1988 (8) TMI 284 - HC - FEMA

Issues Involved:

1. Non-presentation of vital document to the detaining authority.
2. Delay in disposal of the representation made by the detenu.
3. Delay in passing the order of detention.
4. Inquiry about the detenu availing bail.
5. Non-disclosure of alteration of bail conditions to the detaining authority.

Issue-wise Detailed Analysis:

1. Non-presentation of vital document to the detaining authority:

Mr. Karmali argued that the detenu's written bail application, which included a retraction of his earlier statement, was not presented to the detaining authority, thereby vitiating the order of detention. The detenu had retracted his statement on January 8, 1988, claiming it was made under duress. The detaining authority, however, was not aware of this retraction as the Enforcement Directorate did not receive a copy of the bail application. The detaining authority only became aware of the retraction on February 8, 1988, and by then, the detenu had reiterated his statement on January 27, 1988. The court found no reason to disbelieve the claim that the authority was unaware of the January 8 retraction and held that the failure to present this retraction did not vitiate the detention order.

2. Delay in disposal of the representation made by the detenu:

Mr. Karmali contended that the representation made by the detenu on June 16, 1988, was not disposed of expeditiously, leading to an unreasonable delay. The representation was received by the COFEPOSA Section on June 27, 1988, and comments were sought from the Directorate of Enforcement. The representation was rejected on July 19, 1988, and communicated to the detenu on July 26, 1988. The court found the explanation for the delay satisfactory, noting that the representation was held back for the Minister of State for only four or five days. The court concluded that the delay was not sufficient to invalidate the order of detention.

3. Delay in passing the order of detention:

Mr. Karmali argued that the delay of more than three months between the search of the detenu's premises on January 7, 1988, and the passing of the detention order on April 28, 1988, indicated a lack of necessity for detention. The court rejected this argument, noting that the detenu's activities were ongoing from November 1987 and involved multiple transactions. The court held that the duration of three and a half months was not excessive and that the detaining authority had sufficient material to conclude that the detenu was likely to continue his activities.

4. Inquiry about the detenu availing bail:

Mr. Karmali submitted that the detaining authority failed to ascertain whether the detenu had availed of the bail granted on January 25, 1988. The court found this submission without merit, stating that once the detenu secured bail, it was his choice whether to avail of it. The detaining authority need not inquire about the detenu's actions post-bail. The court held that the detaining authority was justified in passing the detention order, knowing that the detenu was granted bail and could resume his activities.

5. Non-disclosure of alteration of bail conditions to the detaining authority:

Mr. Karmali argued that the alteration of bail conditions on February 11, 1988, was not brought to the attention of the detaining authority. The court found this argument unconvincing, stating that the alteration of conditions, such as the detenu's attendance at the Enforcement Directorate, was irrelevant to his ability to carry out Havala transactions. The court concluded that the non-disclosure of this alteration did not affect the validity of the detention order.

Conclusion:

The court found no infirmity in the order of detention and dismissed the petition, discharging the rule.

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