- (1.)The petitioner, by means of this writ petition, has challenged the detention order dated 23.09.2009 whereby Sh. Raj Kumar Aggarwal, who is the son of the petitioner, is sought to be detained under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as 'COFEPOSA'). The detention order has not been executed so far and thus, Sh. Raj Kumar Aggarwal (hereinafter referred to as 'the detenu') has not been taken into custody. This petition has been filed at pre-detention stage. For this reason, the detenu has not been served with the grounds of detention/speaking order so far, as the requirement of serving copy of grounds of detention arises after the detenu is taken into custody. The petitioner has, therefore, filed a copy of the order dated 23.09.2009 only, which is issued by Joint Secretary, Government of India stating that the detenu be detained and kept in custody in the Central Jail, Tihar, New Delhi. However, some indications of the circumstances under which this order came to be passed, can be gathered from the counter affidavit filed by the respondents to this writ petition to which we shall advert to at the appropriate stage. Before that, we deem it proper to take note of the averments made in the writ petition, which formed the basis of challenging the detention order.
(2.)One Ambika Electronics, engaged in the business of mobile phones, belongs to Anil Kumar Aggarwal, who is detenu's brother. On 17.02.2009, premises of the said firm at 136, M.C.D. Market, Karol Bagh, New Delhi and other premises, viz., residence of Anil Kumar Aggarwal, that of detenu at Pitam Pura, New Delhi, shop premises of M/s. Bhagwati Electronics situated at 135, Municipal Market, Karol Bagh, New Delhi belonging to Kapil Jindal were raided by the office of the Directorate of Enforcement, New Delhi. Indian currency amounting to Rs. 8,00,000/- approximately was recovered and some documents were also seized by the Enforcement Authorities, who took into custody the detenu's passport as well. The detenu was also taken away by the official to their office at Jamnagar House, Akbar Road, New Delhi in the intervening night between 17.02.2009 and 18.02.2009 where he was interrogated. His statements were obtained, though it is claimed that it was done by exercising threat, pressure and coercion and that on the very next day, i.e., 19.02.2009, the detenu made retraction of the said statement. Thereafter, he was summoned on various occasions. However, because of his illness, he was unable to travel much. The detenu ultimately appeared on 15.05.2009 when his signatures were purportedly taken on certain blank papers. On 18.05.2009, he moved an application for release of the Indian currency seized on 17.02.2009. By this application, he categorically averred that the amount in question was duly accounted for in the books of accounts and he is not involved in any contravention or violation under the FEMA. On 25.05.2009, he also moved the application for release of passport seized by the officials of the Directorate of Enforcement. Reply dated 08.09.2009 was received by him stating that the matter regarding seized currency/documents would be decided after completion of investigation against the detenu.
(3.)It so happened that on 17.02.2009, residential premises of Sh. Anil Kumar Aggarwal at Pitam Pura, New Delhi were also searched and Indian currency amounting to Rs. 8,00,000/- along with certain documents were taken into possession by the Enforcement Directorate. He was also issued summons under Section 37 of FEMA pursuant to which he attended the office on 20.04.2009. On 18.05.2009, Anil Kumar Aggarwal moved the application for release of his Indian currency with the averments that the said amount is duly accounted for in his books of accounts and there is no violation or contravention under FEMA. He was also given reply dated 08.09.2009 that the matter regarding seized currency would be decided after completion of investigation into the matter. The petitioner maintains that the detenu has nothing to do with the affairs of Anil Kumar Aggarwal. In the premises of M/s. Bhagwati Electronics, searched by the Directorate, Indian Currency, this letter was recovered. Kapil Jindal was also taken to the office around 1.00 a.m. in the intervening night of 17.02.2009 and 18.02.2009 and his statement was recorded. However, he also retracted his statement on 19.02.2009 alleging that it was involuntarily statement and was obtained under threat and coercion. He also asked for return of his currency and was given the same reply, viz., the matter regarding seized currency would be decided after the completion of investigation.