TMI Blog1988 (8) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... idential and the business premises of the detenu were searched under Section 37 of the Foreign Exchange Regulation Act, 1973 on January 7, 1988. As a result of the search of the business premises, two bunches of loose sheets were seized; whereas the search of the residential premises resulted in recovery and seizure of Rs. 1,40,000/-, one note book and some loose sheets of papers. The statement of the detenu was recorded under Section 40 of the Foreign Exchange Regulation Act, 1973 on the same day and in his statement, the detenu admitted that Rs. 1,40,000/- which was seized was balance amount received from persons in India under the instructions of person abroad. The instructions were received from Abdul Hassan of Riyadh, the friend of the detenu and who was working as driver in Saudi Arabia for last two years. In October, 1987, Abdul Hassan enquired from the detenu whether payments to persons in India under instructions of Abdul Hassan can be made by the detenu on commission of Rs. 500/- per Rs. 1 lakh and the detenu agreed to the proposal. The detenu was required to explain certain documents seized from the business premises and the detenu accepted that these are the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etracted on January 8, 1988. Failure to bring this vital circumstances to the attention of the detaining authority, says Mr. Karmali, vitiates the order of detention. In answer to the petition, the detaining authority has filed return sworn on July 20, 1988 and in paragraph 9 of the return, it is claimed that the copy of the bail application dated January 8, 1988 alleging that the statement was recorded under coercion and retracting that statement was not given to the Enforcement Directorate and, therefore, it could not be placed before the detaining authority. The return further claims that the Enforcement Department was not even aware of any such retraction filed by the detenu in the Court on January 8, 1988. The return further claims that the Department received letter dated February 8, 1988 from the detenu informing that the statements recorded on January 7, 1988 stands retracted on January 8. The Department thereupon sent reply to the detenu pointing out that the claim that on January 8, 1988 the detenu retracted the statement is not correct because the detenu reiterated the statement on January 27, 1988 by addressing a letter to the Department. The return, therefore, claims t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was considered. In these circumstances, we are unable to accede to the submission of Mr. Karmali that failure to place the copy of the bail application containing retraction filed by the detenu on January 8, 1988 before the detaining authority vitiates the order. The first submission of the learned counsel, therefore, must be repelled. 3. The second contention urged by Mr. Karmali is that the representation made by the detenu to the detaining authority and the Central Government against the order of detention was not disposed of expeditiously but was delayed and for the exhorbitant delay the detaining authority has no explanation. The detenu forwarded the representation on June 16, 1988 both to the detaining authority and the Central Government and the fact of rejection of this representation by both the authorities was communicated to the detenu on July 26, 1988. The return filed by the detaining authority merely stated that the representation addressed to the detaining authority was rejected on July 19, 1988. As the return of the detaining authority was not satisfactory to explain the delay in disposal of the representation by the Central Government, we called upon Mr. Masurka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er considering the submission of the learned counsel, in our judgment, on the facts and circumstances of the present case, it is not possible to conclude that the explanation given by the Secretary to the Government of India suffers from infirmities. It is well-settled that the delay in disposal of the representation by itself is not sufficient to invalidate the order of detention, but it is necessary for the detaining authority and for the Central Government to give reasonable explanation for the delay in disposal of the representation. On perusal of the return of the detaining authority, in our judgment, the explanation offered in the present case is not unsatisfactory. It is undoubtedly true that consideration of the representation cannot be postponed merely because the Minister is not available at the Station, but in the present case, the representation was held back for the Minister only for a period of four or five days and, therefore, it would not be possible to conclude that this delay is so fatal as to invalidate the order. In our judgment, the complaint of Mr. Karmali that continuous detention is bad because of the failure to expeditiously consider the representation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will and the choice of the detenu as to whether the order should be availed of or not. The detaining authority need not enquire as to whether and when the detenu avails such an order. The detenu may avail grant of bail forthwith or on any subsequent day when it suits his convenience. Once, the detaining authority becomes aware that the detenu is ordered to be released on bail and is likely to re-start his activities, then the detaining authority would be perfectly justified in passing the order of detention. In our judgment, the question as to whether the detenu availed of the order of bail or not is entirely irrelevant. Mr. Karmali then submitted that the condition of grant of bail was altered by the Magistrate on February 11, 1988 on the application made by the detenu and the fact of alteration of the condition was not brought to the attention of the detaining authority. The condition imposed by the Magistrate while granting bail was that the detenu should attend the Office of the Enforcement Directorate every day until further order. On February 8, 1988, the detenu applied to the Magistrate and requested that as he is businessman, he finds it difficult to attend to his busine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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