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2014 Supreme(P&H) 272
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice M. Jeyapaul
Crl. W.P. No. 58 of 2014
Sat Pal Jain & Anr.
v.
Joint Secretary to the Govt. of India, (Detaining Authority) & Anr.
{Decided on 28/03/2014}
For the Respondent-UOI:Mr. Anmol Rattan Sidhu, Sr. Advocate, Asstt. Solicitor General of India, with Mr. S.S. Sandhu and Mr. Sunish Bindlish, Advocates.
Mr. Jai Narain, DAG Haryana.
Headnote:Preventive Detention--Territorial Jurisdiction--Service of detention order to be construed as part of cause of action.
Preventive Detention--Vital Documents--Question is not whether documents placed were sufficient but whether the documents not placed were such vital documents which could have any bearing on subjective satisfactions.
(A) Preventive Detention--Challenge to orders--Challenge to detention order cannot be refused to be entertained, merely because challenge was unsuccessful at pre-execution stage of detention order. (Para 23)
(B) Preventive Detention--Territorial Jurisdiction--Petitioners were compelled to surrender to detentions order before High Court, as a condition precedent for consideration of challenge to detention order--Thereafter, it cannot be said that no part of cause of action had arisen in the jurisdiction of High Court. (Para 16)
(C) Preventive Detention--Territorial Jurisdiction--Service of detention order to be construed as part of cause of action--Detention order was passed for detention in Delhi--Detention order was tried to be served at Karnal, the permanent address of petitioner--Held, Punjab & Haryana High Court has jurisdiction to entertain challenge to such detention order. (Paras 12, 13)
(D) Preventive Detention--Objection--Held, Raising an objection against settled position of law, may reflect that the purpose of detention is punitive rather than preventive. (Para 28)
(E) Preventive Detention--Vital Documents--Non placement of vital documents before the Detaining Authority for consideration before arriving at subjective satisfaction is fatal to detention order. (Para 39)
(F) Preventive Detention--Vital Documents--Contention that documents placed were sufficient for arriving at subjective satisfaction--Contention rejected--Held, Question is not whether documents placed were sufficient but whether the documents not placed were such vital documents which could have any bearing on subjective satisfactions. (Para 40)
(G) Preventive Detention--Vital Document--Detention order under COFEPOSA Act--Copy of earlier FIR against petitioner; Copy complaint by petitioner before Human Right Commission against Assistant Director, Copy of letter by Human Right Commission to ministry of finance and Criminal complaint by petitioner against officer of sponsoring Authority--All these documents were not placed before Detaining Authority--These document were relevant and vital having direct hearing on Subjective Satisfaction--Detention order guaranteed. (Para 35)
(H) Preventive Detention--Vital Document--Grounds of detention are silent who repeated request of petitioner to permit an Advocate during the investigation/interrogation were death with--Held, if detaining authority has himself perusal the said letters then they ought to have called upon the sponsoring authority to produce the FIR and further proceeding there under--Not done--Detention order quashed.
(I) Preventive Detention--Causal Approach--If the offences alleged are of a nature which can be dealt with under the ordinary laws of the land taking recourse to the preventive detention as a substitute for the ordinary punitive law would be contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution of India. (Para 43)
(J) Preventive Detention--Detention order--Offence under COFEPOSA--Orders were issued by one, Joint Secretary, COFEPOSA, as the Detaining Authority however, the court's affidavit has been by signed by another Joint Secretary without any explanation for the same--Held, When the petition alleges mala-fides, normally the affidavit in a challenge to a preventive detention order shall be filed by the same officer who was subjectively satisfied to issue the orders of detention--Such laxity in dealing with the preventive detention matters is strongly deprecated. (Para 46)
Mr. M. Jeyapaul, J:- 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.
4. Petitioners also filed a miscellaneous application, namely, CRMW- 49 of 2014 in the present petition duly supported by an affidavit wherein it has been pleaded that respondent no.1 even attempted to
