Satya Narain v. Union of India — 1993 DIGILAW 709 (RAJ)

Honble MATHUR, J.—The petitioner by this writ petition has prayed that by an appropriate writ, order or direction, the proceedings is Criminal Misc. Case No. 7/91 pending in the Court of Chief Judicial Magistrate, Bikaner may be quashed and the order Annex.3 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (referred to hereinafter as the Act of 1974) may be quashed. (2). The petitioner is a resident of Bikaner City (Rajasthan). On 16.4.1989 the petitioner was travelling by truck No. RRF 6285 which passed through Allahabad. The Central Excise authorities seized that truck on 16.4.1989 at Hanumanganj (Allahabad) and arrested the petitioner alongwith three other persons. Though they were released on bail thereafter by the Allahabad High Court. The Chief Judicial Magistrate, Bikaner in Criminal Case Ho. 7/91 issued a warrant for the arrest* of the petitioner upto 26,9.1991. It is alleged that the petitioner came to know about these proceedings and appeared before the Chief Judicial Magistrate through his counsel. It is alleged that the petitioner on inspection of the papers came to know that the proceedings before the Chief Judicial Magistrate were commenced on the basis of the request made by the Dy. Secretary to the Government of Uttar Pradesh dated 8.1.1991 (Annex. 2) and it has been mentioned that an order against the petitioner under the Act of 1974 has been issued which has been placed on the record as Annex. 3. The petitioner submitted an application on 26.9.1991 before the Chief Judicial Magistrate, Bikaner and he passed an order on 26.9.1991 that no order need to be passed on the application of the petitioner for cancelling the warrant as the period of warrant has already expired on 26.9.1991. The case was adjourned for arguments on 8.11.1991. The petitioner thereafter approached the Sessions Judge, Bikaner by way of Revision on 17.9.1991 for quashing the proceedings of Criminal Case No. 7/91 pending in the court of Chief Judicial Magistrate, Bikaner. When the matter was pending the petitioner has filed the present writ petition challenging the order Annex. 3 and the proceedings before the Chief Judicial Magistrate. (3). The petitioner thereafter approached the Sessions Judge, Bikaner by way of Revision on 17.9.1991 for quashing the proceedings of Criminal Case No. 7/91 pending in the court of Chief Judicial Magistrate, Bikaner. When the matter was pending the petitioner has filed the present writ petition challenging the order Annex. 3 and the proceedings before the Chief Judicial Magistrate. (3). A reply has been filed by the respondent Union of India as well as the State of Uttar Pradesh and it has been pointed out by the State of Uttar Pradesh respondent No. 2 that a detention order under the Act of 1974 was issued against the petitioner and the petitioner has concealed himself and avoiding the arrest. Therefore, a communication was sent to the Chief Judicial Magistrate, Bikaner to proceed against the petitioner and in pursuance of that the learned Chief Judicial Magistrate issued the warrant. It is also submitted that the order has been passed by the State of Uttar Pradesh. Therefore, the writ petition should be filed before the Allahabad High Court. It is alleged that the aforesaid detention order was sent to the State of Rajasthan but the petitioner concealed himself and avoided the service of detention order. The Government of Rajasthan tried its level best to get the detention order served on him, but failed to do so as the petitioner avoided the service. The Government of Rajasthan informed the respondent State of U.P. vide its letter dated 20.7.1990 that the petitioner is not available at his home at Bikaner for service of the detention order and the where about of the petitioner are not known. It. is alleged that so far as the proceedings against the petitioner under Section 82 Cr.P.C. before the Chief Judicial Magistrate are concerned that have been initiated by the Chief Judicial Magistrate in order to enforce the detention order. There is no other way except to initiate these proceedings. (4). A reply has also been filed on behalf of the Union of India. No body has appeared on behalf of the Government of Uttar Pradesh. However, Mr. Bhargava has appeared on behalf of the Union of India and Mr. There is no other way except to initiate these proceedings. (4). A reply has also been filed on behalf of the Union of India. No body has appeared on behalf of the Government of Uttar Pradesh. However, Mr. Bhargava has appeared on behalf of the Union of India and Mr. Bhargava has seriously contested the matter and submitted that it will not be proper to interfere in this writ petition as the petitioner has to appear before the Chief Judicial Magistrate and the Chief Judicial Magistrate would decide as to whether he should continue with the proceedings under Section 82 Cr.P.C. or not. (5). Mr. Purohit, learned counsel for the petitioner submitted that the order Annex. 3 passed by the Government of Uttar Pradesh deserves to be quashed on account of delay of 2-1/2 years. It is submitted that the order as such has been passed way back in the year 1989 and till this date the order has not been implemented. Therefore, the order should be quashed. He also submitted that in case of K.P.M. Basheer vs. State of Karnataka and another (1), the delay of 5 months and 11 days has been found to be fatal and the order was quashed. Likewise he also submitted that in the case of P.U. Iqbal vs. Union of India and others (2), the delay of one year has rendered the order invalid. Likewise is the case of Subhash Chander vs. Union of India and others (3). As against this, Mr. Bhargava has invited my attention to Bhanwarlal Ganeshmalji vs. The State of Tamilnadu and another (4) and The Additional Secretary to the Govt. of India & Ors. vs. Smt. Alka Subhash Gadia & Anr. (Criminal Appeals Nos. 440-441 of 1989, decided on 20.12.1990 by the Supreme Court) wherein it has been held that the order issued under the Act of 1974 should not be examined unless the incumbent surrenders. (6). I have considered the rival submissions advanced by the learned counsel for the parties. (7). It is true that in case the order Annex.3 passed by the Slate of Uttar Pradesh is quashed being belated then automatically the proceedings against the petitioner before the Chief Judicial Magistrate will come to an end. (6). I have considered the rival submissions advanced by the learned counsel for the parties. (7). It is true that in case the order Annex.3 passed by the Slate of Uttar Pradesh is quashed being belated then automatically the proceedings against the petitioner before the Chief Judicial Magistrate will come to an end. In the present case, the order of detention was passed on .30.6.1989 and the same was sent to the Government of Rajasthan and the Government of Rajasthan as per the reply filed by the State of Uttar Pradesh has tried its level best to serve this order on the petitioner but it failed to do so because the petitioner has deliberately concealed himself and the Stale of Rajasthan informed the Stale of Uttar Pradesh on 20.7.1990 that they are unable to find out the whereabouts of the petitioner. Therefore, the order can not be implemented. Under these circumstances, the State of Uttar Pradesh wrote to the Chief Judicial Magistrate, Bikaner on 8.1.1991 to initiate proceedings against the accused (petitioner) u/s. 82 Cr.P.C. The State of Rajasthan is not a party before me. Therefore, it is not known as to what steps the State of Rajasthan took for implementing the order, when the order dated 30.6.1989 was sent to the State of Rajasthan for effecting the arrest of the petitioner and the same was not served and it was informed to the Stale of Uttar Pradesh vide communication dated 20.7.1990 that the petitioners whereabouts are not known and it will not be possible to implement the order. "Therefore, the State of Uttar Pradesh informed the Chief Judicial Magistrate to initiate proceedings against the petitioner under Sections 82 and 83 Cr.P.C. If the State of Rajasthan has been a party then perhaps its return would have given the necessary facts as to what efforts were taken by the State of Rajasthan for implementing the order but that gap remains as the State of Rajasthan is not a party before me. Now the question is whether in the present situation this delay has been satisfactorily explained or not and whether such delay can be treated so fatal so as to quash the proceedings. Now the question is whether in the present situation this delay has been satisfactorily explained or not and whether such delay can be treated so fatal so as to quash the proceedings. Section 3 of the Act of 1974 says that the Central Government or the State Government, or any officer the Central Government not below the rank of Joint Secretary to that Government, specially empowered for the purposes of this section by that Government or any officer of a State Govt. not below the rank of a Secretary to that Government, Specially empowered for the purposes of this Section by that Government may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods or dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained. There is no challenge to the order passed by the Stale of Uttar Pradesh regarding its validity except on the ground of delay. Therefore, I need not to examine whether the order has been passed by the competent authority and whether the order has been passed properly or not. Section 4 deals with the execution of the detention order and it lays down that the order can be executed as a warrant of arrest under the Code of Criminal Procedure, 1973. Section 7 lays down the powers in relation to absconding persons. Section 4 deals with the execution of the detention order and it lays down that the order can be executed as a warrant of arrest under the Code of Criminal Procedure, 1973. Section 7 lays down the powers in relation to absconding persons. It lays down that if the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides and thereupon the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate. In the present case, as already mentioned above the order was issued on 30.6.1989 and it was sent to the State of Rajasthan and the State of Rajasthan informed the State of Uttar Pradesh vide communication dated 20.7.1990 that the petitioner is not available at his home at Bikaner for the service of the detention order as the incumbent is concealing himself and his whereabouts could not be known and as such the detention order could not be served upon the petitioner. Therefore, there was no option left with the State of Uttar Pradesh to make report to the Chief Judicial Magistrate, Bikaner to initiate proceedings against the petitioner under Section 7 of the Act of 1974 by sending a request for initiating the proceedings against him under Sections 82, 83, 84 and 85 of the Code of Criminal Procedure. (8). Mr. Purohit, learned counsel for the petitioner emphasised that the order has not been implemented for goods 2-1/2 years i.e. from 1989 to 1991. Therefore, this delay has rendered the order invalid and in that connection he has referred to K.P.M. Basheer (supra). This was a case in which an order of detention was issued against the incumbent and even after the issuance of that order the incumbent appeared before the Asstt. Collector of Customs, Marine Lines, Bombay on 6.2.1991 and 20.2.1991 but no attempt was made to arrest and detain him. This was a case in which an order of detention was issued against the incumbent and even after the issuance of that order the incumbent appeared before the Asstt. Collector of Customs, Marine Lines, Bombay on 6.2.1991 and 20.2.1991 but no attempt was made to arrest and detain him. This was a specific averment made by the petitioner but the same could not be satisfactorily explained. Therefore, it was observed that no serious and sincere efforts appears to have been taken by the arresting officers and there was only exchange of correspondents between the Department and the arresting officers. Therefore, in these circumstances, it was found that the authorities were not serious to implement the order. It was opined that order of detention cannot be sustained since the live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him. (9). It will be apparent from the facts of the above case that the detenu was. appearing freely before the Assistant Collector of Customs and twice he appeared on 6.2.1991 and 20.2.1991 still no serious and sincere efforts were made to arrest the incumbent. Therefore, the Honble Supreme Court came to the conclusion on factual aspect of the case that such belated detention would render the order of detention invalid. But that is not the case here. (10). Similarly in the case of P.U. Iqbal the detention order was issued against the incumbent and the order was sent to the S.P. for implementation. The S.P. in turn directed the Circle Inspector of Police to apprehend the warrantee but the incumbent could not be apprehended as the detenu was reportedly working at Bombay and the chances of his visit to his native place were awaited. The incumbent was arrested on 9.8.1990. The Court held that the delay of two years in arresting the incumbent is an inordinate delay and, therefore, quashed the order of detention. It was observed that implementing authorities did not take any serious efforts to execute the order and such reckless attitude on the part of the respondents rendered the order illegal. The incumbent was arrested on 9.8.1990. The Court held that the delay of two years in arresting the incumbent is an inordinate delay and, therefore, quashed the order of detention. It was observed that implementing authorities did not take any serious efforts to execute the order and such reckless attitude on the part of the respondents rendered the order illegal. But here the efforts are being made by the two States to arrest the incumbent but some how the incumbent avoided the service of the order and that cannot be made a ground for quashing the order of detention. (11). Likewise in the case of Subhash Chander (supra) the Court observed that it is true that the detention order can be quashed at pre-execution stage also. (12). In Bhanwarlal Ganeshmalji (supra) the Court observed that it is true that the Court can assume that the link is snapped if there is a long and unexplained delay between the date of the order of detention and the arrest of the dete-nu. In that case, the order of detention was passed on 19.12.1974. The detenu was found absconding. Despite of all the necessary efforts the detenu could not be arrested until he surrendered on 1.2.1978. In that context it was observed that the detention order cannot be held to be invalid. (13). Mr. Bhargava, learned counsel appearing for the Union of India, has also invited my attention to the decision of the Honble Supreme Court given in The Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr (supra). By this judgment a batch of appeals filed before the Honble Supreme Court were disposed of. A large number of questions were agitated and one of the important questions was whether such detention order can be challenged at pre-execution stage or not. In that connection, their Lordships of the Supreme Court observed as under: — "To accept Shri Jains present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. In that connection, their Lordships of the Supreme Court observed as under: — "To accept Shri Jains present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal 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 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 their denial to the proposed detenu, but prevents their abuse and the provision of the law in question. 20. 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. 20. 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 petitioner as expeditiously as possible. 21. This still leaves open the 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. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first instance, as stated earlier, the Constitution and the valid law made thereunder do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, 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 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 founds stated above. Thirdly, 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 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 founds 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 for them 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." (14). Therefore, the Honble Supreme Court has firmly laid down that the order of detention cannot be challenged at the pre-execution stage except for the grounds mentioned therein. In the aforesaid case the detention order was challenged by his wife and when the notice was issued for detention of the property and in that context, it was also observed that the detenu cannot secure the order of detention indirectly without submitting to it. Therefore, in these circumstances, the Honble Supreme Court has laid down the para-meters under which the principal detention order can be challenged at the pre-execution stage and the area of challenge has been confined in very narrow compass and those para-meters laid down by the Honble Supreme Court are not satisfied here, the detenu has not submitted to the jurisdiction of the authorities and deliberately absconded and when the proceedings were initiated by the Chief Judicial Magistrate under Sections 82, 83, 84 and 85 Cr.P.C. the petitioner indirectly challenged the order of detention at the pre-execution stage and in view of the recent decision given by 3 Judges such detention cannot be challenged at this stage. (15). (15). Hence, there is no merit in this writ petition and the same is dismissed.