IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No. 812 of 2009(V) ------------------------ PETITIONER(S): --------------- RAJESH BHARADHWAJ, AGED 46 YEARS, S/O.S.S.BHARADHWAJ, HOUSE NO.2357, SECTOR 27C, CHANDIGARH. BY MR.M.K.DAMODARAN, SENIOR ADVOCATE MR.ALAN PAPALI, ADVOCATE MR.SOJAN MICHEAL, ADVOCATE MR.GILBERT GEORGE CORREYA, ADVOCATE RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME (SSA) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE (CENTRAL ECONOMIC INTELLIGENCE BUREAU), 6TH FLOOR, B WING, JANAPATH BHAVAN, NEW DELHI 110 001. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R2-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.812 of 2009 --------------------------------- Dated, this the 12th day of January, 2009 J U D G M E N T Challenge in this writ petition is against Ext.P23 order passed by the 1st respondent, exercising its power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Section 3(1) of the Act provides as follows :- “3. Power to make orders detaining certain persons.- (1) The Central Government or a State Government, or any Officer of the Central Government, now below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.” 2. In so far as the facts of this case are concerned, the petitioner states that on 23rd and 25th April, 2008, the Officers of the Directorate of Revenue Intelligence (hereinafter referred to as DRI in short) searched his house at Chandigarh and summons was served on him requiring him to appear before the DRI at Calicut on WP(C) No.812/2009 -2- 26/04/2008. It is stated that again summons was served on 30/04/2008, calling upon the petitioner to appear on 15/05/2008, for an enquiry under Section 53(1) of the NDPS Act in relation to the seizure of 11 Kgs. of Heroin at Calicut. Thereupon, the petitioner requested that he be permitted to appear before the Officers of the DRI at Chandigarh. Later, Ext.P9 was served on the petitioner under Section 67 of the NDPS Act, calling upon him to appear before the Joint Director, Directorate of Revenue Intelligence at Ludhiana. The petitioner submits that on 12/06/2008, he appeared before the DRI at Ludhiana and was questioned. Thereafter, Ext.P10 notice of arrest was pasted on the gate of his house. 3. The petitioner submits that even at that stage he was unaware about the facts, which led to the proceedings against him, and therefore he came to Kerala and made enquiries, when he became aware that Ext.P11 occurrence report in O.R.No.NDPS/1/2008 was registered by the DRI. It is stated that subsequently the Investigating Officer made Ext.P12 report on 16/06/2008, arraying the petitioner as the 8th accused in the case. The petitioner relies on Exts.P4 and P5 and Exts.P13 to P19 to contend that the story of his involvement in the case is false. Be WP(C) No.812/2009 -3- that as it may, the petitioner appears to have moved for bail before the District and Sessions Court and that was rejected. Thereafter, he moved this Court for bail resulting in Ext.P22 order, recording the undertaking of the Department. It is stated that while his bail application is thus pending with the undertaking not to arrest him, Ext.P23 order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 was issued ordering his detention. It is this order which is under challenge in this writ petition. 4. Although the settled position of law is that an order of detention cannot be challenged at its pre-execution stage, the petitioner seeks to sustain the challenge in this writ petition relying on the judgment of the Apex Court in Deepak Bajaj v. State of Maharashtra & Anr . (Judgments Today 2008(11) SC 609). In the said judgment, though the Apex Court has recognized that the settled position of law is that at pre-execution stage, an order of detention cannot be challenged before Court, referring to the judgment in Additional Secretary to the Government of India & Ors. v. Smt. Alka Subhash Gadia & Anr. (1992 (Suppl.1)SCC 496), the Apex Court held that in exceptional cases, such challenge is WP(C) No.812/2009 -4- sustainable. Proceeding further, the Apex Court held that if a person is able to satisfy the Court that the order of detention is clearly illegal, the Court should not stay its hands and should entertain the challenge. Thereafter, upholding the contention of the petitioner that the relevant documents were deliberately not produced by the Sponsoring Authority before the Detaining Authority, the Apex Court quashed the order of detention. 5. The question is whether, the principles laid down in the aforesaid judgment has any application to the facts of this case. In paragraph 30 of the judgment in Smt. Alka Subhash Gadia's case, it has been held as follows:- “30. As regard his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years WP(C) No.812/2009 -5- evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Article 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri.Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self- restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri.Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although WP(C) No.812/2009 -6- such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under 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, extravenous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse, and the perversion of the law in question.” In Deepak Bajaj's case, the exception indicated above have been held to be only illustrative and not exhaustive and it is to be seen whether the petitioner's case is an exceptional one. Though an averment has been made that relevant documents were not produced by the Sponsoring Authority before the Detaining Authority, unlike in the Deepak Bajaj's case as can be seen from paragraphs 35 to 37 thereof, the petitioner herein has not even stated, what were the relevant documents which were available before the Sponsoring Authority, and which were not produced before the Detaining Authority. That apart, the ground pleaded in this writ petition would show that the contention is more about the WP(C) No.812/2009 -7- inadmissibility of the documents, which were produced by the Sponsoring Authority and considered by the Detaining Authority. 6. Yet another aspect, which needs to be noticed is that the main argument of the petitioner is that the Senior Intelligence Officer of the DRI has cooked up evidence against him for the reason that following the search that was conducted in his house on 23rd and 25th April, 2008, a complaint has been filed by his wife before the Superintendent of Police, Chandigarh and that the petitioner himself had made a complaint before the National Human Rights Commission. It is on this basis it was argued that the order was passed for a wrong purpose. Two aspects are to be noticed here. First of all, the petitioner has not pleaded that the Senior Intelligence Officer of the DRI had any preexisting malafide motive to implicate the petitioner. If that be so, malafide motive cannot be attributed against the search that was conducted. Apart from this, it has to be stated that although several allegations have been raised against the Senior Intelligence Officer of the DRI, the petitioner has neither impleaded the Officer, nor even disclosed his name in the writ petition. Even the Directorate of Revenue Intelligence is not impleaded in this writ petition. For these reasons, WP(C) No.812/2009 -8- I am not in a position to take cognizance of the plea of malafide raised in this writ petition. 7. Yet another disturbing aspect to be stated is that the case of the petitioner is that Ext.P23 order of detention has been passed at a time when, the DRI had undertaken before this Court that the petitioner will not be arrested. The relevant pleading in this behalf is at paragraph 24 of the writ petition. The learned counsel also referred me to Ext.P22 order passed by this Court. But on verification of the case file in Bail Application No.5824/2008, I find that the undertaking given by the DRI, has been lifted on 01/12/2008 and an order to that effect has been passed by the learned Judge. Therefore, this argument is not only factually incorrect but also does not survive. 8. It is clarified that the findings herein are only to decide the maintainability of this writ petition at the pre-execution stage of Ext.P23 and should not be construed on pronouncement on the merits of the order. The writ petition fails, and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg