The main legal point established in the judgment is the right to liberty and the power of the Court to examine the legality of an order affecting the liberty of a citizen.

1. Through this writ petition for hebeas corpus Rajiv Talwar petitioner seeks quashment of the detention order Annexure P-1 passed on 19-5-1989 by Sh. A. K. Batabyal, Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter called the. Act, with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange.

2. A brief resume of relevant facts figuring in the grounds of detention Annexure P-2 is that on 13-4-89, at about 1.00 a.m., the officers of the Customs and Central Excise, Chandigarh intercepted one Maruti Car bearing Registration No. CHF 1212, at Tribune Chowk, Chandigarh and found Sudarshan Kumar, a co-associate of the petitioner and Smt. Anita Arora, travelling in that car. The personal search of Sudarshan Kumar, yielded the recovery of 8400 US $, besides Rs. 2000.00 in Indian currency. As a follow up action, the said officers searched the premises of aforesaid Sudarshan Kumar, G. S. Mandhanda, Ajay Budhiraja and Rakesh Budhiraja, but nothing incriminating was recovered from their respective premises. However, the search of the residential premises of Rajiv Talwar petitioner yielded the recovery of some documents and fixed deposit receipts of the value of Rs. 2,61,000.00 besides Rupees 1,73,550/- in cash. During interrogation by the Assistant Collector (Preventive), Customs and Central Excise, Chandigarh Sudarshan Kumar admitted that he used to deal in the business of sale and purchase of foreign currency with Rajiv Talwar petitioner and other persons, referred to above. The petitioner was apprehended on 13-4-89. On interrogation, he also admitted his indulgence in the sale and purchase of foreign currency, besides admitting that pages 50 and 60 of the seized dairy from his residence relate to calculations of foreign currencies sold by the petitioner. The petitioner and the aforesaid Sudarshan Kumar were released on bail on 19-4-1989 by the Chief Judicial Magistrate. Under these circumstances, the order of detention Annexure P-1 dated 19-5-1989 was passed against the petitioner. This order, however, remained unserved upon the petitioner so far.

3. The petitioner challenged to above referred to detention order by filing Cr. Writ Petn. No. 2374 of 1989 which was dismissed on 7-11-1989 by S. D. Bajaj, J. as being incompetent for failure of the petitioner to append the grounds of detention therewith, and that the grounds appended to the petition served upon Sudarshan Kumar, his co-associates were not identical. The petitioner then procured the grounds of detention Annexure P-2 and filed the present Criminal Writ Petition, challenging the order of his detention, inter alia, on the ground that nothing incriminating was recovered from his possession and that a single instance of possession of foreign currency by Sudarshan Kumar, a co-associate of the petitioner was not sufficient to invoke the order of detention and the factum that the petitioner had not indulged in any prejudicial activity after his being released on bail on 19-4-1989 was not considered by the detaining authority. The non-consideration of the retraction of confession in the bail application was also stressed. The ground of non-application of mind by the detaining authority was also taken.

4. The respondents in the return filed by Sh. A. K. Batabyal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Delhi challenged the maintainability of the present petition as the petitioner is still absconding and had not yet exhausted alternative remedies available to him under the COFEPOSA, i.e., making of representation before the competent authority and appearing before the Advisory Board, constituted under the Act. The decision of this Court in Cr. W.P. No. 3248 of 1989, Ramesh Kumar Gupta alias Maheshi V/s. U.O. I was relied upon in this regard. The dismissal of the earlier wr