MANITHODIKA ABDUL REHIMAN v. UNION OF INDIA — 1991 DIGILAW 292 (DEL)

( 1 ) THE petitioner has filed this writ petition under Art. 226 of the Constitution of India read with S. 482 of the Code of Criminal Procedure for issue of a writ of mandamus and/or a writ of certiorari for restraining the respondents, Union of India and State of Kerala from implementing the order of detention purported to have been passed u/s. 3 (1) of the COFEPOSA Act 1974 on 7-11-87 and also restraining them from taking any steps or action pursuant to the aforesaid order of detention. A prayer is also made that the detention order may be set aside. ( 2 ) THE brief facts of this case are that on 30-11-86 the Superintendent of Central Excise, Manjeri (Kerala) searched the residence of one T. A. Sirajuddin at Kuttipuram wherefrom nothing was recovered. But on questioning, he disclosed that he had buried 11 gold biscuits in the ground of his house, and then he dug out and recovered the biscuits wrapped in carbon paper and bearing foreign markings and of the value of Rs. 3,14,237/ -. Sirajuddin is then alleged to have given a statement u/s. 108 of the Customs Act that the gold biscuits seized from the ground of his residential premises were, in fact, brought by one Abdurahiman of Kanmanam, Thoovakkad (Kerala), and that one Abdurahiman of Karimbil had informed him that the other Abdurahiman of Kanmanam was bringing his goods from Gulf countries to Delhi. Besides giving other details he also informed that he had learned that a gang including the aforesaid two Abdurahimans (one of which is the petitioner) were attempting to apprehend him and so he buried the biscuits at the back of his house. Sirajuddin gave more particulars of the manner in which he was kidnapped in an Ambassador Car by a group of people and kept in confirment till the morning of 30-11-86. He also named the petitioner and the other Abdurahiman as those persons who had kidnapped him. The search of the residential premises of the petitioner, however, on 11-12-86 did not yield any incriminating articles. A further statement of Sirajuddin was recorded wherein he has stated that his earlier statement dated 30-11-86 contained several mistakes. So he disclosed certain new facts. On 5-12-86 and 11-12-86 statements of Issac Babu and the other Abdurahim respectively were recorded which corroborated the statement of Sirajuddin. A further statement of Sirajuddin was recorded wherein he has stated that his earlier statement dated 30-11-86 contained several mistakes. So he disclosed certain new facts. On 5-12-86 and 11-12-86 statements of Issac Babu and the other Abdurahim respectively were recorded which corroborated the statement of Sirajuddin. Certain more incriminating statements were made against the petitioner by the other Abdurahiman from which it appeared that the petitioner while at Abu Dhabi and others were members of a smuggling racket and they offered good remuneration to the other Abdurahiman. So he came to Delhi on 24-11-86 from Abu Dhabi. When he came out of the Customs clearance the petitioner and his friend Sirajuddin were waiting outside the Airport. A Show Cause notice under S. 124 of the Customs Act was given to the petitioner on 13-5-87. Thereafter on 7-10-87 the impugned detention order was passed against him. ( 3 ) THE detention order is thus being challenged at the pre-execution stage on behalf of the petitioner. Although a number of grounds have been taken but mainly three grounds are pressed before me. The first ground is that there is a long delay in passing the detention order against the petitioner. Still worse, the detention order has not been executed although a long time has elapsed. The second ground is that the petitioner had made a representation under S. 11 of the Act on 26-11-88 and the same was received by the Department on 29-11-88. In spite of the representation neither the detention order was revoked nor a report alongwith the grounds of detention and the detention order were supplied to the petitioner. The third ground is that the action under the provisions of COFEPOSA Act is precautionary in nature intended to prevent attempts at future smuggling. In the instant case the facts were not such as would justify and warrant the conclusion on the part of the concerned authorities that the petitioner is engaged in the act of smuggling. Even at the time of passing of the detention order the detaining authority was not aware that the petitioner was not in India at the time of the incident or on the date when the order of detention was passed and, therefore, the order of detention lacked subjective satisfaction of the detaining authority. Even at the time of passing of the detention order the detaining authority was not aware that the petitioner was not in India at the time of the incident or on the date when the order of detention was passed and, therefore, the order of detention lacked subjective satisfaction of the detaining authority. ( 4 ) I have heard the arguments advanced by the learned counsel for the parties and have also perused the various authorities cited at the Bar. Learned counsel for the petitioner argued that the incident is alleged to have taken place on 30-11-86. The authorities passed the detention order only on 7-10-87 against the petitioner, i. e. , after a very very long delay. Still worse was the fact that no attempt was made to execute the detention order for a pretty long time. Learned counsel for the respondents has shown me the detention order passed against the petitioner along with the ground of detention. The detention order is dated 7-10-87. Learned counsel has first argued the detaining authority is not bound to explain the delay in passing the detention order. For this purpose, the learned counsel has cited the case of Rajendrakumar Natvarlal Shah v. State of Gujarat, AIR 1988 SC 1255 . It was ruled, "a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22 (5) of the Constitution. The rule as to unexplained delay in taking action is not inflexible. In cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of delay in making of an order of detention assume that such delay, is not satisfactorily explained and must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are "stale" or illusory or that there is no real nexus between the grounds and the impugned order of detention. " In the instant case it may be noted that the order of detention has still not been served on the petitioner and he is challenging the same at the pre-execution stage. The petitioner merely relies upon the grounds of detention served upon the co-accused and from there wants to make out that the grounds had become stale or illusory or that there is no real nexus between the grounds and the detention order. I am of the view that unless the detention order and the grounds of detention are actually served on the petitioner it will not be safe to draw any inference from a detention order and the grounds of detention served on a co-accused. Learned counsel for the petitioner drew my attention to the case of T. A. Abdul Rahman v. State of Kerala, (1989) 4 SCC 741 : (1990 Cri LJ 578), a judgment of Division Bench of Two Judges, wherein it was laid down that the absence of convincing explanation for delay in passing a detention order and arresting the detenu throws doubt on the subjective satisfaction of the detaining authority. On the other hand, learned counsel for the respondents, drew my attention to the latest pronouncement of the Hon ble Supreme Court in the case of the Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia, (1991) 1 JT (SC) 549, wherein a Division Bench comprising of three Hon ble Judges ruled that the State need not serve the grounds of detention before detaining the proposed detenu in advance. If that be the interpretation of the law of preventive detention laid by the Hon ble Supreme Court, I am of the view that the petitioner who has not yet been detained in pursuance to the detention order cannot be allowed to raise the plea that there is a long delay in passing the detention order or further that there is a long delay in executing the detention order. It further laid down, "neither the Constitution including the provisions of Art. 22 thereof nor the Act in question places any restriction on the powers of theHigh Court and this Court to review judicially the order of detention. The powers under Arts. 226 and 32 are wide, and are untrammelled 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-imposed 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 policy 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 discretionary extraordinary and equitable jurisdiction under Arts. 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. . . . . . . . . . . . . . . . . . . . . . . The courts have the necessary power and they have used it in proper cases 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 perversion of the law in question. . . . . . . . . . . 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. " ( 5 ) FROM a bare perusal of the law laid down by Hon ble Supreme Court I am of the view that it will be only in the rarest of rare cases narrated above that the High Court will exercise its extraordinary jurisdiction under Article 226 of the Constitution. There is no dispute in the present case that the impugned order is not passed under the COFEPOSA Act. It is also not disputed before me that it is actually some other person and not the petitioner against whom the order had to be executed. At this stage it also cannot be said that the purpose for which the detention order has been passed is wrong because the petitioner was specifically mentioned by other co-accused persons to be one of the king-pins of the act of smuggling gold into India from Abu Dhabi. Without actually going into the detention order it is also not possible to say at this stage that it is passed on vague, extraneous and irrelevant grounds. It is not even the case of the petitioner that the authority which claims to have passed the detention order had no authority to do so. However learned counsel for the petitioner has drawn my attention to the case of Subhash Chander v. Union of India, (1991) 43 Delhi LT 517, of a Division Bench of this Court. It is not even the case of the petitioner that the authority which claims to have passed the detention order had no authority to do so. However learned counsel for the petitioner has drawn my attention to the case of Subhash Chander v. Union of India, (1991) 43 Delhi LT 517, of a Division Bench of this Court. It was ruled in this case that there was delay in the execution/ service of detention order and there was total absence of the explanation by the State regarding the delay in the execution of the detention order. It was further found that there were mere bald allegations that the detenu was evading service and further that no steps as per provisions of Section 7 COFEPOSA Act for effecting service of the detention order on the proposed detenu were taken. In view of the aforesaid circumstances, it was held that the genuineness of the subjective satisfaction formed by the detaining authority was rendered doubtful. In the present case, however, learned counsel for the respondents has made a statement at the Bar that immediately on passing of the detention order on 7-10-87, it was forwarded to the Superintendent of Police Malappuram who was authorised to arrange for the execution of the detention order. The SP was also directed to intimate the actual date of execution of the order. The Superintendent of Police then wrote a letter dated 16-2-88 to the Secretary to the Government, Home Department, Trivandrum, in which he informed that confidential enquiries revealed that the petitioner was reported to be in Bombay at that time and the Circle Inspector of Police had been instructed to set up reliable informant and to apprehend the petitioner and another detenu as and when they visited their native place. The Circle Inspector was further instructed to make continuous enquiries to find out their addresses in Bombay. Thereafter, the Secretary to the Government, addressed a communication dated 14-3-88 to the Chief Judicial Magistrate, Manjeri, that the petitioner could not be apprehended till date and the Government had reason to believe that he was concealing himself so that the said order cannot be executed. On the same date the Government of Kerala issued a Notification under Section 7 of the COFEPOSA Act directing the petitioner to appear before the Superintendent of Police, Malapuram at his office within 30 days from the date of publication of the order. On the same date the Government of Kerala issued a Notification under Section 7 of the COFEPOSA Act directing the petitioner to appear before the Superintendent of Police, Malapuram at his office within 30 days from the date of publication of the order. Learned counsel has shown me the detention file of the petitioner wherein these steps are shown to be taken. The petitioner himself has attached Annexure D, the photo copy of a proclamation issued against the petitioner under S. 87 Criminal Procedure Code, (section wrongly mentioned in place of 82 ). Therefore, it is a case in which the respondent, State of Kerala, has taken all reasonable measures enjoined upon it under S. 7 of the COFEPOSA Act to execute the detention order upon the petitioner, and so the facts of the present case are distinguishable from the above referred authority. ( 6 ) LEARNED counsel for the petitioner also argued that the petitioner, according to the entry in passport had left India on 7-5-87 and had reached Abu Dhabi on 8-5-87. Thus the detaining authority was not even conscious of the fact that the petitioner was actually in a foreign country and if it was within the knowledge of the detaining authority, it would have influenced the passing of the detention order against the petitioner one way or the other and, therefore, the alleged subjective satisfaction of the authority was vitiated. In the counter-affidavit it has not been admitted that the petitioner has actually gone abroad although it has been admitted that the report made by the postal authorities on 3-3-87 showed that the addressee i. e. the petitioner had left India. It is also stated in the counter-affidavit that the petitioner has been treated as an absconder. He went into hiding and evaded the Department s attempt to take evidence from him. Learned counsel for the respondents also argued that even if the petitioner is abroad, it is simply with the mala fide motive to delay the execution of the detention order. I am of the view that the Department has made all possible attempts to effect the service of the detention order on the petitioner and, in fact, the petitioner is evading the service of the detention order and no relief can be granted to him at the pre-execution stage, in the circumstances of the case. I am of the view that the Department has made all possible attempts to effect the service of the detention order on the petitioner and, in fact, the petitioner is evading the service of the detention order and no relief can be granted to him at the pre-execution stage, in the circumstances of the case. The petitioner has not even disclosed his foreign address in this writ petition. It is admitted that Extradition Law does not apply to preventive detention matters. Therefore, the only manner in which the authorities can procure the presence of the petitioner will be by taking steps against him under Section 7, COFEPOSA Act that is, either by issuing a proclamation for his appearance or by attaching his properties. Subjective satisfaction of the detaining authority on account of the petitioner being abroad can also not be challenged at this stage. It may be open to challenge only when the petitioner is taken into custody in pursuance to the detention. Only then it will be known what factors prevailed with the detaining authority to arrive at a subjective satisfaction. The ground is misconceived. ( 7 ) THIS petition has, therefore, no merit and is hereby dismissed. Petition dismissed.