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2003 DIGILAW 153 (DEL)

RENU MAHANT v. UNION OF INDIA

2003-02-11

B.A.KHAN, R.S.SODHI

body2003
R. S. SODHI ( 1 ) BY this writ petition, the petitioner, Smt. Renu Mahant, seeks to challenge the order of detention No. F. No. 673/27/2002-Cus. VIII, Govt. of India, Ministry of Finance, Department of Revenue, dated June 28, 2002 issued by the 2nd respondent against the petitioner under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act ), at pre-detention stage on the ground that the case of the petitioner is covered by Exceptions (i), (iii) and (iv) in Additional Secretary, Govt. of India vs. Smt. Alka Subhash Gadia and Another, 1992 Suppl (1) SCC 496. Learned counsel for the petitioner argued that the order of detention is bad for the reasons that the order is in mala fide exercise of powers issued for collateral purpose, is violative of Articles 14 and 21 of the Constitution of India. ( 2 ) THE detention order which, the petitioner claims, was obtained from the case file of the Magistrate after inspection, reads as under : "f. NO. 673/27/2002-CUS. VIII government of India ministry of Finance department of Revenue central Economic Intelligence Bureau 6th Floor, b Wing, Janpath Bhawan, Janpath ******* new Delhi dated 28th June, 2002. O R D E R whereas, I, Somnath Pal, Joint Secretary to the Government of India, specially empowered under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), am satisfied with respect to the person known as Smt. Renu Mahant, W/o Shri Harish Kumar, R/o RZ-85, Bhawani Kunj, Behind Pocket D-II, Vasant Kunj, New Delhi, that with a view to preventing her from smuggling goods in future, it is necessary to make the following order: now, therefore, in exercise of the powers conferred by Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that the said Smt. Renu Mahant, be detained and kept in custody in the Central Jail, Tihar, New Delhi. Sd- (with seal ). (Somanth Pal) Joint Secretary to the Government of India" ( 3 ) THE learned Additional Solicitor General, Mr. K. K. Sud, appearing on behalf of the respondents contended that the petitioner would have no right to approach this court complaining of the detention order which had yet to be served on her. Sd- (with seal ). (Somanth Pal) Joint Secretary to the Government of India" ( 3 ) THE learned Additional Solicitor General, Mr. K. K. Sud, appearing on behalf of the respondents contended that the petitioner would have no right to approach this court complaining of the detention order which had yet to be served on her. He contended that interfering at this stage would amount to permitting the petitioner to bye-pass the procedure established by law and would defeat the very purpose of making the order of detention. ( 4 ) TAKING the submission of learned Additional Solicitor General in the first instance, reference may be had to the decision of the Supreme Court in Smt. Alka Subhash Gadia s case (supra) where the court has, while elaborately discussing the law, held that powers of the High Court under Article 226 of the Constitution and the authority of the Supreme Court under Article 32 are not subject to any exceptions and it cannot be contended that a citizen cannot move the High Court or the Supreme Court to invoke their jurisdiction even in cases where Fundamental Rights have been violated. The judicial powers conferred on the High Court are meant for protection of the citizens Fundamental Rights and that judicial review of legislation or of any order passed by an administrative authority is a part of the basic structure of the Constitution, hence no order passed under any law including the preventive detention is above judicial scrutiny. Further, the Supreme Court has held that having regard to the distinctive character of preventive detention apart from punitive detention, the restriction placed on a person preventively detained must be minimal. Any act which damages or injures or interferes with the use of any limb including of the person either permanently or even temporarily would be within the ambit of Article 21 of the Constitution so also every act which offends against or impairs human dignity would amount to deprivation pro tanto of the right to live and would necessitate the courts intervention. It may happen that an order of detention is based without there being any statute to support it or without complying with the provisions of the statute, if any. The order may also be passed against a wrong person or for a wrong purpose. It may happen that an order of detention is based without there being any statute to support it or without complying with the provisions of the statute, if any. The order may also be passed against a wrong person or for a wrong purpose. To insist in such a case that the person against whom the order is passed must first submit to the same and lose his valuable liberty before approaching the court is to insist upon an unreasonable condition. Articles 14, 19 and 21 confer on a person, likely to be affected by such order, an implicit right to approach the court at any time and the courts cannot refuse relief to such person by insisting that he must first surrender his liberty. In this view of the matter, we hold that the writ petition is maintainable. ( 5 ) HAVING answered the question of maintainability, we may now deal with the submissions of learned counsel for the petitioner who submitted that the order of detention passed against the petitioner is not under the Act and that it is passed for a wrong purpose. It is based on vague, extraneous and irrelevant grounds. He submitted that the petitioner having resigned as Director of the Company is deemed to be no longer in control of activities thereof, therefore, the purpose of detention which is to prevent her from smuggling goods in future no longer exists. ( 6 ) WE have carefully considered the arguments advanced by learned counsel for the petitioner but find no force in the same. To hold that the detention order is bad at this stage based on the submission made by learned counsel for the petitioner, would not be just inasmuch as there is nothing on record to show that the detention order is based only on the grounds mentioned by the learned counsel. Also merely because the petitioner has resigned from Directorship of the Company, it cannot be said that she is not in control of the Company or is not capable of continuing smuggling activities. It is difficult to come to a conclusion even prima facie, without going into the grounds of detention and material upon which they have been based that the detention is for a collateral purpose, is based on vague, extraneous or irrelevant grounds. . The mala fides alleged cannot be established at this stage without any material on record. It is difficult to come to a conclusion even prima facie, without going into the grounds of detention and material upon which they have been based that the detention is for a collateral purpose, is based on vague, extraneous or irrelevant grounds. . The mala fides alleged cannot be established at this stage without any material on record. It is likely that the allegations of mala fide are made light heartedly or without justification. Judicial approach necessarily postulates that no conclusion can be reached even prima facie as to mala fide unless complete material is placed before the court. It would, therefore, not be safe, sound or reasonable to come to the conclusion that there may be some substance in the allegation of mala fide at this stage. It is no doubt true that the detenu would be detained without trial and so the court would inevitably be anxious to protect the individual liberty of the citizens on grounds which are justiciable and within the limits of jurisdiction, but while upholding the claim of individual liberty within the limits permitted by law, it would be unwise to ignore the object which the order of detention intends to serve. There is no material before us to come even to a prima facie conclusion that the detention order is not passed under the Act or is passed for a purpose other than permissible; based on vague, extraneous or irrelevant grounds. ( 7 ) FROM a reading of the order of detention dated June 28, 2002, it cannot be said that the same is not passed under the Act. In the absence of any other material which may require consideration, we decline to interfere with the order of detention dated June 28, 2002. Criminal Writ Petition No. 13 of 2003 is, therefore, dismissed.