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The Foreign Exchange Regulation Act, 1973
Article 226 in The Constitution Of India 1949
S.M.D. Kiran Pasha vs Government Of Andhra Pradesh And ... on 9 November, 1989
Additional Secretary To The ... vs Smt. Alka Subhash Gadia And Anr on 20 December, 1990
The Indian Penal Code

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Madras High Court
P. Mansoor Mohammed Ali Jinnah vs Union Of India (Uoi) And Anr. on 23 August, 1991
Equivalent citations: 1992 (39) ECC 85
Author: Misra
Bench: Mishra, Govindasamy



ORDER
 

Misra, J.

1. An unfortunate delay has occurred in the disposal of this petition, which gives a glaring example how a proceeding in a court of law can be contrived to defeat the very purpose for which preventive detentions are ordered. For this inference we are not required to say much beyond taking notice of the relevant facts;

The petitioner, it appears from the facts, has been subjected to proceedings under the Foreign Exchange Regulation Act in May, 1987. On 12.5.1987 the second respondent's officers searched the premises No. 35, Gafoor Sahib Street, Royapettah, Madras-14, and seized Indian currency worth Rs. 17,000 and four bank drafts worth Rs. 20,000 as well as some papers which contained noting for Rs. 2,00,000 and odd. The petitioner, along with some persons viz., Seeni Mohamed and Buhari, was interrogated and according to the respondents, admitted being involved in Rs. 2 crores transactions in violation of the Foreign Exchange Regulation Act. He was produced, however before the Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Madras on 13.5.1987 and remanded on 26.5.1987 on conditional ball On his release, however, the petitioner sent a letter to the Directorate of Enforcement, Delhi stating that the confession that be was involved in Rs. 2 crores transactions had been obtained by use of force and threats and against his will He then filed W.P. No. 5794 of 1987 before this Court for mandamus to the second respondent or any other officer acting under him or on behalf of him from making use of the statement obtained from him during interrogation on 11.5.1987. The petitioner got a favourable order in the judgment of the learned single Judge of this Court dated 20.2.1988 against which an appeal in W.A. No. 891 of 1988 (reported as Deputy Director, Enforcement Directorate v. P. Mansoor Mohamed Ali Jinnah in was preferred on behalf of the concerned respondents therein. The said writ appeal, however, was allowed and the writ petition No. 5794/1987 was dismissed. The petitioner moved the Supreme Court in Special Leave Petition No. 7035/89 against the judgment in the said writ appeal. But, on 15.1.1990 the same was disposed of by the Supreme Court in these words; "The Special Leave Petition is dismissed as withdrawn. The petitioner is allowed to arbitrate the petition in order to enable him to make appropriate application before the appropriate forum". The petitioner filed W.P. No. 6624/89 for a writ of mandamus directing the respondents not to detain him under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act in which on 15.5.1989 a sort of injunction was granted in favor of the petitioner until 15.6.1989. The said writ petition, however was dismissed on 25.8.1989. The petitioner then filed the instant writ petition on 12.2.1990 praying once again to issue a writ of mandamus or any other appropriate writ or order or direction to the respondents or their men or agents or any other officer acting under them or on behalf of them to forbear from arresting and detaining the petitioner under the Cofeposa Act in connection with search and seizure of the premises No. 35, Gafoor Sahib Street, Royapettah, Madras-14 on 12.5.1987. When the writ petition was posted for orders along with the writ miscellaneous petition bearing No. 2501 of 1990 a Bench of this Court admitted the writ petition and ordered notice in the writ miscellaneous petition. On 29.6.1990, however, this Court in the Writ Miscellaneous Petition ordered as follows:--

The writ petition itself is to be taken up for hearing on 5.7.1990. In this view of the matter and in considering that similar other matters are coming up on that day there will be an interim injunction till then.

The case was taken up for hearing by us only on 11.1.991 followed by further hearing on 18.1.1991 and 22.1.1991, on which date, after hearing learned Counsel for both parties we reserved the judgment, to be delivered in Court on the following day. Since however we could not assemble again for quite a long time we thought it desirable to place the case for hearing today.

2. Having heard learned Counsel for parties, irrespective of the persuasions and submissions of the learned Counsel for the petitioner, we find that by repeated applications filed before this Court under one pretext or the other, the petitioner has successfully avoided a legal action against him and if any further delay in disposing of this application is made, it will only mean that we too fall a prey to a proceeding which is nothing but an abuse of the process of the Court.

What the petitioner stated in the writ petition to suggest that he has got any grounds for a prede-tention writ as follows:--

1. On 12.5.1987 at about 11.30 A.M. the second respondent's officers searched the premises of door No. 35, Gafoor Sahib Street, Royapettah, Madras- 14, and seized Indian currency of Rs. 17,000 and four bank drafts for Rs.20,000. They seized some paper which contained noting for Rs. 2,00,000 and odd, relating to local business and which had nothing to do with The Foreign Exchange, the nothings relating to the period from December, 1986 to 11.5.1987.

2. The petitioner along with Seeni Mohamed and Buhari was forcibly taken to the office of the Enforcement Directorate and Detained in the office of the second respondent (locked up in three rooms separately for two days and one night continuously.) They did not allow them to sleep anddid not provide any basic amenities and compelled them to write false statements under Section 14 of the Foreign Exchange Regulation Act. The statement is not a voluntary one.

3. Despite the protest the petitioner as well as the other two persons were compelled to admit for Rs. 2,00,000 and odd contained in the notings must be multiplied by 100 times and thus were compelled to admit being involved in Rs. 2 crores transactions and that also in violation of the Foreign Exchange Regulation Act.

4. The petitioner was produced before the Additional Chief Metropolitan Magistrate, Madras at about 4 P.M. on 13.5.1987, who remanded him to the judicial custody. The 'Enforcement Officers warned him that he must not complain about the ill treatment to the learned Magistrate and if he complained he would face dire consequences.

5. On 26.5.1987 the petitioner and others were released on conditional bail.

6. On 27.5.1987 the petitioner wrote to the Directorate of Enforcement that the statement dated 11.5.1987 had been obtained by use of force and threats and against his will. All these grounds were raised by him in W.P. No. 6624 of 1989 which was dismissed by a Division Bench of this Court on 25.8.1989. Besides the petition in W.P. No. 6624 of 1989, we have already noticed he had earlier made attempt in W.P. No. 5794 of 1987 to ensure that in contemplating any detention order the respondents got no benefit from the confessional statement made by him before the Authorities of Enforcement Directorate on 11.5.1987, a proceeding which he took up to the Supreme Court finally to get the same dismissed as withdrawn to enable him to make appropriate application before the appropriate forum. The petitioner, however, has stated that according to the Enforcement Department Seeni Mohamed was the proprietor and the petitioner and Buhari were his employees.

The allegations against Seeni Mohamed were that he had violated the Foreign Exchange Regulation Act by making compensatory payment to the tune of Rs. 2.25 crores out of which the petitioner and Buhari had helped him to make the disbursement of Rs. 7,00,000 and Rs. 4,00,000 respectively, and added:--

The grounds of detention can be and are the same for all. Seeni Mohamed was detained on 1.8.1989 pursuant to the detention order dated 25.9.1987. He was ordered to be released by the Central Advisory Board (Cofeposa) and the Central Government by its order directed the Superintendent, Central Prison, Madras to release him.

He has quoted from the representation of Seeni Mohammed to the Advisory Board to suggest that Seeni Mohammed also had a similar case, that he had made a grievance that he had been compelled by force to confess his involvement, that he had retracted from the said statement after he was released on bail, that he had filed a writ petition in W.P. No. 57% of 1987, that the said statement should not be allowed to be used by the respondents for any purpose under the Foreign Exchange Regulation Act or any other Act and that he had also filed' another writ petition that is to say W.P. No. 10625/89 for production of his passport, which passport was not produced before Court. Thus stating that the proprietor, who, for more or less similar grounds was sought to be detained and was detained according to law was finally released on the advice of the Advisory Board, why then the petitioner at all be allowed to be detained if the grounds are not such which can, secure approval of the Advisory Board.

3. Before we proceed further we feel it worthy to state that a pre-detention writ can be entertained as said in a judgment by one of us in W.P.No. 6610 of 1989 - M.H.K. Mohammed Ibrahim v. State of Tamil Nadu 1990 L.W. Crl. 518 as under:--

All judicial authorities are unanimous in laying down the law that the Court should not interfere with the State's action to detain someone in accordance with the provisions of the law of Preventive detention unless it is found that they intend to arrest without adequate and reasonable grounds or on non est or irrelevant grounds.

This view was expressed in the light of the judgments of the Supreme Court including the case of S.M.D. Kiran Pasha v. The Government of Andhra Pradesh and Ors. the Supreme Court stated;

Resort to Article 226 after the right to personal liberty is already violated is different from the pre-violation protection. Post-violation resort to Article 226 is for remedy against violation and for restoration of the right. While pre-violation protection is by compelling observance of the obligation or compulsion under Saw not to infringe the right by all those who are so obligated or compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy for restoration of the right which is not the same as restraining potential violators in case of threatened violation of the right. The question may arise what precisely may amount to threat or imminence of violation. Law surely cannot take action for internal thoughts but can act only after overt acts. If overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, should not the court call upon those alleged to have' takes those steps to appear and show cause why they should not be restrained from violating that right instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus?.... The difference of the two situations; as we have seen have different legal significance. If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration of the right.

In the Additional Secretary to the Government of India and Ors. v. Smt Alka Subhas Gadia and Anr.

(Criminal Appeal Nos. 440-441 of 1989 SC), however, the Supreme Court has bestowed its attention to the problems created in deciding whether a pre- detention writ should be entertained or not. The Supreme Court has referred to almost all relevant decisions including the case of S.M.D. Kiran Pasha v. The Government of Andhra Pradesh and Ors. 1990 I SCC 328 referred to supra and said in answer to the questions;

We find that this argument is also not well-merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the constitution including the provisions of Article 22 thereof nor the Act in question place any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Article 226, and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or Criminal consequences. However, the Courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposes! restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial polity and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretional extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authoritiesearlier dealt in detail with the circumstances under'[Illegible] extraordinary powers are used and[Illegible] declined to be used by the courts.Secondly, as has been rightly pointed out by Shri Sibba! for the appellants, as far as 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. Thirdly and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution; the Courts have the necessary power and they have used it in proper case as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them 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 a 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. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the provision of the law in question.

Lastly, it is always open for the detenu or anyone on his behalf to challenge the detention order by way of habeas corpus petition on any ground available to him. It is not, therefore, correct to say that no judicial review of the detention order is available. In the view we are taking which applies also to the cases under other laws, the stage at which the judicial review is made by the Court only stands deferred till after the order is executed. A ground on which a detention order is challenged which requires investigation and cannot be adjudicated without hearing the other side and without proper material, has necessarily to await decision till the final hearing. In such cases the operation of the order of detention by its very nature cannot be stayed pending the final outcome. The only proper course in such cases is to hear the petition as expeditiously as possible Posing a further question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available the Supreme Court has said;

Thirdly, in the rare case where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Courts 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. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles.

After saying the above, the Supreme Court has said;

To the extent that the decision of this Court in S.M.D. Kiran Pasha v. The Government of Andra Pradesh and Ors. 1989 (4) SC 336) and the decisions of all the High Courts are contrary to or inconsistent with the view taken by us above, they will be deemed to have been disapproved and overruled.

4. In view of the law stated by the Supreme Court as above, all the judgments of the High Courts as well as the judgment in the case of S.M.D. Kiran Pasha, referred to supra, in which a contrary view has been taken have to be ignored and it will be, therefore, unnecessary exercise to examine any other authority for finding out whether the petitioner has made out that type of a rare case in which this Court should exercise its judicial discretion to interfere at a pre-detention stage. Of the five grounds, (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 a 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, the first, second, third and the fifth are obviously not available to the petitioner. The fourth could be available to him had he been served with the grounds upon which he is sought to be detained or obtained a copy thereof or shown to us with reference to any of the grounds that are brought on the record on behalf of the respondents that they are vague, extraneous or irrelevant grounds. He has not done so.

5. It is clear from the judicial pronouncements that a pre-detention writ is not a writ of habeas corpus. It is either mandamus or any order or direction akin to it. Can a petitioner be allowed to repeat his prayer by making another petition and go on making petitions after petitions for the same relief, the answer is a clear "no". A Bench of this Court, for which, the judgment has been delivered by one of us in the case of Dr. S. Balasundaram/Tamil Nadu Agricultural University, etc. v. Dr. S. Mahadevan, etc., (D.B.) 1991 Writ L.R. 361 has taken notice of several judgments of the Supreme Court and other Courts to conclude, "Though the Code of Civil Procedure would not apply as such to a writ proceeding, it must always be remembered that the constructive Res Judicata is the extension of the Res Judicata rule recognized under Section 11 of the Code of Civil Procedure. Explanation IV states;

 Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit
     ***                                ***                                 ***
There was thus no escape to the writ petitioner before Mohan, J., from the rule of Res Judicata.
 

That was a case in which the writ petitioner had asked for a writ of quo- warranto challenging the appointment of one of the respondents as the Professor in the Tamil Nadu Agricultural University. That writ petition was dismissed on merits. The same very petitioner then filed a petition praying for a writ of certiorari challenging the very same appointment. This Court held that since Article 226 of the Constitution has not recognized any classification or separation of the various categories of varipus writs and has only given power to the Court to issue writs in the nature of some of the recognized prerogative writs as well as other orders and directions, it was not possible to say that the earlier decision had been given in a writ of certiorari and, therefore, Res Judicata. Even in England where the Courts evolved rules as to various types of writs that they issue they are consistent on the aspect that irrespective of the nature of writs sought for, facts is one and the same. This had been said in a case where a writ of mandamus had been asked for (Vide Rex v. Speyz 1916 1 KB 595).

6. In the decision in The Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr. (Criminal Apparel No. 440-441 of 1989) the Supreme Court has said;

* * * the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further, he is also trying to secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits to the order of detention. Unfortunately, the High Court disregarding the law on the subject and the long-settled principles on which alone it can interfere with the detention order at this stage has directed the authorities not only to furnish to the detenu the order of detention but also the grounds of detention and the documents relied upon for passing the detention order. As has been pointed out at the outset, after this order, the appellant took the plea that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, they cannot furnish them to the first respondent unless, as required by the Act, the detenu first submits to the impugned order. The High Court thereupon issued the contempt notice by its order dated June 30, 1989. For the reasons discussed above, we are of the view that both the orders of the High Court directing the appellants to furnish to the detenu or the first respondent or her counsel the order of detention, the grounds of detention and the documents supporting them as well as the contempt notice of 30th June, 1989 are clearly illegal and unjustified and they are hereby quashed.

If we accede to the prayer of the petitioner and proceed to examine whether the grounds upon which the respondents proposed to detain the petitioner are vague, irrelevant or extraneous, we shall repeat the same mistake which the Bombay Court did in providing to the detenu the opportunity to get a copy of the detention order before it is served upon him as well as the grounds thereof which as the law provides have to be served only after the detention is effected. It is fit case, in our opinion, in which this petition should be dismissed, with coasts, and heavy cost for the reason that the petitioner has abused the process of the Court more than once, delayed the due process of law, and defeated if not fully substantially the very purpose for which detention orders are made, by taking out one or the other pre-detention proceeding before this Court and obtaining interim orders of injunction. This writ petition is dismissed with costs, hearing fee Rs. 2,000 each day.

An oral application has been made for appeal to the Supreme Court against our Judgment. We are not satisfied, however, that it is a fit case for appeal. We have only relied upon the last judgment of the Supreme Court to form our opinion on the merit of the application and decided to dismiss the application for a pre-detention writ. The prayer is refused.