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The Customs Act, 1962
Section 7 in The Customs Act, 1962
The Right To Information Act, 2005
Section 111 in The Customs Act, 1962
Article 226 in The Constitution Of India 1949
Citedby 2 docs
Vijay Valia And Etc. vs The State Of Maharashtra And Etc. on 2 July, 1986
Maharashtra Regional Board Of ... vs Presiding Officer, Additional ... on 19 July, 2004

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Bombay High Court
Ajay Bajaj vs The State Of Maharashtra on 5 January, 2011
Bench: A.M. Khanwilkar, P. D. Kode

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 103 OF 2009

WITH

CRIMINAL APPLICATION NO. 398 OF 2010

Ajay Bajaj ] Age 36 years, an Indian inhabitant, ] residing at : A-112, Derawala Nagar, ] Opp. Model Town, Delhi 110 009 ] ...Petitioner VERSUS

1. The State of Maharashtra, ]

through the Secretary to the Government ]

of Maharashtra, Home Department (Special), ]

Mantralaya, Mumbai 400032 ]

2. Smt. Anna Dani, ] Principal Secretary (Appeals & Security), ] Government of Maharashtra, ] Home Department & Detaining Authority, ] Home Department (Special), Mantralaya, ] Mumbai 400032 ]

3. Station House Officer, ] Model Town Police Station, Delhi 110 009 ] ...Respondents WITH

CRIMINAL WRIT PETITION NO. 1645 OF 2010

Suresh D. Hotwani, ] aged 51 years ] (Friend of the Detenu Nitesh Ashok Sadarangani) ] Residing at /201, Trishul Ganga, ] Sindhi Society, Chembur, Mumbai 400 071 ] ...Petitioner VERSUS

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1. The Union of India ]

the Secretary to the Government of India, ]

Ministry of Finance, Department of Revenue, ]

Janpath Bhavan, New Delhi ]

(through Central Govt. Counsel, ]

Aaykar Bhavan Annexe, 2nd Floor, M.K. Road, ]

Mumbai 400020) ]

2. The Principal Secretary ]

(Appeals & Security) & Detaining Authority, ]

Home Department (Special), ]

Government of Maharashtra, Mantralaya, ]

Mumbai 400032 ]

3. State of Maharashtra, ]

through the Secretary (Home), ]

Home Department, Mantralaya, ]

Mumbai 400032 ]

WITH

CRIMINAL WRIT PETITION NO. 2675 OF 2010

AND

CRIMINAL APPLICATION NO. 532 OF 2010

Anil Kailash Jain ]

Age about 35 years, ]

An Indian Inhabitant, Residing at F-56, ]

Preet Vihar, New Deli 110 092 ] ...Petitioner VERSUS

1. The State of Maharashtra, ]

through the Secretary to ]

the Government of Maharashtra ]

2. The Principal Secretary to ]

the Government of Maharashtra, ]

Home Department, Mumbai ]

3. The Union of India ]

(Through officers of D.R.I.) ] ...Respondents 3 wp10309

Mrs. A.M.Z. Ansari with Mrs. Nasreen Ayubi for the Petitioners in Writ Petitions No. 103 of 2009 and 2675 of 2010

Mr. Sujay Kantawala with Mr. Brijesh Pathak i/by Mr. Yogesh Rohira for the Petitioner in Writ Petition No. 1645 of 2010 Mr. Mandar Goswami with Ms. Revati Mohite-Dere for Respondent No. 1 in Writ Petition No. 1645 of 2010

Mr. D.P. Adsule, Additional Public Prosecutor, for the State in all matters.

CORAM: A.M. KHANWILKAR AND

P.D. KODE, JJ.

DATE OF RESERVING: 20TH OCTOBER, 2010

DATE OF PRONOUNCING: 05TH JANUARY, 2011

JUDGMENT (Per A.M. Khanwilkar, J.):-

By this common judgment, we propose to dispose of all the three petitions, as the issues raised are overlapping. The same are filed under Article 226 of the Constitution of India for quashing of detention order passed against the concerned proposed detenues, before execution of the detention order qua them.

2. The question, as to whether writ petition before execution of the detention order is maintainable, is no more res integra. The leading judgment on the point is of a three-Judge Bench of the Apex Court in the 4 wp10309

case of Additional Secretary to the Government of India & Ors. v. Smt.Alka Subhash Gadia & Anr., reported in 1992 SCC (Cri) 301 = 1992 Supp (1) SCC 496. The legal position expounded in the said decision has been consistently followed in several other reported judgments. In this decision, the Apex Court has observed that the Courts have the necessary power and they have used it in proper cases, although such cases have been few and the grounds on which the Courts have interfered with the detention order at the pre-execution stage are necessarily very limited in scope and number, viz., where the Courts are, prima facie, satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against the wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so.

3. The question, whether the abovenoted five grounds adumbrated by the Apex Court in Gadia's case are illustrative or exhaustive, has also been answered by the Apex Court. That aspect has been elaborately considered as a preliminary question in Criminal Writ Petition No. 103 of 2009 along with other companion matters. This judgment is reported in 2009 (4) Mh.L.J. 647 in the case of Manish 5 wp10309

Purshottam Atmaramani v. State of Maharashtra & Ors. The Division Bench, after analysing all the relevant judgments of the Apex Court on the point, including the decision in Deepak Bajaj v. State of Maharashtra, reported in 2008 (16) SCC 14, on which strong reliance was placed by the petitioners, has held that the settled legal position is that the grounds adumbrated by a three-Judge Bench of the Supreme Court in Gadia's case were exhaustive and not illustrative. Further, the Division Bench of this Court, while answering the said issue, has noted that this Court would be bound by the opinion of the three-Judge Bench of the Supreme Court, in particular the decisions referred to therein. It chose to follow those decisions and not the dictum in the case of Deepak Bajaj (supra) or, for that matter, Rajinder Arora v. Union of India, reported in (2006) 4 SCC 796, and Maqsood Yusuf Merchant v. Union of India, reported in (2008) 16 SCC 31; as these decisions were of two-Judge Bench of the Apex Court. The Division Bench has noted that, on more than one occasion, this specific argument, that the five grounds articulated in Gadia's case were illustrative or exhaustive, has been directly answered by the Apex Court. Thus, it followed that opinion, as it was binding on it. After recording the above opinion, the Division Bench then directed to place the respective writ petitions for further hearing on merits. Insofar as the petitioner in Writ Petition No. 103 of 2009 is concerned, he has 6 wp10309

allowed the said decision to become final. In that view of the matter, the opinion so recorded would not only bind the petitioner in the said Writ Petition but even us.

4. The counsel appearing for the petitioners in companion Writ Petitions wanted us to re-consider the said question. However, we are in respectful agreement with the opinion of the Division Bench in Atmaramani's case (supra) that the exposition of the larger Benches of the Supreme Court on the point in issue would be binding on this Court. Indeed, the attempt of the petitioners was to persuade us to take the view that the latter decisions by a two-Judge Bench of the Supreme Court have considered all the earlier decisions of the Apex Court, including of larger Benches, and being subsequent in point of time, would bind this Court and ought to be followed. We would advert to the other decisions referred by the petitioners a little later. Suffice it to observe that we will have to examine whether the grievance of the petitioners before us, is covered by any of the five grounds specified in Gadia's case (supra) or the species thereof.

5. The counsel for the petitioners would contend that in each of these petitions, the common grievance is that there has been undue delay 7 wp10309

in issuance of detention order; as also in the execution thereof for considerably long time, rendering the purpose for which it has been issued either non-existent or stale. Besides, there has been non-compliance of the mandatory requirements, and the lapses so committed by the Detaining Authority has vitiated the respective detention order. It was submitted that instead of examining those issues in the present petitions, the petitioners may be allowed to make representation to the Government in terms of Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA" for the sake of brevity), which could be considered by the Government on its own merits, keeping in mind the consistent legal position expounded in the decisions of the High Courts and the Supreme Court.

6. To buttress this submission, reliance was placed on the order of the Division Bench of Delhi High Court in the case of Bhavna Mehra v. Union of India & Ors. in Writ Petition (Crl) No. 274/2009 dated 25th May, 2009. In that case, the Court permitted the petitioner to withdraw the writ petition challenging the detention order at the pre-execution stage, and, instead, make comprehensive representation to the Government. Further, the Government was directed to decide the said representation 8 wp10309

within specified time; and until the representation was finally decided, it was ordered that no coercive steps be taken against the petitioner. Strong reliance was placed on this order to persuade us to follow the same route. We are not impressed by this argument. In the first place, in the petitions before us, it is noticed that representation was made to the State Government, and the same has already been rejected. That position has been communicated to the petitioners. Besides, our attention is invited to the fact that the decision of the Delhi High Court in the case of Bhavna Mehra (supra) has been assailed by Union of India by way of Special Leave Petition (Criminal) No. 6513 of 2009, which has been admitted on 26th August, 2010 by the Apex Court. To get over this position, counsel for the petitioners contended that the rejection order communicated to the petitioners by the appropriate Government is identical to the order passed by the appropriate Government in the case of Bhavna Mehra, and the Delhi High Court frowned upon the said order as having been passed on the ground, which was not available. The Delhi High Court construed the said order to mean that it was an unsolicited advice given to the petitioner before that Court, and more so, indicative of the fact that the authority had already made up its mind to reject the same. With due respect, we do not find merits in this analogy drawn by the petitioners before us. In our opinion, the order of rejection, in our case, in clear terms, mentions that 9 wp10309

the authority has carefully considered the relevant material, and has rejected the representation. It is well-established position that the authority is not expected to give reasons for such rejection. The fact that incidentally, the authority records that the proposed detenu ought to surrender and submit to the process of law does not vitiate the satisfaction reached by the appropriate authority for rejecting the representation, more so when it is stated before us, on affidavit, that the representation was duly considered, keeping in mind all aspects, but was found to be devoid of merits.

7. Indubitably, the power to execute detention order vests in the appropriate Authority. Indeed, Section 11 of the Act provides that it is open to the appropriate Government to reject or modify the detention order "at any time". That does not mean that the appropriate Government can be directed by the Court to consider fresh representation to be made by the petitioners herein. It would inevitably result in calling upon the Government to review its earlier order.

8. Accordingly, we are not impressed with the suggestion made by the petitioners that they may be permitted to make comprehensive representation to the appropriate Government and that the same can be 10 wp10309

decided on its own merits, in accordance with law, and until such time, no coercive action be taken against the proposed detenues. Such direction, if passed, would result in restraining the authority from discharging its statutory duty or directing it to refrain from discharging its duty for a specified time. Further, the fact that there is remedy to make representation under Section 11 of the Act "at any time" does not mean that the Court would issue direction to the authority not to act against the proposed detenu, in spite of a subsisting detention order. Moreover, the fact that such representation is made by the detenu does not preclude the Detaining Authority to proceed with the execution of the detention order in operation; nor would it extricate the detenu from the consequence flowing from a subsisting detention order.

9. It was then contended that going by the admitted facts, there has been undue delay in issuance of the detention order as well as even at the stage of execution thereof. Thus, the live link between the date of detention and the alleged prejudicial activities has snapped due to passage of time. Reliance was placed on unreported decision of Delhi High Court in the case of Smt. Malini Mukesh Vora v. Union of India & Ors. decided on 3rd July, 2009 in Writ Petition (Crl) No. 37/2009. Indeed, in this case, the relief claimed in respect of detention order was at the pre- 11 wp10309

execution stage. The first preliminary issue considered by the Court was whether the Delhi High Court had territorial jurisdiction to entertain the writ petition. It then went on to consider the arguments on merits that the detention order was illegal since its inception, and in any case, it had become stale, and the link between the detention order and the object of detention has been snapped due to efflux of time. Consequently, the detention order has lost its relevance. This argument found favour with the Delhi High Court. The same has been accepted, keeping in mind the exposition in the case of Gopa Manish Vora v. Union of India & Anr., decided by the Delhi High Court on 10th February, 2009 in Writ Petition (Crl) No. 2444 of 2006, which, in turn, had placed reliance on the decision of the Apex Court in the case of Maqsood Yusuf Merchant (supra). In that case, the Delhi High Court proceeded to observe as of fact that the live link between the date of detention and the alleged prejudicial activities has been snapped by passage of time; and more so, in absence of any material on record to show that the proposed detenu has continued to indulge in such activities. Having said this, the Court then proceeded to observe that the question regarding maintainability of writ petition challenging a detention order at the pre-execution stage was intertwined with the above issue; and for that reason, it was open to the Court to entertain the writ petition, and cancel the detention order in question. 12 wp10309

10. Reverting to the decision of the Apex Court in Maqsood Yusuf Merchant (supra), indeed, it was a case of challenge to detention order at the pre-execution stage, and the Court not only entertained the writ petition, but also quashed the detention order essentially on the ground that continuing the said order would be an exercise in futility. In the first place, the said decision is on the facts of that case. Further, it is not a decision on the proposition expounded by a three-Judge Bench of the Apex Court in Gadia's case (supra). Nor it is a decision on the proposition as to whether the five grounds specified in Gadia's case were illustrative or exhaustive. Moreover, this is a decision only of a two-Judge Bench, which proceeds to answer the controversy on the basis of facts before it. In the case before the Supreme Court, the detention order was passed on 19th March, 2002, but was not executed till the filing of the writ petition. The appellant and other detenu had approached the Settlement Commissioner appointed under the Customs Act, 1962 on 13th July, 2007, and ultimately, the matter was settled by an order by the Commissioner on 11th September, 2007. The Settlement Commission, while granting immunity, took note of the fact that the requisite amount was already deposited. The Apex Court then noted the concession of the counsel for Union of India who fairly stated, on instruction, that since the order of 13 wp10309

detention was passed, the appellant had not indulged in similar activities. Primarily, on the basis of this concession, the Apex Court took the view that the continuation of the order of detention would be an exercise in futility. Therefore, while directing not to give effect to the detention order, the Apex Court made it clear that it would be open to the authorities to pass any similar orders in the event similar allegations were raised against the appellant. This decision of the Apex Court, therefore, was on the facts of that case, and cannot be invoked in support of the proposition that non-execution of the detention order by efflux of time would attract any of the five grounds specified in Gadia's case. On the other hand, there are decisions of three-Judge Bench of the Apex Court which have negatived the argument of the petitioner/detenu that delay in issuance or, for that matter, execution will attract the ground of "wrong purpose" specified in clause (iii) in Gadia's case. That decision being of a three- Judge Bench of the Supreme Court would be binding. More so, the question whether the live link has been snapped will depend on facts of each case. Thus understood, the unreported decision of the Delhi High Court in the case of Gopa Manish Vora (supra) is of no avail.

11. We may now turn to the series of authorities rejecting similar challenge to the detention order at the pre-execution stage. For that, 14 wp10309

Gadia's case is the leading decision. It is by a three-Judge Bench of the Supreme Court. The Apex Court opined that in pursuance of self- evolved judicial policy and in conformity with the self-imposed internal restrictions, the Court insists that the aggrieved persons first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court or the Supreme Court to invoke discretionary extra-ordinary and equitable jurisdiction under Articles 226 and 32 respectively. The Apex Court noted the argument advanced on behalf of the appellants (Union of India) therein. As far as the detention orders are concerned, if, in every case, a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated, since such orders are in operation only for a limited period. The Court was conscious of the cherished Fundamental Rights of the citizens, but at the same time, gave due regard to the purpose underlying the issuance of the preventive detention order. In paragraph 27, the Court observed thus:-

"The preventive detention law by its very nature has always posed a challenge before the courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. Worse still, unlike the latter, it is resorted to prevent the possible misconduct in future, though the 15 wp10309

prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people."

12. In paragraph 28, the Court observed thus:- "It must further be appreciated that the validity of the Act in question being permitted to be enacted by the Constitution, has also been upheld by this Court with all its present provisions as they stand. Howsoever repugnant the notion of preventive detention may be to the champions of individual liberty, it has also to be remembered that the power to make such a law even during peacetime has been incorporated in the Constitution by the framers of the Constitution many of whom had tasted the bitter fruits of such detention law during the struggle for freedom. Whatever may, therefore, be one's own notions about the dimensions of individual liberty, one must accept the provisions of the Constitution as enacted by the mature vision and seasoned experience of the Constitution-makers. We must also not lose sight of the fact that over the years, by and large, the judiciary has interpreted the Act and the orders made thereunder strictly so as to give to the detenu the benefit of every unexplained error of omission and commission and has either struck down the order itself or has held its further operation illegal."

13. The Court rejected the extreme argument of the respondents in that case. That, the individual has an absolute right to liberty and the burden is on the State to satisfy that it is necessary to deprive the individual of its liberty before apprising him of the ground of his detention. It held that such plea was clearly against the relevant provisions of the Constitution.

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14. In paragraph 29, it observed thus:-

"...These provisions of the Act have not been faulted on any account. In the face, therefore, of the clear provisions of the Constitution and of the valid Act, it is not open to contend that the provisions of Articles 14, 19 and 21 of the Constitution prevent a person being deprived of his liberty without first apprising him of the grounds of his arrest. For this very reason, it is also not open to contend that since the State has all the facts in its possession which require the arrest and detention of the person, it must first disclose the said facts before depriving him of his liberty. Since the provisions of Article 22 of the Constitution pointed out above and of the Act made thereunder permit the State to arrest and detain a person without first disclosing the grounds, even though they are in its possession before or at the time of his arrest, this argument is not tenable in law. It must further be remembered that though the provisions of the Constitution and the law enacted for the purpose enable the State or its delegate the detaining authority to detain a person without first disclosing the grounds of detention they do not preclude them from serving the grounds of detention on the detenu along with the order of detention. In fact very often they do so. But Shri Jain's (appearing for the respondents therein) argument goes still further and requires that the order of detention and the grounds of detention should be served on the proposed detenu in advance to enable him to challenge them in a court of law before submitting to the order. In advancing this contention, Shri Jain not only wants to secure to the proposed detenu the right to seek the judicial review of the detention order even before it is executed but also to enable him thereby to by-pass the procedure laid down by the law to challenge it after it is executed. To that extent this contention requires the Court to go a step further and to do something more than what it does or would do while entertaining grievances against orders passed under other laws. The justification advanced to claim this superior right is that under the detention law what is infringed is the liberty of the individual and no individual should be required to surrender it without a prior right to challenge the order in question. As has been elaborately discussed above, however vital and sacred the liberty of the individual, for reasons which need not be discussed over again here, the responsible framers of the Constitution although fully conscious of its implications have made a provision for making a law which 17 wp10309

may deprive an individual of his liberty without first disclosing to him the grounds of such deprivation. It is not, therefore, possible for us to accept the three contentions." (emphasis supplied)

15. Another decision is again of a three-Judge Bench of the Apex Court in the case of N.K. Bapna v. Union of India & Ors., reported in 1992 SCC (Cri) 683 = (1992) 3 SCC 512. Even this was a case of challenge to detention order at the pre-execution stage. The Single Judge of the High Court dismissed the writ petition on the short ground that on the facts disclosed in the petition, the case, prima facie, fell within the scope of expression 'smuggling' as defined in the Act. The Division Bench came to the conclusion that the circumstances referred to in the petition were not sufficient to constitute smuggling, however took the view that it will not be proper to quash detention order at the pre-execution stage. Before the Apex Court, the thrust of the argument was that the High Court having accepted the petitioner's plea that his activities do not constitute smuggling, it ought to have straightaway quashed the detention order. The Apex Court then considered the question whether the activities of the proposed detenu referred to in the detention order constituted smuggling. On analysing the relevant provisions, it negatived the petitioner's stand that it did not constitute smuggling. On this finding, the Apex Court rejected the prayer for quashing of the detention order at the 18 wp10309

pre-execution stage. While summing up, the Apex Court, in paragraph 13, observed thus:-

"The upshot of the above discussion is that, on the conspectus of facts placed before the Court and referred to earlier, the activity of the company would amount to smuggling and that of the petitioner to abetment of smuggling, if they had removed, or caused or abetted the removal of the goods from the bonded warehouse without the permission of the concerned authorities. The order of detention proposed cannot be said to proceed on a basis totally extraneous to the provisions of the Act and cannot be described as an order not made under the Act under which it is purportedly made nor can it be said that the grounds of detention are vague, irrelevant or extraneous to the purpose of provisions of the Act." (Emphasis supplied)

16. The next decision is of a two-judge Bench, in the case of Subhash Muljimal Gandhi v. L. Himingliana & Anr. , reported in (1994) 6 SCC 14. Even in this case, the challenge to the detention order was at the pre-execution stage. Significantly, Shri Justice P.B. Sawant, who had spoken for the three-judge Bench in Gadia's case was the Presiding Judge of the Bench which decided this case. A specific plea was taken that the five contingencies referred to in Gadia's case were not exhaustive but illustrative, as is noted in the opening part of paragraph 9 of the judgment. However, that contention was not accepted. Instead, in paragraphs 10 and 11, the Court observed thus:-

"10. Having given our anxious consideration to the .. contentions of Mr. Jethmalani (the learned Senior Counsel appearing in support of the appeal), we are unable to accept 19 wp10309

the same. In the passage earlier quoted from Alka Subhash Gadia, 1992 Supp (1) SCC 496: 1992 SCC (Cri) 301, this Court has expressly laid down that the interference with detention orders at pre-execution stage has to be limited in scope and number as mentioned therein. The Court has reiterated the same view as will be evident for the following further observations made in that case: (SCC p. 522, para 32) '... in the rare cases where the detenu, before

being served with them, learns of the detention

order and the grounds on which it is made, and

satisfies the Court of their existence by proper

affirmation, the Court does not decline to

entertain the writ petition even at the pre-

execution stage, of course, on the very limited

grounds stated above.' (emphasis supplied)

11. The above principles laid down in Alka Subhash Gadia have been quoted with approval by another three-Judge Bench in N.K. Bapna v. Union of India. Bound as we are by the above judgments, we must hold that the other

contingencies, if any, must be of the same species as of the five contingencies referred to therein." (emphasis supplied) Thus, it has been held that the five grounds specified in Gadia's case are exhaustive and the other contingencies must be of the same species as of the five contingencies referred to.

17. This decision is also an authority on the proposition which considers the argument of the proposed detenu that the detention order was passed "for a wrong purpose", viz., to harass and humiliate him by concocting a false case of smuggling, based primarily on a confession obtained from him after subjecting him to assault, illegal detention and extortion. The Court opined that the Detaining Authority had denied such 20 wp10309

allegations of assault and extortion. Thus, it involved disputed questions of fact, which could not be entertained, much less examined and decided upon. It further opined that even if those facts were to be proved, it would not vitiate the oder of detention. In other words, the challenge to the detention order on the said basis was negatived, as it would not fall within the scope of ground specified in Gadia's decision, "for a wrong purpose". We are highlighting this aspect, as in one of the petitions before us, somewhat similar argument has been advanced.

18. Our attention has been then invited to another decision of a two-Judge Bench of the Apex Court in the case of Union of India & Ors. v. Parasmal Rampuria, reported in 1998 SCC (Cri) 1537 = 1998 (8) SCC

402. In that case, the detention order was challenged by way of writ petition at the pre-execution stage. Initially, interim relief was granted by the Single Judge, which was later on vacated. Against that decision, the matter was taken up in appeal before the Division Bench, which not only entertained the appeal, but also granted interim relief. As a result, the detention order could not be executed on the proposed detenu. The Union of India, therefore, carried the matter before the Apex Court, which, in turn, reversed the order of the Division Bench granting interim relief during the pendency of the appeal. The Apex Court directed the 21 wp10309

petitioner to first surrender and later on to amend the writ petition to urge such grounds as may be available to him.

19. Thereafter, the Apex Court, in the case of Sayed Taher Bawamiya v. Joint Secretary to the Govt. of India & Ors., reported in (2000) 8 SCC 630, was called upon to consider challenge to the detention order at the pre-execution stage. A three-Judge Bench of the Apex Court rejected the challenge. Notably, in this case, the order of detention was passed on 29th June, 1984, and the same was not executed for over 16 years. The proposed detenu, on receipt of a notice under Section 6(1) of the SAFEMA Act on 21st October, 1986 filed writ petition before the High Court, which was, however, rejected on the ground that it did not fall within the five contingencies specified in Gadia's case. In this backdrop, question was raised as to whether the five contingencies specified in Gadia's case were exhaustive or illustrative. The three-Judge Bench unambiguously answered the said contention, and recorded its opinion that the five contingencies specified in Gadia's case were exhaustive. In paragraph 7, the Apex Court observed thus:-

"As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under 22 wp10309

Article 226 or Article 32 at the pre-execution stage. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds." (emphasis supplied)

20. In yet another decision of the Apex Court in the case of Union of India & Ors. v. Muneesh Suneja, reported in (2001) 3 SCC 92, the two-Judge Bench of the Apex Court negatived the plea of the proposed detenu. Even in this case, the detention order was passed on 9th June, 1998, which was challenged at the pre-execution stage by way of writ petition filed in 1999. The High Court, firstly, found that there has been delay in making the order of detention, and, secondly, that after making the order of detention, no effective steps had been taken to execute the same. In the appeal filed by Union of India, the two-Judge Bench of the Apex Court accepted the argument of Union of India that neither of the above two reasons stated by the High Court would fall within the ratio of Gadia's case (supra) so as to interfere, at the pre-execution stage, with the detention order. The Apex Court, in paragraph 7, observed thus:- "The present case is not for issue of any writ of habeas corpus but for certain other types of reliefs. The matter must be examined as any other ordinary writ petition would 23 wp10309

be examined. When the respondent had filed a writ petition before the High Court of Delhi and that writ petition was subsequently withdrawn, this fact should have been clearly stated in the course of the petition filed before the High Court of Punjab and Haryana. Not disclosing this factor is indeed fatal to the petition. Shri Tulsi (the learned Senior Advocate appearing for the respondent therein) submitted that this lapse on the part of the respondent should not be viewed seriously because ultimately any order that could be made by the Court would affect the liberty of a citizen which is protected under Articles 21 and 22 of the Constitution. He, therefore, very passionately pleaded that we should not proceed to dispose of the matter on that short ground. Even assuming that this non-mentioning of the proceedings before the Court was ill-advised, though not deliberate, we do find great force in the other submissions made by the learned Additional Solicitor General. This Court has been categorical that in matters of pre-detention cases interference of court is not called for except in the circumstances set forth by us earlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order, for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia and Sayed Taher Bawamiya v. Jt. Secy. to the Govt. of India, we hold that the order made by the High Court is bad in law and deserves to be set aside." (emphasis supplied) Going by the exposition in the cases of Bawamiya and Suneja (supra), the grievance regarding delay in issuance or for that matter execution of the detention is unavailable, to challenge the order at the 24 wp10309

pre-execution stage. That plea, therefore, cannot be said as one of the species of any of the five contingencies specified in Gadia's case.

21. Indeed, in the case of Suneja (supra), even while allowing the appeal of the Union of India while parting, the Apex Court noted that it is open to the Government to apply mind as to whether detention of the respondent is still necessary or not and take appropriate steps either in giving effect to the order of detention or to revoke the same. It kept all questions open, including available to the respondent-proposed detenu.

22. In another decision rendered by a two-Judge Bench of the Apex Court in the case of Hare Ram Pandey v. State of Bihar & Ors., reported in (2004) 3 SCC 289 also, the Court considered the challenge to the detention order at the pre-execution stage. In paragraph 9 of this decision, once again, the argument that the five grounds specified in Gadia's case are not exhaustive came to be rejected. The grievance of the proposed detenu in that case was that he had tried to highlight the follies of the Government machinery in ensuring free and fair elections; but, out of political vendetta, the order of detention came to be passed against him at the behest of political leaders. It was also urged that the District Magistrate had no authority under Section 12(2) of the Act to pass the 25 wp10309

order of detention. In any case, after allowing the lapse of time, the detention order had become stale, and should not be allowed to be rekindled. This challenge, however, did not find favour with the Apex Court.

23. Again, in the case of Naresh Kumar Goyal v. Union of India, reported in 2005 (8) SCC 276, the three-Judge Bench of the Apex Court considered similar challenge to the order of detention at the pre-execution stage. The case of the appellant was that he had appeared in person before the Criminal Court till 20th December, 2002, and yet, the order of detention, which was passed on 4th September, 2002, was not served on him. Besides, no process under Section 7 of the Act was issued against him, and the State of Bihar took no effective steps whatsoever to arrest him. That showed that the order of detention was passed for a purpose other than for which his detention under the Act could be justified. Even though the Apex Court was of the prima facie opinion that there has been delay in the execution of the detention order and the State of Bihar had not taken effective steps to arrest the appellant and serve the order of detention upon him, eventually, it rejected the challenge to the detention order at the pre-execution stage on the finding that it was not covered within the purview of ground "for a wrong purpose". 26 wp10309

The three-Judge Bench of the Apex Court, after analysing the legal position expounded in P.U. Iqbal v. Union of India, (1992) 1 SCC 434, Ashok Kumar v. Delhi Admn., (1982) 2 SCC 403, Bhawarlal Ganeshmalji v. State of T.N., (1979) 1 SCC 465, Parasmal Rampuria (supra), Sayed Taher Bawamiya (supra), Muneesh Suneja (supra) and the leading decision in Gadia's case (supra) eventually concluded in paragraph 14 as follows:-

"Coming to the facts of this case, at the highest, the case of the appellant is that the order of detention was belatedly passed and the State of Bihar thereafter took no steps whatsoever to implement the order of detention. Counsel for the appellant sought to bring this case under the third exception enumerated in Alka Subhash Gadia, namely, that the oder was passed for a wrong purpose. Apparently the order has been passed with a view to prevent the appellant from smuggling goods or abetting the smuggling thereof, etc. The facts of the present case are no different from the facts in Muneesh Suneja. We do not find that the case falls within any of the exceptions enumerated in Alka Subhash Gadia. The High Court was, therefore, justified in refusing to exercise jurisdiction under Article 226 of the Constitution to quash the order of detention at the pre-arrest stage. This appeal is, therefore, devoid of merit and is dismissed."

(emphasis supplied)

24. In the case of State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande, reported in (2008) 3 SCC 613, the detention order was challenged at the pre-execution stage. The High Court held that the detenu was not entitled to know the grounds on which the order of detention had been passed, unless he surrendered. However, the Judges 27 wp10309

then proceeded to peruse the Grounds of Detention themselves with a view to satisfy about the legality of the order of detention. Having done that, it concluded that the writ petition can be entertained at the pre- execution stage, as it was covered by one of the exceptions laid down in Gadia's case. Once again, the Apex Court consisting of a two-Judge Bench, reviewed the decisions on the point to eventually conclude that the grounds of challenge, as invoked by the proposed detenu did not fall within the five grounds specified in Gadia's case. In paragraphs 49 and 50, the Court observed thus:-

"49. We must concede our inability to uphold the above contention. We have been taken to (sic) the judgment of the High Court impugned in the present appeal. So far as the authority of the Commissioner of Police is concerned, the High Court was satisfied that the order was passed by the authority competent to exercise the power. It was also clear that the order was passed "under the Act" since the detaining authority was satisfied that the detention of the writ petitioner was necessary "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community" i.e. kerosene. The grounds, in our opinion, cannot be said to be vague, extraneous, irrelevant or non-existent. (In fact, the detenu absconded and grounds could not be served.) It is not even alleged that the order is sought to be executed against a wrong person.

50. According to the High Court, however, the order was passed for a "wrong purpose". It was contended before the High Court on behalf of the detenu that certain offences had been registered against the detenu and they were under investigation. The report of the chemical analyser was not received and yet the detaining authority took into account those cases."

28 wp10309

25. In paragraph 51, the Court has dealt with the further submissions that offences were registered against the detenu, and no preventive action was thought necessary to be taken by the authority at any stage. However, the need to detain was felt only after the detenu made a complaint regarding custodial violence meted out to him by the police authorities while he was in custody. Thus, the detention order was passed for a wrong purpose, and not with a view to preventing the proposed detenu from indulging in black-marketing of kerosene. This plea found favour with the High Court. The High Court observed that once the detenu had made allegations against the police assault and custodial violence, the Detaining Authority ought to have waited till the inquiry was conducted and report submitted. The Apex Court reversed the view so taken by the High Court. It, instead, relying on its earlier decisions, found that the grounds urged by the proposed detenu were not covered by the five specific grounds in Gadia's case (supra). In paragraphs 54 and 55, the Court observed thus:-

"54. Considering the facts on record in their entirety, it is clear that many cases had been filed against the detenu under the 1955 Act. It was alleged that the writ petitioner was indulging in illegal activities of blackmarketing of kerosene which was an essential commodity. Those cases had been registered in 2002, 2003, 2005 and 2006. Thus, the action was taken on the basis of past conduct of the detenu having reasonable prognosis of future behaviour and there was "live link" between the activities of the detenu and the action of preventive detention to reach subjective satisfaction by the detaining authority. It has come on record that the detenu 29 wp10309

was called upon to execute a bond for good behaviour under Sections 110 and 111 of the Code of Criminal Procedure, 1973. It is, therefore, clear that the authorities had taken steps under the relevant law. But even otherwise, in our opinion, such questions may become relevant and can be considered after the order of detention is executed.

55. Similarly, if the detenu was ill-treated when he was in custody in connection with any case registered against him under the 1955 Act, or there was custodial violence, it would not affect detention of the writ petitioner. Whether there was such custodial violence and whether police officers had abused their position can indeed be gone into by a competent authority or by a court of law. That circumstance, however, will not make the order of detention invalid or for a 'wrong purpose'. Externment proceedings initiated against the detenu under Section 59 of the Bombay Police Act, 1951 also would not make the action assailable. In our considered opinion, therefore, this was not a case in which interference was warranted at pre-execution stage." (Emphasis supplied)

26. In paragraph 56 of the same judgment, the Court noted that in Subhash Gandhi's case (supra), the question as to whether the contingencies noted in Gadia's case (supra) were exhaustive, and not illustrative, has been answered. It has noted that even in that case, the detenu was harassed, humiliated and beaten by authorities, which was the ground pressed into service for granting relief at the pre-execution stage. However, it was negatived. In paragraph 58, the Court has referred to the decision in State of Bihar v. Rambalak Singh, reported in AIR 1966 SC 1441. The decision in the case of Rajinder Arora (supra), on which strong reliance has been placed by the petitioners herein has also been noticed. The Court has opined that the said decision was on the facts of 30 wp10309

that case where the Court held that the ground urged was covered by exceptions of Gadia's case (supra) while granting relief to the proposed detenu.

27. In paragraphs 63 and 64, the Court concluded as follows:- "From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a detaining authority under the relevant 'preventive detention' law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a view to preventing' a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.

64. The case on hand, in our considered opinion, does not fall within the category of exceptional cases and the High Court committed an error of law in setting aside the order of detention at the pre-execution and pre-arrest stage. The said order, therefore, deserves to be set aside and is hereby set aside. It is open to the authorities to execute the order of detention. It is equally open to the detenu to challenge the legality thereof on all available grounds." (emphasis supplied)

28. In yet another judgment of the two-Judge Bench of the Apex Court in the case of Union of India & Ors. v. Atam Parkash 31 wp10309

and Anr., reported in (2009) 1 SCC 585, the Court rejected the contention that the detention order had become infructuous by efflux of time. In that case, the detention order was passed on 10th May, 1993, which was not enforced even till disposal of writ petition filed by the proposed detenu in the year 1999 and 19th July, 2002 till the date of the order on the writ petition. The Court, however, relying on the decisions already alluded by us, including Union of India v. Vidya Bagaria, (2004) 5 SCC 577, Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75, Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409, and Admn. of the National Capital of Delhi v. Prem Singh, 1995 Supp (4) SCC 252, concluded that the ground urged was not covered by the five contingencies specified in the decision of the Apex Court in Gadia's case (supra). It made reference to the fact that in Sayed Bawamiya (supra), the detention order could not be executed up to 16 years had lapsed, and yet, challenge to the detention order at the pre-execution stage was rejected.

29. On the one hand, we have series of decisions of Benches consisting of two judges as also three Judges of the Supreme Court, which take the view that the five contingencies specified in the judgment in Gadia's case (supra) are exhaustive. Further, the fact that there was delay 32 wp10309

in issuance of detention order or in its execution for a long time can be no ground to entertain the writ petition at the pre-execution stage. Similarly, the fact that the proposed detenu has been falsely involved, or that criminal cases are already pending are not matters which would attract the five contingencies specified in Gadia's case (supra).

30. The petitioners, however, have placed reliance on Rajinder Arora v. Union of India, reported in (2006) 4 SCC 796. In this case, the raid was conducted at the residence of the proposed detenu on 26th May, 2004 by the Directorate of Revenue Intelligence, and he was taken into custody. He was eventually released on bail on 28th July, 2004, as no complaint was filed within the statutory period of 60 days. The proposed detenu, thereafter, filed criminal complaint on 18th February, 2005, alleging that he was tortured while in custody. In the meantime, the D.R.I. forwarded proposal for detention under the provisions of the COFEPOSA Act. On 15th February, 2005, the D.R.I. opined that no case was made out for detention of the proposed detenu. A proposal was made by the authority for determination of detention of one Shital Vij, who was stated to be the brain behind the utilisation of the unlawful import. Ultimately, the detention order was issued against the proposed detenu on 31st March, 2005. The proposed detenu challenged the said detention order before the 33 wp10309

High Court. The High Court, however, rejected the petition. In appeal, the Apex Court quashed the detention order passed against the proposed detenu, inter alia, on the ground that although raid was conducted on 26th May, 2004, no prosecution was lodged against the proposed detenu by DGFT. Further, the statutory authorities did not issue any show-cause notice to the appellant for the export commitments which were not fulfilled. Besides, it was not in dispute that authorities had granted redemption certificates. The Apex Court also noticed that the status report submitted by respondent No.3 to D.R.I., Delhi, was not placed before the Detaining Authority. It also noticed that no explanation was offered as to why such a long time was taken for issuance of detention order, which aspect was not examined by the authorities. For all these reasons, the Apex Court entertained the challenge of the proposed detenu at the pre- execution stage. As mentioned earlier, in the case of Bhaurao Punjabrao Gawande (supra), the decision in Rajinder Arora has been held to be on facts of that case, where the Court opined that grounds (iii) and (iv) of the decision in Gadia's case (supra) were attracted. As mentioned earlier, this decision is by the Bench of two Judges of the Apex Court.

31. In another decision of a two-Judge Bench of the Apex Court in the case of Deepak Bajaj v. State of Maharashtra, reported in 34 wp10309

2008 (16) SCC 14, it considered the challenge to the detention order at the pre-execution stage. It quashed the order on the sole ground that relevant materials were not placed before the Detaining Authority, and that vitiates the detention order attracting grounds (iii) and (iv) of the exceptions mentioned in Gadia's case (supra). Indeed, in this decision, the Apex Court has observed that the five contingencies specified in Gadia's case were only illustrative, and not exhaustive. Insofar as the judgment of the Apex Court in the case of Maqsood Yusuf Merchant (2008) 16 SCC 31, which is, again, of a two-Judge Bench of the Apex Court, we have already noticed that the same was on the facts of that case and on the basis of concession of the Union of India that since the order of detention was passed in March, 2002, the proposed detenu had not indulged in similar activities. Therefore, continuing the order of detention would be an exercise in futility.

32. The counsel for the petitioners have also invited our attention to the order of the Apex Court in the case of Sanjeev Jain v. Union of India & Ors. in Criminal Appeal No. 1060 of 2010 dated May 12, 2010. Indeed, this is an order passed by a three-Judge Bench of the Apex Court. The same reads thus:-

35 wp10309

"Leave granted.

This appeal is directed against the judgment and final order dated 19th May, 2008, passed by the Delhi High Court in Writ Petition (Crl.) No.1093 of 2007, dismissing the same on the ground that the Writ Petition, which sought to challenge the detention order at the pre-execution stage, was not maintainable.

On behalf of the appellant herein, it has been submitted that in the case of Maqsood Yusuf Merchant, where the facts are more or less similar, being Criminal Appeal No. 1337/2008, this Court had, noting the fact that the order of detention had been passed in 2002 and had not been executed till 2008 and that there was no material to show that the appellant therein had indulged in similar activities after the detention order was passed, quashed the order of detention. The appeal was disposed of accordingly.

Mr. A.K. Ganguli, learned senior counsel, appearing for the appellant, submitted that the facts being similar, the present appeal may also be disposed of on the same grounds. We have heard both Mr. A.K. Ganguli and the learned Additional Solicitor General, Mr. P.P. Malhotra, and since the facts are similar, in that the detention order had been passed in 2003 and has not been executed till today and also that there is nothing on record to show that the appellant has indulged in similar activities after the detention order, we hold that no useful purpose would be served in keeping the detention order alive.

The Appeal is, accordingly, allowed and the detention order is quashed. We make it clear that this order is being passed in the facts of this case and will not be treated as a precedent in other cases."

Even this order is of no avail to the petitioners. It is passed on the facts of that case, while making it clear that the order will not be treated as a precedent in other cases. We are conscious of the fact that the controversy before the Apex Court in the said case was that the detention order was 36 wp10309

passed in 2003, which was not executed even till May, 2010. Further, there was nothing on record to show that the appellant had indulged in similar activities after the detention order. It was thus held that no useful purpose would be served in keeping the detention order alive.

33. Reliance is also placed on the decision of our High Court in the case of Sughrabai Sadurddin Chunara v. Union of India & Ors. reported in 2009 All MR (Cri) 3696. However, in that case, the petitoner was the mother of detenu. She had filed the writ petition primarily to challenge the notice received by her under Section 6(1) of the SAFEMA as a result of the order of detention passed against her son. Indeed, the Court, while considering her challenge, went on to quash the order of detention passed against her son, even though the same was never executed. That decision is on the facts of that case.

34. Considering the consistent view of the Apex Court of larger Bench, which is binding on us - as has been expounded in Manish Atmaramani (supra) - we may have to independently examine the grounds of challenge in the matters before us. Suffice it to observe that the consistent view of larger Bench of the Apex Court is that, even if there is delay in issuance of the detention order or its execution [as in the case of 37 wp10309

Alka Gadia (supra) of about over four years at the time of filing of Writ Petition before the High Court and around seven years when the appeal was decided by the Supreme Court; in Bapna (supra) of over one year; in Subhash Gandhi (supra) of about four years; in Parasmal Rampuria (supra) of over two and half years; in Sayed Bawamiya (supra) for almost "sixteen years"; in Muneesh Sunjea (supra) of over two and half years; in Hare Ram Pandey (supra) of over nine years; in Naresh Goyal (supra) of almost "three years"; in Bhaurao Gawande (supra) of over one and half year; and in Union of India v. Atam Parkash (supra) of over fifteen years], that is no ground to entertain challenge to the detention order at the pre-execution stage. For, that challenge is not covered within the five contingencies specified in Gadia's case (supra). In each of the abovementioned cases, including of the larger Bench of the Apex Court, the argument that live link between the date of detention and the alleged prejudicial activities had snapped and about the futility of continuing the detention order has been negated. Notably, in the present petition, the said argument has been countered by the Detaining Authority as well as the Sponsoring Authority. The said Authorities have reiterated on affidavit that mere lapse of time would not render the impugned detention orders ineffective; and it was necessary to pursue the action against the proposed detenues even now.

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35. We would now consider the grievance of the petitioners in the respective petitions.

Re: Criminal Writ Petition No. 1645 of 2010:

36. Insofar as Criminal Writ Petition No. 1645 of 2010 is concerned, this petition was filed on 7th June, 2010 to challenge the order of detention dated 12th March, 2001. The background in which the said detention order has been issued is as follows. That on 10th October, 2000, a tempo with goods of foreign origin was seized by the Customs Officer of Marine and Preventive Wing, Mumbai. It led to the detenu's godown, where a truck was found laid with huge quantity of imported goods of aggregate value at around Rs.76,28,050/-. The residential premises of the detenu were also searched on 12th October, 2000, from where the officers reportedly recovered some incriminating documents. The detenu was arrested on 12th October, 2000 and produced before the Magistrate. He was subsequently released on bail by the Magistrate, which order was, however, set aside by the High Court. Later on, the Sessions Court granted bail to the detenu on 9th November, 2000, and he came to be released on 10th November, 2000. The detention order has been passed on 12th March, 2001. The petition was originally filed by friend of the 39 wp10309

proposed detenu. However, later on, the proposed detenu has been impleaded as petitioner No.1 by way of amendment carried out on 1st September, 2010. Although several grounds have been taken in the writ petition as originally filed, however, during the arguments, emphasis was placed on grounds No. (E) and (F) thereof. After the writ petition was amended on 1st September, 2010, new grounds have been raised in the amended writ petition. Amongst the said new grounds, during the course of arguments, emphasis was placed only on grounds No. (A1) (iv) to (vi).

37. Grounds (E) and (F) of the original petition read thus:- "BECAUSE there was a considerable delay even in issuance of the impugned Detention Order. Whereas the detenu was arrested after seizure of the goods on 12.10.2000, the impugned Order of detention was issued only on 12.03.2001 i.e. after a considerable delay of about 5 months from the date of his arrest. This delay in issuance of the detention order is also fatal to the impugned detention Order, as the same snaps the live link between the date of detention and the alleged prejudicial activity. The Hon'ble Supreme Court in a catena of decisions has held that unexplained delay in detention vitiates the Detention Order and quashed and set aside numerous Detention Orders solely on this ground.

(F) BECASUE considerable delay in issuance of impugned detention order, and thereafter enormous delay in execution of the Detention Order, in the facts and circumstances of the instant case, throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the Detaining Authority in passing the Detention Order and consequently renders the Detention Order bad and invalid. In this background, it would not be just, fair and reasonable to incarcerate the detenu by detaining him now, purportedly under COFEPOSA Act, 1974." (emphasis supplied) 40 wp10309

38. Amended grounds (A1) (iv) to (vi) of the amended petition read thus:-

"(iv) The object and purpose of a Detention Order under COFEPOSA Act is only 'preventive' not 'punitive'. For this 'preventive' purpose of invoking the provisions of COFEPOSA Act, 1974, it is enough to have that much basic material which will be sufficient for any reasonable mind to be satisfied about the role and involvement of any person in the prejudicial activities from which he is required to be prevented. The delay in issuing detention order would make the purpose 'punitive' rather than 'preventive', and the grounds / incidents leading to issuance of the Detention Order would become irrelevant, non-existent and extraneous as the delay in issuance would snap the live link between the date of incident and the issuance of detention order.

"(v) The guidelines issued by the Govt. of India (at Exh. 'C-2' (Colly) supra) emphasize on this purpose and directs the Sponsoring / Detaining Authorities, to take immediate steps. These guidelines mandate interalia sponsoring proposal within a period of fifteen days from completion of such investigation generating sufficient core materials for the purpose of COFEPOSA Act, and emphasize that as important as the expeditious passing of Detention Order is the need for prompt service of the same because where there is any undue and unexplained delay, the same goes against the very object and purpose of issuing the Detention Order. It directs the Sponsoring and Executing authorities to send the details of efforts made by them to execute the Detention Order every fifteen days to the Detaining Authority concerned from the date of issue of the Detention Order. The guidelines further require action under 7(1)(b) to be taken immediately on expiry of one month from the date of Detention Order in case it remains unexecuted during that period. Similarly, after issue of the notification in the official Gazette as required under Section 7(1)(b), it requires action under Section 7(1)(a) to be taken forthwith after expiry of one month from the date of order under Section 7(1)(b). In these guidelines, any slackness in the same is admitted by Govt. of India as detrimental to the very object and purpose of issuing the detention order. (vi) The said instructions issued by Govt. of India have not been followed in its letter and spirit by the Respondents, and the impugned Detention Order had been passed for 'punitive' purpose, on stale, extraneous, irrelevant grounds. There has been inexplicable delay at every stage by the Respondents and hence the instant petition is maintainable for quashing and setting aside the impugned Detention Order at its pre-execution stage." 41 wp10309

39. The thrust of the above grounds is essentially on delay in issuance of detention order and also on the execution thereof. Even during the course of arguments, emphasis was placed on the fact that although the tempo was seized on 10th October, 2000, and soon thereafter, there was search and seizure from the godown and residential premises of the detenu. The detention order was issued only on 12th March, 2001. Further, the same has not been executed till date. We have elaborately considered this aspect in the earlier part of this judgment. As noticed earlier, the consistent view of the Apex Court and of the larger Benches of the Apex Court is that the ground of delay in issuing of detention order or delay in execution of the detention order is not covered by the five contingencies specified in Gadia's case (supra). For that reason, this petition ought to fail, as the ground of delay either in issuance or execution of detention order cannot be looked into at the pre-execution stage.

40. We may, however, mention that five separate affidavits have been filed by the Detaining Authority, Executing Authority and Sponsoring Authority as well as of the authority who rejected the representation preferred on behalf of the proposed detenu by his father. However, we do not wish to dilate on that aspect, having held that the 42 wp10309

ground of delay in issuance and delay in execution of the detention order is not covered by the five contingencies specified in Gadia's case (supra).

41. Incidental to the said grievance is the argument that the detention order has become stale, non-existing and irrelevant. Even the said grievance will have to be stated to be rejected. Insofar as the argument that live link has been snapped, and that there is no report to indicate that the proposed detenu had, in fact, indulged in any prejudicial activities since 2001 is concerned, the same has been countered by the respondents by filing affidavits of the competent officers, who have stated that consistent efforts were made to arrest the proposed detenu, but he succeeded in absconding. As a result, the authorities were required to take action under Section 7(1)(b) and 7(1)(a) of the COFEPOSA Act against the proposed detenu. In spite of that action having been taken as far back as in September, 2001, the proposed detenu could not be traced and arrested. We find force in the stand taken by the respondents that the fact that the proposed detenu had successfully evaded arrest would strengthen the inference that he did so, as he continued to indulge in prejudicial activities.

43 wp10309

42. Reliance has been justly placed on the dictum of the Division Bench of the High Court in the case of Kasim Kadar Kunhi v. State of Maharashtra & Ors., reported in 2005 All MR (Cri) 1468: "8. ...Obviously, once the action under Section 7(1)(b) (of the COFEPOSA Act) is initiated, the burden will lie upon the detenu to establish that it was not possible for him to comply with the direction issued under the said provisions of law for his appearance. Once it is the case of the detenu himself that a notice by the advocate of the detenu was issued to authorities complaining about the non- receipt of the show cause notice under Section 124 of the Customs Act and there being presumption about the knowledge to the detenu of the detention order in view of direction under Section 7(1)(b) having been published in Official Gazette, it was necessary for the detenu himself to disclose the reason for not being possible for him to appear before the authority and his whereabouts and having failed to do so, the detenu cannot take benefit of his own wrong."

43. We may usefully refer to another decision of our High Court in the case of Musthafa Ahamed Dossa v. The Joint Secretary, GOI, & Ors. reported in 2005 All MR (Cri) 1201. The Court observed in paragraphs 26 and 27 thus:-

"26. In this behalf it will be necessary to refer to the view taken by the Division Bench of this Court, in the decision reported in 1998(2) Mh.L.J. 496 (Rafiq Abdul Karim v. Rajendra Singh). In the said decision the issue before the Division Bench was regarding the effect of delay of more than seven months in issuing the order of detention. The question before the Division Bench was that on account of delay of more than seven months in issuance of detention order whether the live link between the prejudicial activities of the detenu and rationale of clamping a detention order on him did not get snapped so as to vitiate the order of detention. After considering the decision of the Apex Court in the case of Hemlata reported in 1981(4) SCC 647, Division Bench held that in case of preventive detention under COFEPOSA or PITNDPS even unexplained delay in issuance of detention order by itself would not vitiate the same. The Division Bench held that in such a case the order of detention will be vitiated only if on account of delay, the live link between the prejudicial activities of the detenu and rationale of clamping a detention order is snapped. The Division Bench also held that while dealing with the preventive detention under COFEPOSA question of delay in issuing the detention order cannot be approached with same sensitivity and strictness as in case of detention order under the National Security Act. In paragraph Nos. 10-A and 11 of the Judgment Division Bench held as under:

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'10-A. But in a case of preventive detention under the COFEPOSA or PITNDPS even unexplained delay in the

issuance of the detention order, by itself would not vitiate the same. In such cases it will only be vitiated if on account of delay the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped.

For determining whether such a live link has been severed or not, the propensity and potentiality of the detenu to commit prejudicial activities would be very material. If there is no material to indicate that the detenu had propensity and potentiality to commit them, unexplained delay simpliciter in the issuance of the detention order would be fatal and the same would be vitiated because the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would be snapped.

On the converse if there is material to show that the propensity and potentiality of the detenu to commit prejudicial activities was there then despite the unexplained delay in the issuance of the detention order the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would not be lost and the detention order would not be vitiated.

11. We wish to emphasise the question of delay in issuing a detention order cannot be approached with the same sensitivity and strictness in case of a preventive detention under the COFEPOSA or PITNDPS, as in a case under the National Security Act. A wider margin has to be given to the authorities in cases under the COFEPOSA and PITNDPS. (Emphasis supplied)'

27. We are of the view that in the facts of this case there is no reason why the same principles should not govern a case where the issue is regarding delay in execution of order of detention passed under COFEPOSA. In our view in case of preventive detention under COFEPOSA, even unexplained delay in issuance of detention order by itself will not vitiate the order. Only in case where on account of delay, the live-link between the prejudicial activities of the detenu and the necessity of clamping the detention order on him is snapped, the delay will vitiate the order. If there is material to show that propensity and potentiality of the detenu to commit prejudicial activities was there even on the date of execution of the order then despite the unexplained delay in issuance of detention order the live-link between the prejudicial activities of the detenu and rationale of clamping the order of detention will not be lost. In the Affidavit-in-reply of the Respondent No.1, it is stated that while in Dubai also the Petitioner continued his prejudicial activities." (emphasis supplied) 45 wp10309

44. In the context of the plea taken by the respondents that they were forced to take recourse to action under Section 7(1)(b) and 7(1)(a) of the Act to secure the arrest of the proposed detenu, it was argued that steps taken by the authorities were not consistent with the guidelines / instructions issued from time to time by the Government of India, amongst others, dated 12th July, 2001 and 21st July, 2001. To buttress this argument, reliance is placed on the decisions in the cases of Paper Products Ltd. v. Comm. of Central Excise, reported in 1999 (112) ELT 765 (SC) and Sunflag Iron & Steel Co. Ltd. v. Addl. Collector of C. Ex., reported in 2003 (162) ELT 105 (Bom). The fact that the authority intends to take contemporaneous action under Section 7(1)(b) and 7(1)(a) together or one followed by the other; and which action should precede the other, need not detain us to examine in the present petition. Even if it was to be held that the sequence in which action under Section 7(1)(a) and 7(1)(b), as taken by the authorities, is improper, that would not take the matter any further. Inasmuch as, that ground will not be covered by any of the five contingencies specified in Gadia's case (supra).

45. Suffice it to observe that even the argument that the live link has snapped and more so because no prejudicial activity has been recorded against the proposed detenu since 2001 also does not take the matter any 46 wp10309

further for more than one reason. Firstly, because that ground is not covered within the five contingencies specified in Gadia's case or for that matter species thereof. For, even if that argument was to be accepted, it would not result in a finding that the detention order was passed for a wrong purpose or not passed under the Act under which it is purported to have been passed; nor it will be possible to hold that it is passed against the wrong person and was founded on vague, extraneous and irrelevant grounds. Similarly, it would not be possible to take the view that the authority, which passed the detention order, had no authority to do so. Those are the only tests to be applied to consider the challenge at the pre- execution stage. As is noticed in paragraph 33 above, in the case of Sayed Bawamiya (supra), sixteen years had elapsed from the passing of the detention order. Similarly, in the case of Atam Parkash (supra), over fifteen years had rolled by after the issuance of the detention order. The three-Judge Bench of the Apex Court has held that the said grievance or ground is not covered by the five contingencies specified in Gadia's case. Further, the affidavits filed before us by the competent officers have countered the claim of the proposed detenu that the live link is snapped or that the proposed detenu has not indulged in any prejudicial activity for a long time. Accordingly, the argument under consideration cannot hold 47 wp10309

good, not being covered by the five contingencies specified in Gadia's case.

46. In this case, the petitioner has asserted that the copy of the detention order as well as the Grounds of Detention have been procured from the concerned authority under the provisions of the Right to Information Act, 2005. The fact that the documents were so issued to the petitioner is not in dispute. However, we are at a loss to know as to how the documents, such as proposed detention order and the Grounds of Detention, which are intended to be served on the detenu at the time of his arrest, can be made available under the provisions of the Right to Information Act. Assuming that the documents would be covered by the definition of 'information' predicated in Section 2(f) of the Right to Information Act, even then, it would be exempted from disclosure within the meaning of Section 8(1)(h) of the Act. As a matter of fact, going by the definition of 'information' under Section 2(f), it is doubtful as to whether it would take within its fold an order of detention or the grounds in support of such order. Even otherwise, it is obvious that disclosure of such detention order or the grounds in support thereof would impede the process of apprehension of the proposed detenu, as also of taking the 48 wp10309

detention order to its logical end by executing the same, while arresting the proposed detenu.

47. Counsel for the petitioners relied on Section 22 of the Right to Information Act, 2005. However, Section 22 cannot be read in isolation; and more so, when Section 8, which provides for exemptions, has a non-obstante clause. On account of the said non-obstante clause and the exemption provided in terms of Section 8(1)(h), it is not obligatory on the authority to disclose the detention order and the grounds in support thereof before the arrest of the proposed detenu. However, we do not want to examine this question any further, as we were informed, during the arguments, that necessary instructions are being issued after examining the legal position.

48. In view of the above discussion, we have no hesitation in taking the view that Criminal Writ Petition No. 1645 of 2010 is devoid of merits, and the grievance made therein cannot be entertained at the pre- execution stage. Accordingly, the said Writ Petition ought to fail. Re: Criminal Writ Petition No. 103 of 2009:

49. We may now turn to Criminal Writ Petition No. 103 of 2009. 49 wp10309

This petition is filed to challenge the detention order dated 11th February, 2008 issued against the petitioner under the provisions of the COFEPOSA Act with a view to prevent him in future from smuggling goods. Even in this petition, the challenge is at the pre-execution stage. The detention order has been issued by the appropriate authority consequent to the seizure of large quantity of stocks. The residential premises of the petitioner were searched on 4th May, 2006. The petitioner was arrested on 5th May, 2006. After his arrest, the godown premises of the petitioner were searched, but nothing incriminating was found. The petitioner was eventually released on bail on 29th May, 2006. He continued to appear before the D.R.I. even thereafter.

50. It is the case of the petitioner that on 28th July, 2006, he was compelled to sign some pre-typed documents, which happened to be his own statement. On realising his folly, the petitioner requested the authority to supply copy of his statement recorded on 28th July, 2006, as also of his son dated 21st July, 2006. According to the petitioner, he has been falsely implicated, and had no connection with the unlawful activity in question. Nevertheless, the Sponsoring Authority forwarded proposal to issue detention order against the petitioner, as also his son and 11 other persons, in connection with the alleged unlawful activity. That proposal 50 wp10309

was forwarded on 14th December, 2006. No decision could be taken on the said proposal until the new Detaining Authority took over the office on 10th April, 2007. It is the case of the petitioner that the file was placed before the Detaining Authority along with the other files of the co- accused; and even though the Grounds of Detention were not made ready, the Detaining Authority ordered issuance of detention order against the petitioner and the co-detenues. Moreover, it is the case of the petitioner that the proposals of all the co-detenues - in all 13 in number - were placed before the Detaining Authority; and on the same day, i.e., on 30th April, 2007, she formed her subjective satisfaction to issue detention order against all of them. According to the petitioner, it is incomprehensible that documents running into several hundred pages could be waded through by the Detaining Authority in such a short time. It is, therefore, averred that the detention order is illegal, void ab initio, arbitrary and mala fide for which reason, it should be quashed and set aside.

51. It is further asserted that the petitioner's son, who came to be arrested pursuant to detention order dated 11th February, 2008, had questioned the said detention order by way of Criminal Writ Petition No. 678 of 2008, which has been allowed by this Court on 13th August, 2008. This Court has accepted the grievance of the petitioner's son that even 51 wp10309

though the file comprised document running into 7,419 pages, the Detaining Authority recorded her subjective satisfaction for issuance of detention order against him on the same day. The grievance of the petitioner's son was that the decision was pre-determined. That challenge has been accepted by this Court, especially because the Grounds of Detention were admittedly formulated after 30th April, 2007. According to the petitioner, for the same reason, the petitioner ought to succeed, and it would be futile to ask the petitioner to first surrender and then challenge the detention order, which order, on the face of it, is untenable. This is the principal argument canvassed before us, even though several other contentions have been raised in the writ petition. In the writ petition, it is also averred that the petitioner is not involved in any prejudicial activities since the year 2006, and is not engaged in import business. In other words, the live link has been snapped. Besides, there has been delay in issuance and execution of the detention order under challenge.

52. During the course of the arguments, counsel for the petitioner placed emphasis on grounds IV to VIII, which, according to her, were covered by the five contingencies specified in the decision of the Apex Court in Gadia's case (supra). The said grounds read thus:- 52 wp10309

"IV. For that the instant order of detention dated 11.02.2008 issued against the petitioner is wholly illegal and void ab initio, inasmuch as the detaining authority decided to detain the petitioner on 30th April 2007 along with his son Shri Amit Bajaj against whom separate orders were passed. At that point of time the grounds of detention were not in existence, and as such, the detaining authority could not have possibly applied her mind to the facts ad circumstances of the instant case and the documents and materials in the records. In the circumstances, the order of detention passed against the detenu is bad in law and deserves to be set aside and/or quashed by this Hon'ble Court at its pre-execution stage. v. For that the case of the petitioner and his son Shri Amit Bajaj were considered by the detaining authority at the same time simultaneously on 30th April 2007 and it was decided by her to detain the petitioner and his son on the same day at the same time. The petitioner's son was detained in pursuance of an order of detention issued against him dated 11.02.2008. The habeas corpus application filed on behalf of the petitioner's son Shri Amit Bajaj by the petitioner's youngest son Shri Anuj Bajaj being Cri. W.P. No. 678 of 2008 was ultimately heard by this Hon'ble Court and after hearing the learned Counsel appearing for the parties this Hon'ble Court by its judgment dated 13th August 2008 was pleased to hold that the decision to detain the detenu was taken on 30th April 2007 itself. At that point of time the grounds were not in existence. This Hon'ble Court had been further pleased to hold that the time taken to consider the documents which were comprising of 7419 pages was not a sufficient time for considering the said documents comprised in 7419 pages. This Hon'ble Court was further pleased to hold that "the process of framing the grounds of detention started after the order had been passed for issuing the detention order - which amounts to placing the carts before the horse. If there are grounds of detention available to the detaining authority, then he can apply his mind and examine whether the detenu has to be detained or not, but once the detaining authority first decides to detain a person, and then manufactures the grounds of detention, that cannot be permitted. Even in the affidavit it has been admitted that the grounds of detention were framed after 30th April 2007 and on 30th April 2007, the order with respect to issuance of detention order had already been passed." This Hon'ble Court was accordingly pleased to quash the order of detention issued against the petitioner's son. The petitioner states that his case was also considered at the same time by the detaining authority on 30th April 2007 and the decision to detain him was also taken along with the 53 wp10309

decision to detain the petitioner's son Shri Amit Bajaj. Admittedly at that time the grounds of detention were not in existence but were framed after 30th April 2007. In the circumstances, the said order of detention issued against the petitioner too is bad in law and deserves to be quashed and/or set aside by this Hon'ble Court at its pre-execution stage. VI. For that since the inception of the investigation in the instant case on 29th March 2006 till the passing of the order of detention and even thereafter till today, the petitioner has not been carrying on his business of importing any goods from abroad. Besides, the petitioner has not been found involved in any other case violating the provisions of the Customs Act or for that matter any other law of the land. In fact the petitioner has not come to the adverse notice of the department and no other case has been registered against him except the case in respect of which the present order of detention has been passed. As the petitioner from March 2006 till 11th February 2008 was not found indulging in any prejudicial activities there was no need to pass an order of detention against the petitioner with a view to preventing him in future from smuggling goods. In this context it is pertinent to state that the petitioner was arrested by the officers of Customs on 5th May 2006 and was granted bail by the Hon'ble High Court of Delhi on 29th May 2006. After 29th May 2006, the petitioner is a free person and has not been found indulging in any prejudicial activities thereafter. In the circumstances, continuance of the order of detention against the petitioner would be an exercise of futility, and as such, the said order of detention is liable to be quashed by this Hon'ble Court sitting in writ jurisdiction. The petitioner states that in Maqsood Yusuf Merchant v. Union of India & Anr. being Cri. Appeal No. 1337 of 2008 decided on 22.08.2008 by the Hon'ble Supreme Court of India, it was held that 'the activities of the accused who was said to have indulged in unlawful activities were of the year as far back as 2002, and thereafter the appellant had not indulged in similar activities. Hence it was held that continuing the order of detention today would be an exercise of futility and the same should not be given effect to any further.' Similarly in Alpesh Navinchandra Shah v. State of Maharashtra & Ors. (2007) 2 SCC 777, Their Lordships of the Apex Court were pleased to hold that the continuation of the order of detention was not warranted. Both the said cases are pre-detention matters. In view of the decisions of Their Lordships of the Supreme Court, the petitioner most humbly beseeches this Hon'ble Court to kindly consider his case in the lights of the facts stated hereinbefore, particularly the fact that since the inception of this case on 54 wp10309

29th March 2006, the petitioner has not been found indulging in any prejudicial activities and no further case has been registered against him of violation of the Customs Act, and as such,it is expedient in the name and interest of justice, equity and fair play in action that the order of detention passed against the petitioner dated 11.02.2008 be set aside and/or quashed by this Hon'ble Court.

VII. For that there is no proximity and/or live link between the alleged prejudicial activities and the purpose of detention of the petitioner at this stage, inasmuch as the petitioner has not been found involved in indulging in any prejudicial activities after the registration of a case against him on 29th March 2006.

VIII. For that there is a long and inordinate delay between the date of registration of the case against the petitioner and the passing of the order of detention against him. In the instant case, investigation was started by the officers of DRI on 29th March 2006 and after completion of all investigation, proposals for detention of the petitioner as well as others was sent to the detaining authority admittedly on 14th December 2006 whereas the instant order of detention was passed on 11th February 2008. During the intervening period and even thereafter neither any fresh case took place against the petitioner nor was he found indulging in any prejudicial activities. In the premises, there is no proximity and/or live link between the alleged prejudicial activities of the petitioner and the purpose of detention. This delay in passing the order of detention clearly demonstrates that the satisfaction allegedly arrived at by the detaining authority was neither real nor genuine. In Rajinder Arora v. Union of India & Ors. (2006) 4 SCC 796, delay of 9 months in passing the order of detention was held to be fatal to the same and on the said ground the said order of detention at its pre-execution stage was quashed by the Hon'ble Apex Court. It was further held by the Hon'ble Apex Court that delay in passing the order of detention comes within grounds (3) and (4) of the five way test laid down in Smt. Alka Subhash Gadia's case (supra). This Hon'ble Court in respect of another detenu against whom orders of detention were passed in the same case viz., Salim Durrani was pleased to quash the said order of detention on the ground of delay in passing the same." (emphasis supplied) 55 wp10309

53. The argument regarding delay in issuance of detention order and the execution of detention order, as also about the live link having been snapped is already considered elaborately while examining the said plea in the earlier case. For the same reasons, the said contention will have to be rejected.

54. The only question that remains to be considered is: Whether the decision of this Court in Criminal Writ Petition No. 678 of 2008 dated August 13, 2008 in the case of the petitioner's son, Amit Bajaj, can be the basis to quash the detention order against the petitioner herein at the pre-execution stage? In other words, the question is: Whether the reasons for which the detention order against the petitioner's son, who was the co- detenu, has been quashed, would be available to the petitioner even at the pre-execution stage? Indeed, the petitioner would contend that the said grounds would be covered by Contingency Nos. (iii) and (iv) provided in Gadia's case. Contingency No. (iii) is about the detention order passed for wrong purpose and Contingency No. (iv) is detention order passed was on vague, extraneous or irrelevant ground. As has been observed in the earlier part of this judgment, the five contingencies specified in Gadia's case are exhaustive. At best, the Court can consider the argument which would be species of the said contingencies. If so, the question is: 56 wp10309

Whether the reason recorded by the Division Bench in the case of the petitioner's son can be of any avail to the petitioner?

55. As aforesaid, contingency No. (iii) in Gadia's case is attracted when detention order is passed for a wrong purpose. Even if the reasons recorded by the Division Bench of our High Court in the case of the petitioner's son were to be taken as they are, it cannot be said that the detention order has been passed against the petitioner for a wrong purpose as such. The Detaining Authority and the Sponsoring Authority have placed on record that there was need to issue detention order against the petitioner to prevent him from indulging in prejudicial activity in future. Notably, the petitioner's wife made representation to the Government on 30th September, 2008 to consider the case of the petitioner, only after the judgment in the case of the petitioner's son, Amit Bajaj, was rendered on 13th August, 2008. The grievance made before us was obviously pursued before the appropriate authority, to which representation was made. That has been duly considered and rejected on 20th December, 2008, which fact has been intimated to the petitioner. Suffice it to observe that the reasons recorded in the case of the petitioner's son for quashing the detention against him will not be covered by Contingency No. (iii) of the decision in Gadia's case.

57 wp10309

56. Turning to Contingency No. (iv), that can be invoked only when the detention order is passed on vague, extraneous and irrelevant grounds. The reason weighed with the Division Bench, while deciding the case of the petitioner's son, is that, the Detaining Authority could not have waded through the documents comprising of 7,419 pages in such a short time. Moreover, the Grounds of Detention were not ready when the subjective satisfaction to detain the petitioner's son, co-detenu, was recorded on 30th April, 2007. The same were formulated subsequently. That presupposes that the subjective satisfaction of the Detaining Authority was pre-decided and also suffers from non-application of mind.

57. Even in the present case, the grievance of the petitioner is that the Detaining Authority claims to have waded through voluminous documents comprising of over 7000 pages in such a short time, as was the case of petitioner's son. Similarly, the Grounds of Detention were not formulated before the subjective satisfaction to detain the petitioner was recorded. The same were formulated subsequently. Indeed, the respondents have asserted that this grievance is not covered by any of the contingencies specified in Gadia's case. At the same time, the respondents have denied the correctness of the grievance made by the petitioner. 58 wp10309

Therefore, to re-assure ourselves about the correctness of the stand taken by the respondents, we called upon them to produce the original record.

58. In the first place, the question is: Whether the stated grievance of the petitioner would be covered by Contingency No. (iv)? The petitioner has contended that the infirmities noticed in the case of petitioner's son, which are applicable on all fours even to the case of the petitioner, have rendered the detention order bad for non-application of mind and being product of pre-determined opinion formed by the Detaining Authority.

59. Indubitably, the Detaining Authority is expected to record his/her subjective satisfaction after due caution and scrutiny of the entire record placed before him/her. When the record is voluminous, it is unfathomable that the Detaining Authority can wade through the entire record in a short time, nay, record time of one day. Further, the grounds on which the Detaining Authority records its subjective satisfaction must be formulated beforehand. In absence thereof, it would not only be a case of non-application of mind, but also reflect on the casual approach of the Detaining Authority bordering on extraneous considerations. Therefore, the subjective satisfaction arrived by the Detaining Authority would be 59 wp10309

nothing short of one of the species of contingency (iv), i.e., detention order founded on extraneous or irrelevant ground.

60. As aforesaid, to re-assure ourselves, we have gone through the original file/record produced by the respondents. We have noticed that the grievance of the petitioner that the Detaining Authority recorded her subjective satisfaction in record time of one day, notwithstanding the voluminous documents placed before her for consideration; and more so, even the Grounds of Detention were not formulated before recording the subjective satisfaction, whereas the same were formulated subsequently. This grievance of the petitioner is well-founded. This is fatal and would persuade us to take the view that the challenge to detention order so passed by the Detaining Authority is covered by contingency No. (iv) specified in Gadia's case. For, it would be one of the species of order founded on extraneous or irrelevant ground. Taking any other view would be nothing but travesty of justice. After the execution of such infirm and invalid detention order, if it were to be challenged by the petitioner on the self- same ground which has already found favour with this Court while examining the challenge put forth by the petitioner's son, the same would not stand the test of judicial scrutiny at all. For that reason, the Court, exercising Writ Jurisdiction, cannot lightly overlook the ground pressed 60 wp10309

into service by the petitioner, especially when it is going to affect his life and liberty guaranteed to him under Part III of the Constitution.

61. Per contra, the respondents would contend that each detention order will have to be tested on its own merits and particularly when the record indicates that separate detention orders were passed on different dates, albeit in all 13 proposals of co-detenues were under consideration. Further, it is not open to the Court to look into the grounds of detention or even the original record to answer this controversy at the pre-execution stage. We are conscious of the fact that the petitioner in this case is relying on the grounds of detention (Exh. 'B' to the petition) in support of the detention order passed against his son, Amit Bajaj. However, it is the specific case of the petitioner that the factual aspects in his case are identical, and more so, the ground of challenge is that even in his case, documents were running into 7419 pages and that the subjective satisfaction was recorded by the Detaining Authority in record time of one day that, too, without formulation of the grounds for detention beforehand. The reply-affidavit does not counter that plea in so many words. Besides, grievance is fortified from the original record, which was placed before us. In other words, for considering the said grievance, the fact that separate files or proposals of each of the co-detenues (in all, 13 proposals) was put 61 wp10309

up will make no difference. The other objection that the Court cannot look into the original record to answer the controversy also does not commend to us. For, the original file/record was ordered to be produced to reassure ourselves that the challenge to the detention order at the pre- execution stage on the ground that the order as passed is on vague, extraneous and irrelevant ground, which has been recognised as one of the contingencies [i.e., No. (iv)] in Gadia's case, is correct. In other words, it has been found that the assertion of the petitioner that the detention order was passed on extraneous or on irrelevant grounds has been substantiated.

62. Accordingly, we hold that the challenge in this petition is covered by Contingency No. (iv) of the decision in Gadia's case.

63. During the pendency of this petition, Criminal Application No. 398 of 2010 has been filed to bring on record certain facts. According to the petitioner, the main culprit was Arun Gupta and Umesh Nanda. The petitioner was unconnected with the said activity. According to the petitioner, the prosecution has virtually accepted that the petitioner was not involved in import as such. In view of the above, we need not dilate on this controversy.

62 wp10309

Re: Criminal Writ Petition No. 2675 of 2010:

64. That takes us to Criminal Writ Petition No. 2675 of 2010. This petition is filed to challenge the detention order dated 13th December, 2007 passed against the petitioner under the provisions of the COFEPOSA Act so as to prevent him from indulging in further prejudicial activities. Even in this petition, the grounds agitated are identical to the ones already considered in the companion matters. The petitioner asserts that he is entitled to challenge the detention order at the pre-execution stage, as his case is covered by Contingencies No. (iii) and (iv) of the decision in Gadia's case. The only ground pressed before us amongst the grounds averred in the writ petition is ground No. (viii), which reads thus:- "The Petitioner says and submits that the detaining authority has considered the retraction of the petitioner dtd. 13/4/2006 (a document at Sr. No. 82 at pages 4200 - 4215). The Petitioner says and submits that in his retraction dtd. 13/4/2006, it has been stated by the petitioner that the statements are obtained by adopting third degree forceful measures so much so that the said statement was made under injured conditions and painful conditions. The DRI officers never got any proper MLC before but the fact that he reported this matter to this Hon'ble Court and their (sic) at the jail supported by his hospitalization in jail is sufficient proof to support the claim of the applicant.

The petitioner says and submits that the said Jail Hospital record shows that the petitioner was beaten up and having pain in abdomen, left hand, lower back, buttock, legs and soles. Hereto annexed and marked as Annexure 'G' is the copy of the MLC papers of the said Jail Hospital. The petitioner says and submits that it was incumbent upon the sponsoring authority to have been placed before the detaining authority, the said document which was document of vital 63 wp10309

nature as it was likely to influence the mind of the detaining authority one way or other and it was not only equally incumbent upon the detaining authority to have considered the said document in depth before arriving at her subjective satisfaction. The petitioner says and submits that non- consideration of vital document by the detaining authority has impaired the subjective satisfaction arrived at by the detaining authority as sham and unreal. The impugned order of detention based on such subjective satisfaction is, thus, mala fide, null and void." (emphasis supplied) The grievance in this ground is that the authority has forcibly taken statement from the petitioner. Further, non-consideration of the medical papers disclosing the injuries suffered by the petitioner by the Detaining Authority has affected the subjective satisfaction of the Detaining Authority. Similar grievance was made in the case of Gawande (supra), which, however, has been rejected, and the Court has held that the fact that there was custodial violence meted out to the petitioner by police authorities while in custody is not covered by the contingencies of detention order issued for wrong purpose. The petitioner, however, would rely on the decision in the case of Rajinder Arora and the subsequent decision in Deepak Bajaj's case. Insofar as the case of Rajinder Arora is concerned, the same has been distinguished in the case of Bhaurao Gawande (supra). The dictum in the case of Deepak Bajaj (supra), on which reliance is placed, proceeds on the premise that the five contingencies specified in Gadia's case are not exhaustive, whereas the 64 wp10309

larger Benches of three Judges of the Apex Court have taken the view that the five contingencies specified in Gadia's case are exhaustive.

65. The real question is whether the stated ground is covered by Contingency (iii) or Contingency (iv) specified in the decision of the Apex Court in Gadia's case. As observed earlier, Bhaurao Gawande's case is an authority on the proposition that the grievance regarding custodial assault would not make the order of detention questionable or the detention order cannot be termed as having been issued for a wrong purpose as such. Even in the case of Subhash Gandhi (supra), similar grievance was made that the doctor of the jail hospital, in his report submitted to the Chief Metropolitan Magistrate regarding medical examination of the appellant, mentioned that some bruises and abrasions on his person were found, and he complained of pain on his body. The appellant was not produced before the Magistrate as per the constitutional and statutory requirement. The Court rejected the argument, that such grievance would be covered within the contingencies specified by Gadia's case; and more so, the detention order, as passed, would be for a wrong purpose. The said ground, even if were to be taken as it is, will not be covered by Contingency No. (iv), as the detention order cannot be said to have been passed on vague, extraneous and irrelevant grounds. If 65 wp10309

so, the challenge of the petitioner in this writ petition must fail at the pre- execution stage.

66. It was argued that the statements recorded by the authorities would indicate that the petitioner had no role in smugging of goods, whereas the duty evasion is attributable to Arun Gupta, who is the brain behind the unlawful activity, and the petitioner has merely purchased the goods imported by him. The expression 'smuggling', as defined in Section 2(e) of the COFEPOSA Act, postulates that it has the same meaning as in Section 2(39) of the Customs Act and all its grammatical variations and cognate expressions shall be construed accordingly. Section 2(39) of the Customs Act provides that smuggling in relation to any goods means any act or action which will render such act liable to conviction under Sections 111 or 113. Section 111 applies to confiscation of improperly imported goods and Section 113 applies to confiscation of goods attempted to be improperly exported. Amongst others, sub-clauses (d), (j) and (o) of Section 111 will be of some relevance to the case on hand. The Detaining Authority, before recording subjective satisfaction, must have obviously considered as to whether the goods found in possession and seized from the petitioner were covered by the sub-clauses of Section 111 of the Customs Act or not. In the case of N.K. Bapna (supra) decided by a three- 66 wp10309

Judge Bench of the Supreme Court, similar grievance has been rejected by the Apex Court on the finding that the goods were cleared without payment of dues. In the said decision, it is also held that the ground urged similar to one which is argued before us is not covered by the contingencies specified in the decision of the Apex Court in Gadia's case. The learned Additional Public Prosecutor took us through the entire Grounds of Detention to point out about the involvement of the petitioner so as to justify the passing of detention order against the petitioner under the provisions of the COFEPOSA Act. It is not necessary for us to dilate on this aspect of the matter any further.

67. During the pendency of this petition, the petitioner has taken out a criminal application, which was tendered across the Bar, praying that the petitioner be allowed to amend the petition to urge additional grounds. Since the matter was already heard for quite some time, we took the said application on record. The additional ground urged on behalf of the petitioner is as follows:-

"3-A - The petitioner says and submits that as stated above, the petitioner has annexed his grounds of detention which was given to his father Kailash Jain by the officer of Mufti / Police at Delhi. All the 3 (three) statements of the Petitioner dated 30.03.2006, 04.04.2006 and 05.04.2006, which were considered by the detaining authority at Para 32 to 34. The statement dated 05/04/2006 obtained under coercion was duly retracted before ACMM on 13/04/2006. From the 67 wp10309

statement of the Petitioner examined at Para 32 & 33 of grounds of detention along with statement at para-, 18, 19 & 22 in which subjective satisfaction of the detaining authority is stated that the petitioner was not the importer of the Dry fruits but the petitioner used to purchase the said Dry Fruits, Gambier, Beetle Nut etc. from Arun Gupta (sic). The petitioner says and submits that it becomes clear from the grounds of detention that the petitioner was no way concerned with the smuggling activities and he has not taken any part in the event of evasion of customs duty on the abovesaid goods.

The petitioner says and submits that under the circumstances aforesaid the case of the petitioner is fully covered under the exceptional clause of (iii) & (iv) of the judgment passed by the Hon'ble Supreme Court in the case of Addl. Secretary to the Government of India & Others Vs. Alka Subhash

Gadia & anr."

68. The learned Additional Public Prosecutor has rightly submitted that the material collected during the course of the investigation cannot be the basis to judge whether the detention order has been validly passed. The detention order is founded on the documents made available to the Detaining Authority, whereas the charge-sheet has been filed subsequently after completion of investigation. Going by the Grounds of Detention which is based on the statement, the involvement of the petitioner in the unlawful, prejudicial activities is disclosed. The fact that Arun Gupta is the main importer does not take the matter any further. The fact remains that the offending goods were found in possession of the petitioner in large quantity. Suffice it to observe that even the additional contention raised on behalf of the petitioner reproduced above, in our 68 wp10309

opinion, is not covered by the contingencies specified in Gadia's case, in particular contingency (iii) or (iv) which is pressed into service. In our opinion, the challenge raised even in this petition at the pre-execution stage is unavailable. Accordingly, even this petition as well as the criminal application tendered across the Bar would fail on that count.

69. We may place on record that the petitioners had placed reliance on other reported Supreme Court decisions to buttress the argument that the order of detention vitiates on account of unexplained delay in issuance or execution of the order. To wit, Lakshman Bhawarlal Ganeshmalji - (1999) 1 SCC 465, Pradeep M. Paturkar - 1993 Supp (2) SCC 61; Adishwar Jain - (2006) 11 SCC 339. However, these are cases post execution of the detention order. Similarly, reliance is placed on decisions of our High Court in the case of Hassem Imran Mohd. Siddik - 2001 Cri. L.J. 1619 and Shashikant Ramjidas Chawla v.The State of Maharashtra (unreported) in Criminal Writ Petition No. 349 of 2008 decided on August 4, 2008. Even these decisions pertain to challenge to detention order post execution. Hence, none of these decisions are of any avail to the controversy on hand.

69 wp10309

70. We would make it clear that nothing in this judgment shall affect the right of the petitioners or the proposed detenues to pursue their remedy after the detention order is executed. All questions raised by them can be considered on their own merits. We are dismissing two out of three petitions, only because the grounds urged by the petitioners are not covered by the contingencies specified in Gadia's case. In other words, challenge to the detention order at the instance of the said petitioners and proposed detenues will have to be considered on its own merits, in accordance with law.

71. Accordingly, we proceed to pass the following order:- (i) Criminal Writ Petition No. 103 of 2009 is allowed. Rule is made absolute in terms of prayer clause (a), with liberty to the Detaining Authority to proceed against the petitioner in accordance with law.

(ii) Criminal Application No. 398 of 2010 in Criminal Writ Petition No. 103 of 2009 is disposed of.

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(iii) Criminal Writ Petition No. 1645 of 2010 is

dismissed.

(iv) Criminal Writ Petition No. 2675 of 2010 is

dismissed.

(v) Criminal Application No. 532 of 2010 in Criminal Writ Petition No. 2675 of 2010 is disposed of.

P.D. KODE, J. A.M. KHANWILKAR, J. 71 wp10309

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE SIDE JURISDICTION

CRIMINAL WRIT PETITION NO. 103 OF 2009

WITH

CRIMINAL APPLICATION NO. 398 OF 2010

WITH

CRIMINAL WRIT PETITION NO. 1645 OF 2010

WITH

CRIMINAL WRIT PETITION NO. 2675 OF 2010

AND

CRIMINAL APPLICATION NO. 532 OF 2010

Date of Reserving: 20-10-2010

Date of Pronouncing: 05-01-2011

Transcript of Judgment.

Hon'ble Mr. Justice A.M. Khanwilkar

Hon'ble Mr. Justice P.D. Kode

1. Whether to be referred to the Reporters ]

or not? ]

2. Whether the Reporters of the Local Papers ]

may be allowed to see the Judgment? ]

3. Whether this case involves a ]

substantial question of law as to ]

the interpretation of the ]

Constitution of India, 1950, or any ]

order made thereunder? ]

4. Whether it is to be circulated to ]

the Civil Judges? ]

5. Whether the case involves an ]

important question of law and ]

whether a copy each of the judgment ]

should be sent to Nagpur, Aurangabad & ]

Goa Offices?