalal and another v. Smt. Kamalbhat (22). Relying on D. John v. State of Kerala and another (23), it is submitted that there is no delay in disposal of the representation. The representation had been disposed of within the shortest period. It is submitted that the reply filed to the petition clearly explained the time taken. It is submitted that the Government of India was not to perform an ideal formality of rejecting the representation machenically. It was expected to apply its mind and in doing so it was essential to get the comments on the documents for considering the representation objectively. ;