Judgment GUPTA J. ( 1 ) THIS habeas corpus petition has been preferred by Bhanwarlal against whom an order under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (to be hereinafter referred to as the COFEPOSA Act) has been issued on 17-10-96 by the Joint Secretary to the Govt. of India directing his detention in Central Prison, Bombay. The impugned order has not been served on the petitioner. He has invoked jurisdiction of this Court on the facts that he is a permanent resident of village Dhansa in Distt. Jalore and also in possession of agricultural land and that his shop is situate in the village Dhansa within the territorial jurisdiction of this Court. It has been stated that on 10-11-95, the officers of the Enforcement Directorate searched the business premises and residential premises of the petitioner at Bombay in his absence and his nephew was taken in custody and after employing third degree methods statement of his nephew was recorded. When the petitioner reached Bombay, he approached the Enforcement Directorate and complained against the officers for employing third degree methods against his nephew. Thereafter the impugned order has been passed though the petitioner never did Hawala business and no criminal case of complaint ever has been filed against him. The order has been assailed on several grounds including that much delay was caused in issuing the orders after the alleged statement of Ashok Jain, and that the order has not yet been executed. ( 2 ) IN the counter, the respondents have not denied that an order of detention has been issued against the petitioner. However, it was averred that the petitioner should satisfy the Court as to how he derived the knowledge of the detention order and how could he obtain the copy of the detention order along with the grounds of detention. It was denied that the nephew of the petitioner was compelled to give statement, rather summons under S. 40 of the FERA Act, 1973 was issued for his appearance in connection with the seizure of Indian currency and documents from the premises of the petitioner and Ashok Jain gave his statement voluntarily, wherein he disclosed that the documents related to hawala transaction undertaken by the petitioner. It has been averred that the statements of other persons have also been recorded during investigation which indicated that the petitioner was indulged in hawala transactions and that the detention order could not be executed because of the abscondence of the petitioner. Preliminary objections have been raised as to the maintainability of the petition, as the petitioner has not been arrested, and as to the jurisdiction of this Court to entertain the petition as the objectionable activities of the petitioner have been alleged to be in Bombay. ( 3 ) IN reply to the counter, the petitioner reiterating the grounds averred that this is a case of exceptional type where this Court should consider the habeas corpus petition even before the arrest of the petitioner as there is absolutely no basis on which the detention order could be passed. ( 4 ) WE have heard the arguments of Mr. V. D. Kalla, learned Counsel for the petitioner and Mr. J. P. Joshi, learned Counsel appearing for the Union of Indian and have gone through the pleadings and the documents produced before us. ( 5 ) COMING to the preliminary objection, as to the territorial jurisdiction of this Court, first it may be stated that even in the order Annx. 1 one of the addresses of the petitioner has been shown to be of village Dhansa in Distt. Jalore. Mr. Joshi also did not seriously press this objection. It cannot be said that this Court has got no territorial jurisdiction to entertain the writ petition. The second preliminary objection also does not appear to be on sound footing. In this petition, the order of detention has been challenged. It is obviously the writ in the nature of habeas corpus, and therefore, it cannot be accepted that miscellaneous petition should have been filed which was entertainable by the single Bench. In any case, a matter which can be heard by single Bench also can be disposed of by the Division Bench. That being so, it cannot be said that this writ petition is not entertainable. ( 6 ) NOW on merits. The contention of Mr. Kalla was that the petitioner was never prosecuted for smuggling activities or the matters pertaining to the foreign exchange and that even for the solitary instance on which the order has been passed, criminal complaint has not been filed. ( 6 ) NOW on merits. The contention of Mr. Kalla was that the petitioner was never prosecuted for smuggling activities or the matters pertaining to the foreign exchange and that even for the solitary instance on which the order has been passed, criminal complaint has not been filed. He submitted that the order of detention has been made just to bypass a criminal prosecution in which the respondents could not secure conviction of the petitioner and therefore, it is abuse of power of preventive detention. He placed reliance on the case of Shiv Ratan Makim v. Union of India, AIR 1986 SC 610 : (1986 Cri LJ 813 ). He further urged that the observations made in the cases of Addl. Secretary to the Govt. of India v. Alka Subhas Gadiya (1992 (Supp) (1) SCC 496) and N. K. Bafna v. Union of India ( 1992 (3) SCC 512 ) permit the petitioner to assail the order even before the execution of the detention order. He tried to bring his case in the third and fourth category of the cases pointed out by their Lordships of the Supreme Court in the case of Alka Subhas Gadiya (supra ). ( 7 ) MR. Joshi, on the other hand, vehemently contended that the instant case does not come in the category of the cases in which detention order can be challenged without execution. He urged that the mere fact that the petitioner has not been prosecuted in foreign exchange matters, does not mean that no valid order of detention could be passed against him even when there appears material against the petitioner in the statements of the witnesses examined by the enforcement agencies. His submission was that the subjective satisfaction, which is the basis of the detention is that of the detaining authority and not of this Court, and therefore, this Court should not interfere in the detention order, more so, when the petitioner has not surrendered himself before the detaining authority. ( 8 ) WE have given the matter our anxious consideration. The Honble Apex Court in the case Smt. Alka Subhas Gadiya (supra) has considered the question as to whether detention order can be challenged at pre-execution stage and held that the Courts have the power to entertain grievances against any detention order prior to its execution. ( 8 ) WE have given the matter our anxious consideration. The Honble Apex Court in the case Smt. Alka Subhas Gadiya (supra) has considered the question as to whether detention order can be challenged at pre-execution stage and held that the Courts have the power to entertain grievances against any detention order prior to its execution. Their Lordships have identified the grounds on which the Court can interfere with the detention order at the pr-execution stage. Recording a note of caution that such power should not be exercised at pre-execution stage save in exceptional cases, their Lordships identified the five grounds at paragraph No. 30 of the judgment. They are, (1) that the impugned order is not passed under the Act under which it is purported to have been passed (2) that it is said to be executed against a wrong person, (3) that it is passed for a wrong purposes, (4) that it is passed on vague, extraneous and irrelevant grounds, and (5) that the authority which passed it had no authority to do so. ( 9 ) MR. Kalla, frankly conceded that the grounds (1), (2) and (5) are not available in this case. His contention was that the order has been passed for a wrong purpose and that it has been passed on vague, extraneous and irrelevant grounds. ( 10 ) THE detention order indicates that it has been passed for a purpose to prevent the petitioner in future from acting in any manner prejudicial to the augmentation of foreign exchange. The order has been passed on the material that the petitioner was indulged in foreign exchange in Hawala transactions. As such, it cannot be said that the detention order has been passed for a wrong purpose. Obviously, it has been passed for the purpose mentioned in the COFEPOSA Act. It cannot also be accepted that the order has been passed on vague, extraneous and irrelevant grounds. The grounds available to the detaining authority were the statements recorded by the enforcement agency and one of the statements was that of the nephew of the petitioner who disclosed that the petitioner was indulged in the hawala transactions. As such, the ground No. 4 is also not available to the petitioner. As there was material before the detaining authority the order of detention cannot be said to be based on totally extraneous grounds. As such, the ground No. 4 is also not available to the petitioner. As there was material before the detaining authority the order of detention cannot be said to be based on totally extraneous grounds. ( 11 ) IN our view, this fact is not of any significance that the petitioner was never prosecuted for the objectionable activities under the COFEPOSA Act or even complaint has not been filed for the unexplained recovery of Rs. 70,000 from his business premises. This is not the legal position that an order of detention can be passed only when there is a case in which conviction can be secured. The purpose of the prosecution in the criminal law and detention under the preventive detention law is entirely different. While in the former, the trial is held and if the offence is proved beyond reasonable doubt, the offender can be convicted but in the latter case trial is not held and it is not necessary that there should be such a material on which conviction was possible. It is now well settled that an order of detention can be passed even when the detenu was discharged by the criminal court as no sufficient evidence for his conviction could be discovered during investigation. Even acquittal in a case is also no bar to the issuance of detention order. In the case of S. Singh Dayal v. Union of India, AIR 1966 SC 340 : (1966 Cri LJ 305) the petitioner was employed in P. and T. Department. He was arrested for the offence under S. 3 of the Official Secrets Act and produced before the Magistrate but after sometime the Investigating Officer made a report that the petitioner be discharged as no sufficient evidence for his conviction could be discovered during investigation. The petitioner was discharged but immediately after the petitioner came out of the jail, an order of detention under the Defence of India Rules was passed and he was detained in the custody. The order was challenged. One of the contentions was that when the authorities were unable to get sufficient evidence to obtain a conviction and they decided to drop the criminal proceedings, the order of detention was mala fide. The Apex Court repelled the contention and held that a discharge order by itself was not sufficient to lead the inference that the action of the detaining authority was mala fide. The Apex Court repelled the contention and held that a discharge order by itself was not sufficient to lead the inference that the action of the detaining authority was mala fide. It was observed that it may not be possible to obtain a conviction for a particular offence but the authorities may still be justified in ordering detention of a person in view of past activities which will be of a wider range than the mere proof of a particular offence in a Court of law. ( 12 ) SIMILARLY in the case of Mohd. Salim Khan v. C. C. Bose, AIR 1972 SC 1670 : (1972 Cri LJ 1020), it was observed that mere fact that the petitioner was discharged in a criminal case relating to certain incidents does not mean that the order of detention could not be passed in connection with those very incidents. ( 13 ) IN the case of Mohd. Subrati v. State of West Bengal, AIR 1973 SC 207 : (1974 Cri LJ 397), the principle of law has been laid down in following terms :if, therefore, for any reason it is not possible to successfully try and secure the conviction and imprisonment of the persons concerned for their past activities, which amount to an offence, but which are also relevant for the satisfaction of the detaining authority for considering it necessary that a detention order can appropriately be made. The detention order in such a case cannot be challenged on the ground that the person ordered to be detained was liable to be tried for the commission of the offence or offences founded on his conduct, on the basis of which, the detention order has been made or that proceedings under Chapter VIII, Cr. P. C. could be initiated against him. The object, scheme and language of the Act is clearly against the petitioners submission. The Act creates in the authorities concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction of grounds of suspicion of commission in future of acts prejudicial to the community in general. This jurisdiction is different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would, therefore, nor operate as a bar to a detention order, or render it mala fide. The matter is also not res integra. This jurisdiction is different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would, therefore, nor operate as a bar to a detention order, or render it mala fide. The matter is also not res integra. Again at Para No. 6 it was observed as under :"the grievance that the petitioner ought to have been proceeded against in a Court of law and that the investigating agency did not put him on a regular trial for want of evidence can thus be no bar to his detention if the detaining authority under the Act is satisfied that it is necessary to make the order of preventive detention on the grounds contemplated by the Act. " ( 14 ) IT is thus obvious that even in cases in which Investigating Agency did not put a person on a regular trial for want of evidence, detention order could be passed on the grounds contemplated by the Act and even unsuccessful judicial trial or proceedings would not operate a bar to the detention order. In the instant case it is true that the petitioner has not been prosecuted as yet and for the recovery of the amount also a complaint has not been filed against him in Criminal Court. It may also be true that on the material collected by the Enforcement Agency the conviction of the petitioner may not be secured yet it cannot be held that the detention order could not be passed. Obviously, because the COFEPOSA Act creates in the authorities concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds keeping in view the acts prejudicial to community in general. This jurisdiction is different from that of judicial trial in courts for offences and for judicial orders for prevention of offences. ( 15 ) NOW, we shall see how the following observations made in the case of Shiv Ratan Makim (supra) held the petitioner (at Page 816 of Cri LJ) :"if an order of detention is made only in order to bypass a criminal prosecution which may be irksome because of the inconvenience of proving guilt in a Court of law, it would certainly be an abuse of the power of preventive detention and the order of detention would be bad. "the observations are to be read in the context in which they were made. Their Lordships in that case did not accept the contention of the petitioner that the order of detention was passed just to bypass the criminal prosecution or that there was abuse of the power of preventive detention. Their Lordships have laid down the principle in the following words. The contention of the petitioner was that criminal prosecution cannot be circumvented or short-circuited by ready resort to preventive detention and the power of detention cannot be used to subvert, supplant or substitute the punitive law of the land. This argument completely overlooks the fact that the object of making an order of detention is preventive while the object of a criminal prosecution is punitive. ( 16 ) AFTER laying down the aforesaid principle their Lordships approved the observations made in the case of Mohd. Subrati (supra) and held in clear terms that the failure of the criminal prosecution can be no bar to the making of an order of detention, a fortiori the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. ( 17 ) IT is thus obvious that even if a criminal prosecution fails and order of detention is made, it would not invalidate the order of detention. Their Lordships made the above observations envisaging the extreme situation but at the same time observed that the object of making the order of detention is to prevent the commission, in future, of activities injurious to the community and it would be perfectly legitimate exercise of power to make the order of detention. In this view of the matter, in our opinion, the observations quoted above do not help the petitioner in this case. The emphasis in the judgment is the object for which the order is made. If the object is to prevent the commission of the future activities, which are injurious to the community, the detention cannot be held to be bad but if the object in passing the order is different than envisaged in the Act, it may be held to be bad. The instant case is not the one in which it can be said that the object of the order was not to prevent the petitioner from indulging in hawala transactions. The instant case is not the one in which it can be said that the object of the order was not to prevent the petitioner from indulging in hawala transactions. ( 18 ) FOR the foregoing reasons we are unable to accept the contention that any of the grounds mentioned in Para 30 in the case of Alka Subhas Gadia (supra) are available to the petitioner in this case. This is obviously not the case of exceptional nature in which this Court should intervene before the petitioner surrenders before the authorities. ( 19 ) CONSEQUENTLY, this habeas corpus petition is dismissed. Petition dismissed.