RAMESH CHAND BHALLA v. UNION OF INDIA — 1995 DIGILAW 806 (DEL)

ANIL DEV SINGH ( 1 ) THIS is a writ petition whereby the petitioner challenges the order of his detention dated September 28,1988 passed against him by the Joint Secretary to the Government of India under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA") at a pre detention stage. ( 2 ) A batch of writ petitions including the instant petition and a Letters Patent Appeal were referred to the Full Bench for the purpose of examining the correctness of the decision of the Division Bench in Subhash Chander Vs. 17. 0. 1. and Ors. 43 (1991) DLT 517. In that case the Division Bench held that the delay in execution of the detention order would be a ground upon which the same could be called in question by the person against whom it is made even before the execution thereof. The Division Bench was of the view that apart from the five categories mentioned in the decision of the Supreme Court in the case of The Additional Secretary to the Government of India and Ors Vs. Smt. Alka Subhash Gadia and Another JT 1991 (1) SC 549 there could be other grounds as well on the basis of which the detention order at a pre-execution stage could be challenged. The Full Bench on October 20,1994 held that the delay in passing a detention order or delay in execution thereof falls outside the five categories mentioned in the case of Alka Subhash Gadia (Supra ). Relying on the decision of the Supreme Court in Subhash Muljimal Gandhi Vs. L. Himingliana and another JT 1994 (5) SC 358 the Full Bench further held that interference with the detention order at a pre execution stage is limited to the five contingencies mentioned in Alfca Subash Gadia s case or other contigencies of the same species only. The Full Bench, theorefore overruled the decision of the Division Bench in Subhash Chandra s case (Supra) and sent back the writ petitions and the appeal to the Division Bench for disposal in the light of the principles laid down by them. At this stage it will be convenient to notice the facts set out in the writ petition. ( 3 ) ACCORDING to the petitioner, the detention order is related to an incident of May 24, 1988. At this stage it will be convenient to notice the facts set out in the writ petition. ( 3 ) ACCORDING to the petitioner, the detention order is related to an incident of May 24, 1988. On that date, Indian currency amounting to Rs. 2,60,000. 00 was seized from one Om Prakash Gandhi, who was intercepted by the officers of the Central Economic Intelligence Bureau near the cremation ground at Jhandewalan. New Delhi. When questioned he is said to have stated that the money received from him was given by the petitioner in lieu of 10,000 US dollars and 3000 pounds received by the latter from him. The petitioner as well as Om Prakash Gandhi were arrested and produced before the concerned Magistrate on May 25,1988 when. they were remanded to judicial custody. However, the petitioner was released on bail on May 30,1988. Thereafter the detention order was passed on September 28,1988. It also appears that adjudication proceedings were initiated against the petitioner and two others under Section 15 (1) of the Foreign Exchange Regulation Act, 1973 vide memo No. T-4/31-D/89 dated May 22, 1989. It is claimed that the petitioner appeared before the Deputy Director (Enforcement) and Assistant Director, the sponsoring authorities, on number of occasions, namely, November 27,1991, December 26,1991. August 10,1992, October 14, 1992, November 13, 1992,december 11, 1992, January 25,1993 and November 25, 1993 but the order of detention was not executed. ( 4 ) ON the basis of the alleged unexplained delay in execution of the detention order, Mr. Chawla, learned counsel for the petitioner submitted that the order of detention was passed for a wrong purpose and as such was covered by the third category of Alka Subhash Gadia. It may be mentioned that in the Full Bench decision rendered by this court on October 20,1994 a similar contention was advanced which was noticed at pages 3 and 11 of the judgment as per below: "according to the petitioners, on account of the delay in passing the order or the delay in the execution of the order, the purpose of detention has gone and the nexus between the grounds of detention and the detention order stands snapped and the petitioner can challenge the order without surrendering. It is argued that the case comes within the third ground stated in ALKA SUBHASH GADIA case, namely, that the dentention order is "passed" for a wrong purpose. It is argued that the case comes within the third ground stated in ALKA SUBHASH GADIA case, namely, that the dentention order is "passed" for a wrong purpose. . . . . . . . . . . . . . . ". "it is argued for the petitioners that once there is unexplained delay, the nexus between the grounds and the order snaps and the "purpose" of preventive detention is now no longer served and therefore the case would come under the third contigency of "wrong purpose". It is also argued for petitioners by referring to some rulings of the Supreme Court that unexplained delay makes the grounds "irrelevant" at a later date and the case would come under the fourth contigency". ( 5 ) THE Full Bench dealt with the aforesaid argumen t in the following manner: "now if we read the third and fourth contigencies mentioned in ALKA SUBHASH GADIA closely, it will be seen that the Supreme Court said that the order must be proved to have been passed for a wrong purpose or on irrelevant, vague or extraneous grounds. In other words these contigencies three and four must relate to certain vitiating factors existing at the time of the passing of the detention order. They do not. in our opinion, relate to situations where at the time when the order was passed, it was for a proper purpose or was based upon relevant grounds but where, by lapse of time, the purpose is not served or becomes irrelvant? In other words, contigencies three and four in ALKA SUBHASH GADIA do not relate to situations where by sheer lapse of time. either in serving the detention order or in the passing of the detention order, the nexus between the grounds and the order breaks down at a later point of time. Passing an order for a "wrong purpose" or on "vague, irrelevant and extraneous grounds" is different from a situation where the original order is for a valid purpose but has become wrong or irrelevant by lapse of time. The important characteristic of the "species" referred to in ALKA SUBHASH GADIA is that. at the time the order is passed, it must suffer from the infirmities mentioned in contigencies three and four. The important characteristic of the "species" referred to in ALKA SUBHASH GADIA is that. at the time the order is passed, it must suffer from the infirmities mentioned in contigencies three and four. The cases where, the order originally passed, falls outside the contigencies three and four but subsequently on account of delay, the nexus between the grounds of detention and the detention order gets snapped, cannot be assimilated into the five species of orders mentioned in ALKA SUBHASH GADIA. We are, therefore, of the view that cases of unexplained delay in passing the order of detention or in the execution of the order, were not intended by the Supreme Court to fall within the third and fourth contigencies in ALKA SUBHASH GADIA". (Emphasis supplied) ( 6 ) THUS it is obvious that the Full Bench laid down that in a case where the detention order is challenged at a pre detention stage, the unexplained delay in executing the order of detention would not be covered by the five contigencies mentioned in ALKA SUBHASH GADIA. Therefore having regard to the decision of the Full Bench the delay in execution of the detention order, assuming that the petitioner appeared before the sponsoring authority on number of occasions, though this fact is denied in the counter affidavit, the detention order cannot be interferred with as the unexplained delay in execution of the detention order falls outside the five categories of Alka Subhash Gadia s case. ( 7 ) LEARNED counsel for the petitioner referred to the decisions of the Supreme Court in SK. Nizamuddin Vs. State of west Bengal AIR 1974 SC 2353 ,shafiq Ahmad Vs. district Magistrate, Meerut and. others JT 1989 (3) SC 659,t. A. Abdulrahman Vs. State of Kerala and others 1990 SCC (Crl) 76 and Mahomed Masoom and another Vs. Union of India and another 1979 Crl. Law Journal 365 in support of the contention that delay in executing the detention order casts doubt on the genuineness of the subjective satisfaction of the detaining authority thus exhibiting that the order was passed for a wrong purpose. We find that these very decisions with the exception of Nizamuddin s case (Supra) were cited before the Full Bench. Law Journal 365 in support of the contention that delay in executing the detention order casts doubt on the genuineness of the subjective satisfaction of the detaining authority thus exhibiting that the order was passed for a wrong purpose. We find that these very decisions with the exception of Nizamuddin s case (Supra) were cited before the Full Bench. But the Full Bench noticed that these decisions will have no application as the detention orders in those cases were challenged after their execution and they were not dealing with pre- detention cases like the case in hand. ( 8 ). Following the decision of the Full Bench delay in execution of the detention order is not a ground on which the order of detention can be challenged- at a pre detention stage as such a ground falls outside the five categories mentioned in Alka Subhash Gadia or other speices of the same categories contemplated by Subhash Mulimal Gandhi s case (Supra ). A case of passing an order for a wrong purpose is different from the one where it becomes wrong by lapse of time in executing the detention order. The latter situation would not be covered by the third category ofalka Subhash Gadia a case (Supra ). ( 9 ) IN view of the aforesaid discussion, the writ petition has no merit and the same is dismissed.