1992 (4) TMI 255 - HC - FEMA

Summary

Issues Involved:
1. Non-consideration of retraction of statement by co-accused.
2. Non-supply of legible documents to the detenu.
3. Non-supply of customs endorsements on certain bills of entry.
4. Discrepancy between grounds of detention and affidavit.
5. Delay in executing the detention order.

Issue-wise Detailed Analysis:

1. Non-consideration of Retraction of Statement by Co-accused:
Shri Madhu Patel argued that the retraction of the statement given by Harish Shah was not considered by the Detaining Authority. The court noted that Harish Shah's statement under section 40 of the Foreign Exchange Regulation Act, 1973, did not contain any confession of involvement in a crime. The retraction letter asserted that the statement was taken under duress and that Harish Shah was not aware of Tushar Shah's activities. The court concluded that neither the statement nor the retraction could have significantly influenced the detention decision.

2. Non-supply of Legible Documents to the Detenu:
The petitioners contended that some documents were illegible. The court examined specific documents and found that translations were provided and legible. The court determined that the objections regarding legibility were not valid as the material portions were conveyed adequately. The court emphasized that the documents in question were subsidiary facts supporting the main basic fact about the transactions.

3. Non-supply of Customs Endorsements on Certain Bills of Entry:
The petitioners argued that four bills of entry did not contain customs endorsements. The court noted that transactions evidenced by these bills were separate and distinct violations. The court held that even if some grounds were invalid due to non-supply of documents, the detention order could still be sustained based on the remaining valid grounds, as per section 5-A of the COFEPOSA Act.

4. Discrepancy Between Grounds of Detention and Affidavit:
Shri Patel argued that the detention order mentioned conservation of foreign exchange, while the affidavit mentioned augmentation. The court found that augmentation and conservation of foreign exchange are related activities and that the discrepancy did not indicate non-application of mind. The court also noted that the affidavit by Roop Chand was to explain the delay, not to support the detention order.

5. Delay in Executing the Detention Order:
The petitioners contended that the delay in executing the detention order rendered the grounds stale. The court examined the timeline and found that efforts were made to arrest the detenu, who was not available at his premises. The court concluded that the delay was explained and reasonable, and that the grounds had not become stale.

Conclusion:
The court dismissed both writ petitions and confirmed the detention orders, finding no merit in the contentions raised by the petitioners.