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1992 DIGILAW 1100 (ALL)

Rajendra Singh Bhatia v. State of U. P

1992-08-19

D.K.TRIVEDI, R.K.AGARWAL

body1992
JUDGMENT Mr. D.K. Trivedi, J. - By means of this writ petition the petitioner, Rajendra Singh Bhatia, prayed for quashing of detention order dated 5.10.1991 passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act before implementation of the said impugned order of detention. The petitioner further prayed for a Writ of Certiorari quashing the order dated 25.2.1992. The petitioner further prayed for quashing of the order dated 25.2.1992 issued by the State Government declaring the petitioner as an absconder. The petitioner also prayed for a Writ of Mandamus commanding the opposite parties not to arrest the petitioner in pursuance of the detention order dated 5.10.1991. Admittedly the order of detention was passed against the petitioner on 5.10.1991 and the petitioner, since then, is evading his arrest and did not surrender in pursuance of the said impugned order. The petitioner filed this writ petition challenging the said detention order as mentioned above. 2. Shri K.D. Nag, Counsel for the Central Government relying on a case of Additional Secretary to the Government of India and Others v. Smt. Alka Subhash Gadia and Another, 1991 (1) Judgment Today, 459, raised a preliminary objection that the present writ petition is not maintainable in view of the fact that the petitioner has not been arrested or submitted to the impugned order. On the other hand, Shri Virendra Bhatia, Counsel for the petitioner, relying on a case of Shri N.K. Bapna v. Union of India and Others, 1992 (IV) Judgment Today, 49 contended that the detention order can be challenged at pre-execution stage and the Court has also jurisdiction to entertain such writ petitions. 3. No doubt the Court under Article 226 of the Constitution of India has very wide powers and can interfere, at pre-execution stage, with the detention order but in exceptional cases. The Hon'ble Supreme Court in the case of Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia (supra) pointed out some specific instances in which Court can interfere under Article 226 of the Constitution of India. The said conditions are as under : "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. The said conditions are as under : "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 fora 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 order prior to their execution or 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." 4. The Counsel for the petitioner contended that Hon'ble Supreme Court now in the case of Shri H.K. Bapna v Union of India (supra) after explaining the case of Addl. Secretary to the Govt. of India v. Smt. Alka Subhash Gadia took the view that the Court has power to interfere with the detention order at pre execution stage. As pointed out above there is no doubt the Court has power under Article 226 of the Constitution of India to interfere with the detention orders at pre-execution stage but in exceptional cases. In the case of Shri N.K. Bapna (supra) also the Hon'hle Supreme Court took the same view holding that the order of detention cannot be said to be based totally on extraneous to the provisions of the Act nor it can be said that the grounds of detention are vague, irrelevant or extraneous to the purpose or provisions of the Act. The Hon'ble Supreme Court after taking the view mentioned above d is missed the petition of Shri N.K. Bapna and, therefore, it cannot be said that the case of Shri N.K. Bapna is of any help to the petitioner. The Hon'ble Supreme Court after taking the view mentioned above d is missed the petition of Shri N.K. Bapna and, therefore, it cannot be said that the case of Shri N.K. Bapna is of any help to the petitioner. It is proved that the petitioner is absconding since the order of detention was passed and the said order has not yet been implemented. The contention of the petitioner that the petitioner has given proper explanation and filed receipts showing that either duty has been paid on the goods or the goods belonged to the customers, therefore, no case under Customs Act has been made out against the petitioner but, in our opinion, that will be a question of fact and it will be decided by the Customs Authorities and it is not possible to record any finding on these questions at this stage. It is also not disputed that the proceedings under the Customs Act took place and in the said proceedings orders have been passed against the petitioner. It is also not disputed that the petitioner filed an appeal against the said order and the said appeal is still pending. The petitioner's Counsel on this fact further contended that the question of smuggling has not been decided and the appeal is pending, therefore, till the pendency of the appeal it cannot be said that the petitioner is a smuggler and, therefore, no order sunder COFEPOSA could be passed. The Counsel for the opposite parties further pointed out that the Government of India vide letter dated 8.1.1992 directed the petitioner to surrender but the petitioner is still absconding and, therefore, the petitioner is not entitled to any relief under Article 226 of the Constitution of India. In any case, it is now settled law that the detention order can be challenged at pre execution stage but in very exceptional circumstances. Such circumstances have already been enumerated by the Hon'ble Supreme Court in the Case of Addl. Secretary to the Govt. of India v. Smi. Alka Sublrash Gadia. The petitioner's Counsel failed to point out that the petitioner's case falls under any of the exceptions mentioned in the case of Addl. Secretary to the Govt. of India v. Smi. Alka Subliash Gadia, therefore, in our opinion, the present writ petition is liable to be dismissed summarily on this ground alone. of India v. Smi. Alka Sublrash Gadia. The petitioner's Counsel failed to point out that the petitioner's case falls under any of the exceptions mentioned in the case of Addl. Secretary to the Govt. of India v. Smi. Alka Subliash Gadia, therefore, in our opinion, the present writ petition is liable to be dismissed summarily on this ground alone. However, it may be made clear that the petitioner can raise all the grounds again after submitting to the detention order. 5. Lastly the petitioner's Counsel stated that the impugned order was passed on 5.10.1991 and now a period of 10 months have elapsed, therefore, the State be directed to reconsider the question of implementation of the impugned order. We are unable to accept this request of the appellant as, in our opinion, it would not be proper to give any direction to the State. However, it is always open to the Detaining Authority to implement or to recall the detention order. In the result the writ petition has no force and is dismissed as premature.