Full Judgment Text
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CASE NO.:
Appeal (crl.) 86 of 1999
PETITIONER:
Union of India & Ors.
RESPONDENT:
Vidya Bagaria
DATE OF JUDGMENT: 05/05/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
The Union of India, Joint Secretary COFEPOSA,
Commission of Customs-II, Madras and State of Tamil Nadu
question the legality of the judgment rendered by a
learned Single Judge of the Punjab and Haryana High
Court quashing order of detention dated 19.12.95 passed
in respect of one Ratan Bagaria under Section 3(1) of
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to
as ’the COFEPOSA Act’). Before the order of detention
could be served on Shri Ratan Bagaria, his wife Smt.
Vidya Bagaria, the respondent herein, filed Habeas
Corpus writ petition under Article 226 of the
Constitution of India, 1950 (in short ’the
Constitution’) praying for issuance of writ or any other
order quashing the order of detention passed by
appellant no.2 herein who was the respondent no.2 in the
writ petition. Several grounds touching legality of
grounds on which the order of detention was passed were
raised in the writ petition. The present appellants
filed a counter affidavit. Primarily an objection was
taken regarding the maintainability of the writ
application before the order of detention was actually
served and the detenu taken into custody. The various
stands regarding the legality of the grounds of
detention as have been raised by the writ petitioner
were also refuted and it was submitted that grounds
stated were germane and relevant for directing
detention. The High Court elaborately dealt with the
legality of the grounds on which the order of detention
was founded. But as regards the preliminary objection
about the maintainability of the writ petition even
before the order of detention was actually served, the
same was dealt with and disposed of in a very casual
and summary manner, observing without even properly
adverting to the law laid down by this Court, brought
specifically to its notice as follows:
"Before I proceed further into the
matter, I may say that the case law
which has been relied upon by Mr. Sharma
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is off the point."
The writ petition was allowed holding that grounds
indicated in the order of detention were not legally
sustainable and order of detention was unsustainable.
Learned counsel for the appellants submitted that
the High Court has not dealt with the most vital aspect
regarding the very maintainability of the writ petition
even before the order of detention was served and the
detenu incarcerated in prison in a very cryptic manner
before rejecting the plea.
Per contra, learned counsel for the respondent
submitted that the reasonings given by the High Court
clearly indicate that the writ petition was maintainable
and the legality of grounds were also duly tested. No
infirmity therefore can be found with the order of the
High Court. In any event, it was submitted that the order
of detention was passed nearly nine years back and the
purported apprehensions and the alleged objectionable
activities of Mr. Bagaria have no relevance presently.
The question whether the detenu or any one on his
behalf is entitled to challenge the detention order
without the detenu submitting or surrendering to it has
been examined by this Court on various occasions. One of
the leading judgments on the subject is Additional
Secretary to the Govt. of India and Ors. v. Smt. Alka
Subhash Gadia and Anr. case ((1992 Supp (1) SCC 496).
In para 12 of the said judgment, it was observed by this
Court as under:
"12. This is not to say that the
jurisdiction of the High Court and the
Supreme Court under Articles 226 and 32
respectively has no role to play once
the detention \026punitive or preventive-
is shown to have been made under the law
so made for the purpose. This is to
point out the limitations, which the
High Court and the Supreme Court have to
observe while exercising their
respective jurisdiction in such cases.
These limitations are normal and well
known, and are self-imposed as a matter
of prudence, propriety, policy and
practice and are observed while dealing
with cases under all laws. Though the
Constitution does not place any
restriction on these powers, the
judicial decision have evolved them over
a period of years taking into
consideration the nature of the
legislation or of the order or decision
complained of, the need to balance the
rights and interests of the individual
as against those of the society, the
circumstances under which and the
persons by whom the jurisdiction is
invoked, the nature of relief sought,
etc. To illustrate these limitations,
(i) in the exercise of their
discretionary jurisdiction the High
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Court and the Supreme Court do not, as
Courts of appeal or revision, correct
mere errors of law or of facts, (ii) the
resort to the said jurisdiction is not
permitted as an alternative remedy for
relief which may be obtained by suit or
other mode prescribed by statute. Where
it is open to the aggrieved person to
move another Tribunal or even itself in
another jurisdiction for obtaining
redress in the manner provided in the
statute, the Court does not, by
exercising the writ jurisdiction, permit
the machinery created by the statute to
be by-passed; (iii) it does not
generally enter upon the determination
of questions which demand an elaborate
examination of evidence to establish the
right to enforce which the writ is
claimed; (iv) it does not interfere on
the merits with the determination of the
issues made by the authority invested
with statutory power, particularly when
they relate to matters calling for
expertise, unless there are exceptional
circumstances calling for judicial
intervention, such as, where the
determination is mala fide or is
prompted by the extraneous
considerations or is made in
contravention of the principles of
natural justice of any constitutional
provision, (v) the Court may also
intervene where (a) the authority acting
under the concerned law does not have
the requisite authority or the order
which is purported to have been passed
under the law is not warranted or is in
breach of the provisions of the
concerned law or the person against whom
the action is taken is not the person
against whom the order is directed, or
(b) when the authority has exceeded its
power or jurisdiction or has failed or
refused to exercise jurisdiction vested
in it; or (c) where the authority has
not applied its mind at all or has
exercised its power dishonestly or for
an improper purpose; (vi) where the
Court cannot grant a final relief, the
Court does not entertain petition only
for giving interim relief. If the Court
is of opinion, that there is no other
convenient or efficacious remedy open to
the petitioner, it will proceed to
investigate the case on its merit and if
the Court finds that there is an
infringement of the petitioner’s legal
rights, it will grant final relief but
will not dispose of the petition only by
granting interim relief (vii) where the
satisfaction of the authority is
subjective, the Court intervenes when
the authority has acted under the
dictates of another body or when the
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conclusion is arrived at by the
application of a wrong test or
misconstruction of a statute or it is
not based on material which is of a
rationally probative value and relevant
to the subject matter in respect of
which the authority is to satisfy
itself. If again the satisfaction is
arrived at by taking into consideration
material, which the authority properly
could not, or by omitting to consider
matters, which it sought to have, the
Court interferes with the resultant
order. (viii) In proper cases the Court
also intervenes when some legal or
fundamental right of the individual is
seriously threatened, though not
actually invaded."
In Sayed Taher Bawamiya v. Joint Secretary to the
Govt. of India and Ors. (2000 (8) SCC 630), it was
observed by this Court as follows:
"This Court in Alka Subhash’s case
(supra) was also concerned with a matter
where the detention order had not been
served, but the High Court had
entertained the petition under Article
226 of the Constitution. This Court held
that equitable jurisdiction under
Article 226 and Article 32 which is
discretionary in nature would not be
exercised in a case where the proposed
detenu successfully evades the service
of the order. The Court, however, noted
that the Courts have the necessary power
in appropriate case to interfere with
the detention order at the pre-execution
stage but the scope for interference is
very limited. It was held that the
Courts will interfere at the pre-
execution stage with the detention
orders only after they are prima facie
satisfied:
(i) that the impugned order is
not passed under the Act 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.
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As we see it, the present case does
not fall under any of the aforesaid
five exceptions for the Court to
interfere. It was contended that
these exceptions are not exhaustive.
We are unable to agree with this
submission. Alka Subhash’s case
(supra) shows that it is only in
these five types of instances that
the Court may exercise its
discretionary jurisdiction under
Article 226 or Article 32 at the
pre-execution stage. The appellant
had sought to contend that the order
which was passed was vague,
extraneous and on irrelevant grounds
but there is no material for making
such an averment for the simple
reason that the order of detention
and the grounds on which the said
order is passed has not been placed
on record inasmuch as the order has
not yet been executed. The appellant
does not have a copy on the same,
and therefore, it is not open to the
appellant to contend that the non-
existent order was passed on vague,
extraneous or on irrelevant
grounds".
This Court’s decision in Union of India and Ors. v.
Parasmal Rampuria (1998 (8) SCC 402) throws considerable
light as to what would be the proper course for a person
to adopt when he seeks to challenge an order of
detention on the available grounds like delayed
execution of detention order, delay in consideration of
the representation and the like. These questions are
really hypothetical in nature when the order of
detention has not been executed at all and the detenu
has avoided service and incarceration and when challenge
is sought to be made at pre-execution stage. It was
observed as under:
"In our view, a very unusual
order seems to have been passed in a
pending appeal by the Division Bench
of the High Court. It is challenged
by the Union of India in these
appeals. A detention order under
Section 3(1) of the COFEPOSA Act was
passed by the authorities on
13.9.1996 against the respondent.
The respondent before surrendering
filed a writ petition in the High
Court on 23.10.1996 and obtained an
interim stay of the proposed order,
which had remained un-served. The
learned Single Judge after hearing
the parties vacated the ad interim
relief. Thereafter, the respondent
went in appeal before the Division
Bench and again obtained ad interim
relief on 10.1.1997 which was
extended from time to time. The writ
appeal has not been still disposed
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of.
When the writ petition was
filed, the respondent had not
surrendered. Under these
circumstances, the proper order
which was required to be passed was
to call upon the respondent first to
surrender pursuant to the detention
order and then to have all his
grievances examined on merits after
he had an opportunity to study the
grounds of detention and to make his
representation against the said
grounds as required by Article 22(5)
of the Constitution."
In Sunil Fulchand Shah v. Union of India and Ors.
(2000 (3) SCC 409) a Constitution Bench of this Court
observed that a person may try to abscond and thereafter
take a stand that period for which detention was
directed is over and, therefore, order of detention is
infructuous. It was clearly held that the same plea even
if raised deserved to be rejected as without substance.
It should all the more be so when the detenu stalled the
service of the order and/or detention in custody by
obtaining orders of Court. In fact, in Sayed Taher’s
case (supra) the fact position shows that 16 years had
elapsed yet this Court rejected the plea that the order
had become stale.
These aspects were once again highlighted recently
in Hare Ram Pandey v. State of Bihar and Ors. (2003 (10)
JT 114) and Union of India v. Amritlal Manchanda and
Ors. (2004 (3) SCC 75) after an elaborate and exhaustive
consideration of the matter.
The High Court does not appear to have considered
the case in the background of whether any relief was
available to the writ petitioner even before the order
of detention was executed. The cryptic observation that
the decision " ms off the point", seems to be not only
evasive but lacks judicious application of mind.
Consequently, the order is liable to be set aside. It is
open to the respondent to surrender to custody as was
observed in Parasmal Rampuria’s case (supra) and take
such pleas as are available in law to the person
concerned. These aspects were once again sufficiently
highlighted in Amrit Lal Manchanda’s case (supra).
The appeal is allowed. The order of the High Court
is set aside and the writ petition filed in the High
Court shall stand dismissed.