IMPORTANT POINT
Detention order is rendered bad where sponsoring authority took time from 24-8-1998 to 3-9-1998 in sending comments and delay remained not satisfactorily explained.

JUDGMENT

K.S. Gupta, J. - The petitioner challenges the detention order dated 28th June, 1998 passed against him under Section (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (for short the Act).

2. It is inter alia alleged that the customs department at the Air Cargo Complex" Sahar International Airport, Mumbai received information that the petitioner and Amol Gavaskar had been claiming and receiving duty drawback, without exporting goods on the basis of forged documents for more than a year from the customs department at Air Cargo Complex, Mumbai. Acting on that information, the officers of the customs department on 16th October, 1997 raided the business premises of the petitioner and amongst others seized US $ 23,900, Singapore Dollars 14,500, Hong-Kong Dollars 350, Italian Lira 10,000, UK Pounds 13,834, Travellers cheques of US $ 16,050 and UK Pounds 17,200. Since only the Directorate of Enforcement (FERA) was the authorised agency to enquire about the validity of the possession of the, foreign exchange by the petitioner, on 27th November, 1997 an officer of the customs department approached the Directorate of Enforcement and handed over said foreign currency and travellers cheques, which were seized by it, vide a panchnama dated 27th November, 1997. The Directorate of Enforcement recorded statements of the petitioner on 14th January, 1998 15th January, 1998, 29th January, 1998, 12th February, 1998 and 19th February, 1998, in addition to recording statements, of certain other persons. A proposal was sponsored to detain the petitioner. The detention order dated 28th June, 1998 was passed four months thereafter.

3. It is further alleged that while passing the said order the Detaining Authority relied upon the passport of the petitioner, which is noted at serial No. 56 in the list of the relied upon documents, Petitioner's passport also contains entries showing the receipt of foreign currency by him. Petitioner was supplied only a few pages of the passport inspite of the specific request made by him in the representation dated 17th August 1998.

4. It is also alleged that after the representation dated 3rd August, 1998 made by the petitioner was rejected by the Detaining Authority, he again made a representation on 17th August, 1998 which was addressed to the Central Advisory Board with a copy, simultaneously sent to the Detaining Authority, on grounds different from those which were taken in the representation dated 3rd August, 1998. This representation was disposed of by the Detaining Authority vide order dated 10th September, 1998 received by the petitioner in Jail on 12th September, 1998. Said Representation was also rejected by the Central Government vide order dated 14th September, 1998 received by the petitioner on 16th September, 1998. Thus, there was unexplained delay not only in passing the impugned detention order but also in disposing of the representation dated 17th August, 1998 by the Detaining Authority as well as by the Central Government. Petitioner's right to make an effective representation against his detention was further frustrated because of non-supply of the remaining pages of the passport.

5. In the joint reply lied on behalf of respondents 1 to 3 on the affidavit of Somnath Pal, Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, who passed the detention order under challenge, the recovery of foreign currency and travellers cheques on 16th October, 1997 as claimed by the petitioner, is not disputed. It is, however, stated that investigation made by the Mumbai Zonal office of the Enforcement Directorate further revealed that the petitioner was involved in the following unauthorised transactions in contravention of various provisions of FERA, 1973:

(i) Unauthorised transfer of funds to the tune of Rs. 2 crores from India to Macau for getting equivalent amount of foreign exchange credited in his account and account of his sister-in-la