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2002 DIGILAW 90 (MAD)

Rathna Mohammed v. Joint Secretary to Government Ministry of Finance

2002-02-11

P.SHANMUGAM, P.THANGAVEL

body2002
Judgment : P. Shanmugham, J. 1. Both these writ petitions can be disposed of by a common order. 2. The petitioners pray for a mandamus to forbear the respondents from detaining or arresting the petitioner in W.P.No.5737 of 2001 and petitioner's brother Idris Marakayar in W.P.No.5738 of 2001 in pursuance of the orders of detention issued by the first respondent under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 3. The detention orders were passed sometime in the year 193 and are yet to be executed. The respondents could not effect the orders of detention. It is also conceded that both the writ petitioners have earlier filed writ petitions and subsequently withdrew the same, but they have not given the numbers of those writ petitions. By referring to the judgment of the Honourable Supreme Court in Union of India v. Munesh Suneja, 2001 SCC (Cri.) 433, learned counsel for the petitioners submits that in matters of pre-detention cases, the interference of the Courts is not called for in reference to the ground of delay sand therefore, he submits that he may not have much to say except to seek for an observation to direct the authorities to consider whether the presence of the petitioner in W.P.No.5737 of 2001 and the petitioners' brother Idris Marakayar in W.P. No.5738 of 2001 is still necessary. 4. Learned Additional Central Government Standing Counsel Mr.K. Kumar, appearing for the respondents while seriously opposing the writ petitions submits that the petitioners deserve no consideration in the hands of this court since the petitioners have come with a false address and the order of detention still could not be enforced on their absconding. He therefore submits that the petitions having filed earlier writ petitions and withdrew the same and did not even give the number of those writ petitions, the present writ petitions may be dismissed outright with costs. 5. We have seen that the Supreme Court in Muneesh Suneja's case, 2001 SCC (Cri.) 433, has held that the question of delay will not arise in pre-detention cases. The said aspect has to be borne in mind by the High Court while considering such kind of applications and see whether mere delay either in passing the order of detention or execution thereof is not fatal except whether the same stands unexplained. The said aspect has to be borne in mind by the High Court while considering such kind of applications and see whether mere delay either in passing the order of detention or execution thereof is not fatal except whether the same stands unexplained. In Union of India v. Parasmal Rampuria, 1998 (8) SCC 402 , it was held that the High Court is not justified in granting interim orders against the detentions who filed writ petitions without surrendering and after surrendering it will be open to the detenu to amend his writ petition and take all permissible legal grounds to challenge the detention order. In Writ Appeal No.808 of 1999 dated 15.7.1999 one of us was a party (P. Thangavel, J.) the Division Bench has taken a view that in case where search was made but the appellant got statutory bail but he did not appear before the concerned authority rather he remains absconded and later on bail was cancelled, order under Section 3(ii) was published directing the appellant to appear within seven days before the fifth respondent. In those circumstances it was held that the petitioner cannot take advantage of any of the decisions cited by him and the detention order cannot be held to be vitiated on the ground delay of vagueness. Their Lordships have held in that case that the petition was filed only with a view to avoid arrest. These decisions would squrely apply to the facts of the present case. The order of detention could not be given effect to and the petitioners moved writ petitions with false address and withdrew the same and filed the present writ petitions. The writ petitioners do not deserve any consideration. Hence the writ petitions are dismissed. As rightly pointed out, in the light of the attitude of the petitioners, heavy costs has to be imposed and accordingly we impose Rs.5000 (Rupees five thousand only) on each of the petitioners, as costs. The writ petitions are dismissed with costs. Consequently, W.M.P.Nos.8138 and 8139 of 2001 for injunction, are dismissed.