WP(CRL) 37/2009 Page 1 of 31 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 03.07.2009 + WP(CRL) 37/2009 SMT. MALINI MUKESH VORA ... Petitioner - versus – UNION OF INDIA AND ORS ... Respondents Advocates who appeared in this case: For the Appellant : Mr C. Hari Shankar with Mr C. M. Jaykumar and Mr Jagdish N. For the Respondents 1 & 2 : Mr Satish Aggarwal with Mr Sirish Aggarwal For the Respondent No. 3 : Mr Ravindra Adsure with Mr Vishal S. Madke CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes BADAR DURREZ AHMED, J 1. This writ petition has been filed by the wife of Mr Mukesh Nagindas Vora, who is sought to be detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the „COFEPOSA‟). The said detention order which is sought to be challenged was passed by the respondent No. 2 [Joint Secretary, Government of India, Ministry of WP(CRL) 37/2009 Page 2 of 31 Finance, Department of Revenue (COFEPOSA) Section] New Delhi. Although the detention order and consequently the grounds of detention are not on record because the same have not yet been served on Mukesh Nagindas Vora, it is an admitted position that such a detention order has been passed on 13.03.2001. 2. However, a copy of the detention order dated 07.03.2001 passed in the case of the co-detenu Iqbal Mohan Amritlal Mehra as well as the grounds on which the said detention order was issued in respect of the said co-detenu, have been placed on record as annexures P-3 and P-4 to the writ petition. It is the case of the petitioner that the grounds for detention in respect of the co-detenu Iqbal Mehra are virtually identical to the grounds for detention pertaining to the petitioner‟s husband. It was pointed out by the learned counsel that the co-detenu‟s matter was taken up by the Advisory Board and by an order dated 23.05.2001, the Central Government, after having considered the report of the Advisory Board, revoked the detention order and directed that Mr Iqbal Mehra be released from the COFEPOSA detention forthwith. The report of the Advisory Board revealed that the retraction of the co-detenu Mr Kiran Vora made on 28.02.2001 had not been placed before the detaining authority prior to the issuance of the detention order. According to the said report of the Advisory Board, the said document was a vital document which ought to have been placed before the detaining WP(CRL) 37/2009 Page 3 of 31 authority. The view taken by the Advisory Board was that the non- placement of the said document before the detaining authority and consequent non-consideration thereof impaired the satisfaction arrived at by the detaining authority resulting in vitiating the order of detention. Consequently, the Advisory Board came to the conclusion that, inter alia, the non-consideration of the retraction statement of the co-detenu Mr Kiran Vora vitiated the order of detention and, therefore, the detention of Iqbal Mehra, under the provisions of COFEPOSA could not be justified. The Advisory Board was, therefore, of the opinion that sufficient cause did not exist for the detention of Mr Iqbal Mehra. On 22.05.2001 itself, the Advisory Board, for the reasons recorded in the report relating to the co-detenu Iqbal Mehra, was also satisfied that the detention order has not been rightly made against another co-detenu, Mr Kiran Nagindas Vora. The Advisory Board, therefore, gave its opinion that sufficient cause did not exist for the detention of the said Mr Kiran Nagindas Vora. Consequently, the Central Government revoked the detention order even in respect of Mr Kiran Nagindas Vora by an order dated 23.05.2001. 3. In this factual context, the learned counsel for the petitioner drew our attention to the grounds of detention of the co-detenu Mr Iqbal Mehra. He drew our attention to paragraph 2 thereof wherein the name of the petitioner‟s husband (Mukesh Vora) is mentioned. At the end of WP(CRL) 37/2009 Page 4 of 31 the same paragraph, there is a reference to the group comprising of Mr Iqbal Mehra, Mr Kiran Vora, Mr Manish Vora, Mr Mukesh Vora and Mr Brij Mehra. The common allegation is that the said group received payments against fake procurement bills raised by the front companies of the said group on the exporters. The learned counsel for the petitioner then submitted that the co-detenu Mr Kiran Vora made, in all, four statements alleged to be voluntary statements under Section 108 of the Customs Act, 1962. The first statement was allegedly made on 30.08.2000 which is referred to in paragraph 7 of the said grounds of detention in respect of the co-detenu Iqbal Mehra. At the end of paragraph 7 itself, it is noted that there were no business dealings between Mr Kiran Vora and his companies and Mukesh Vora‟s companies. The second statement alleged to have been made by Mr Kiran Vora is dated 03.10.2000. 4. Two further statements are alleged to have been made by Mr Kiran Vora on 24.02.2001 and 25.02.2001 as would be clear from paragraph 17 of the grounds of detention of the co-detenu Mr Iqbal Mehra. The earlier two statements, that is, of 30.08.2000 and 03.10.2000 had been retracted by Mr Kiran Vora on 13.02.2001. It is, thereafter, that the other two statements of 24.02.2001 and 25.02.2001 had allegedly been given by Mr Kiran Vora. However, even these two statements were retracted by Mr Kiran Vora on 28.02.2001 as would be WP(CRL) 37/2009 Page 5 of 31 apparent from the opinion of the Advisory Board in the case of Iqbal Mehra. It is the non-placement of this retraction dated 28.02.2001 which led to the revocation of the detention orders in respect of the co- detenus Iqbal Mehra and Kiran Vora. The learned counsel for the petitioner submitted that it is in the alleged statements of Mr Kiran Vora dated 24.02.2001 and 25.02.2001 that there are serious allegations against the petitioner‟s husband (Mukesh Vora) and it is in these statements that the latter‟s alleged role has been given in detail. Therefore, the retraction letter of 28.02.2001 retracting these statements was a material document insofar as Mukesh Vora was concerned. It is apparent from paragraph 25 of Iqbal Mehra‟s grounds of detention that it is only the retraction letter of 14.02.2001 which has been considered by the detaining authority. There being no mention of the retraction letter of 28.02.2001 retracting the subsequent statements dated 24.02.2001 and 25.02.2001. 5. On the basis of these circumstances, the learned counsel for the petitioner submitted that the same principles which applied in the case of the co-detenus Mr Iqbal Mehra and Mr Kiran Vora would also be applicable in the case of the petitioner‟s husband (Mukesh Vora). He submitted that the only difference between the present case and that of the co-detenus Mr Iqbal Mehra and Mr Kiran Vora are that those persons had been taken into custody after the detention orders and WP(CRL) 37/2009 Page 6 of 31 grounds of detention had been served upon them, whereas in the present case, the petitioner has not been served with the detention order nor the grounds of detention inasmuch as he has been out of India. 6. The learned counsel placed reliance on the decision of the Supreme Court in the case of Alpesh Navinchandra Shah v. State of Maharashtra & Others: 2007 (2) SCC 777. It was also contended by the learned counsel that this is a case of non-communication / non- consideration of a retraction made by a co-detenu to the detaining authority. When material documents are not supplied to the detaining authority or are not considered by the detaining authority, the detention order, even at the pre-execution stage, is liable to be set aside. For this proposition, the learned counsel placed reliance on the Supreme Court decision in the case of Deepak Bajaj v. State of Maharashtra & Anr: 2008 (14) SCALE 62. Apart from this, the learned counsel submitted that the alleged incident which has formed the basis of the detention order was of 2000 and the detention order itself is of 2001. Placing reliance on the Supreme Court decision in the case of Maqsood Yusuf Merchant v. Union of India & Anr: Crl. A. 1337/2008 decided on 22.08.2008, he submitted that the live link between the detention order and its execution having been snapped, the detention order deserves to be revoked. He submitted that the decision in Maqsood Yusuf WP(CRL) 37/2009 Page 7 of 31 Merchant (supra) has also been followed by a Division Bench of this Court in the case of Gopa Manish Vora v. Union of India & Anr.: WP(Crl) 2444/2006 decided on 10.02.2009. According to the learned counsel for the petitioner the only response to this submission that can be discerned from the counter-affidavit filed on behalf of the respondents is that the petitioner having absconded and thereby evaded the service of the detention order cannot be permitted to take this plea. He submitted that for whatever reasons, if a detention order is not served upon the proposed detenu for a great length of time, the detention order may itself lose relevance. This is so because the extreme measure of preventive detention is a permissive encroachment on the liberty of an individual provided there are clear reasons for such preventive detention. The objective of preventive detention is the prevention of the happening of certain prejudicial activities. If there is no history of any prejudicial activity in the interregnum between the making of the detention order and the number of years that have passed by, the link between the detention order and its object has severed. Therefore, in such a case, detaining a person after a lapse of a great length of time, would serve no purpose and the detention order ought to be set aside. 7. The learned counsel appearing on behalf of the respondents raised a preliminary objection to the maintainability of this writ petition WP(CRL) 37/2009 Page 8 of 31 on the ground of lack of territorial jurisdiction of this Court to entertain the present petition. We may point out at the outset that no such plea qua territorial jurisdiction was taken by the respondents in their counter-affidavit. However, since the learned counsel for the respondents strongly urged this point, we are considering the same. The point urged by the learned counsel for the respondents was that everything material in this case has happened outside the territorial jurisdiction of this Court. The only thing that has happened within the jurisdiction of this Court is the issuance of the detention order and the grounds of detention. He submitted that since the detention order has not been served upon the petitioner‟s husband, it cannot constitute part of cause of action. Consequently, placing reliance on the Supreme Court decision in the case of Kusum Ingots and Alloys Limited v. Union of India & Anr.: 2004 (6) SCC 254 he submitted that this Court would not have territorial jurisdiction to entertain the present writ petition. The learned counsel also referred to the following decision of this Court:- Shri Satya Sai College of Education v. National Council for Teacher Education: WP(C) 6216/2008, a decision of a learned Single Judge of this Court delivered on 07.01.2009. 8. With regard to the merits, the learned counsel for the respondents submitted that the petitioner has challenged the order of detention in respect of her husband on essentially two counts. The first being that WP(CRL) 37/2009 Page 9 of 31 the detention order was illegal since its inception inasmuch as the material document being the retraction of Mr Kiran Vora of 28.02.2001 was not placed before the detaining authority and that for the same reason the detention orders in respect of the co-detenus Iqbal Mehra and Kiran Vora have been revoked. The second plea raised by the petitioner was that the detention order, which may have been legal at the time it was issued, has now become stale with efflux of time and, therefore, cannot be given effect to any further. 9. With regard to the first plea raised by the petitioner, the learned counsel for the respondents submitted that this plea cannot be taken by the petitioner inasmuch as the petitioner has not established that the retraction was not in the list of relied upon documents which was annexed with the grounds of detention of the petitioner‟s husband. Therefore, it cannot be stated with certainty as to whether the retraction was placed before the detaining authority or not. The learned counsel further submitted that, without prejudice to this submission, even if it is presumed that the retraction was not placed before the detaining authority, it will still have to be seen as to whether the retraction was a relevant document or not for considering the case of the petitioner‟s husband. WP(CRL) 37/2009 Page 10 of 31 10. With regard to the second plea taken by the petitioner, the learned counsel for the respondents submitted that the petitioner cannot take advantage of his own wrong. He further submitted that this plea does not fall within any of the exceptions enumerated in the decision of the Supreme Court in Additional Secretary to the Government of India & Others v. Smt. Alka Subhash Gadia and Another : 1992 Supp (1) SCC 496. The learned counsel also relied upon the decision of the Supreme Court in the case of Naresh Kumar Goyal v. Union of India: (2005) 8 SCC 276. The learned counsel also submitted that in Gopa Manish Vora (supra) the principle laid down in Naresh Kumar Goyal (supra) was not brought to the notice of the Court in the proper perspective and, therefore, this Court did not have occasion to consider the same. The learned counsel for the respondents also placed reliance on the decision of the Court in the case of Union of India & Ors v. Atam Parkash & Anr: 2009 (1) SCC 585 wherein, according to the learned counsel for the respondents, delay in execution had been held to be no ground for quashing of a detention order. The learned counsel for the respondents submitted that while in Atam Parkash (supra), the Supreme Court‟s decision in Deepak Bajaj (supra) was not noticed, in Deepak Bajaj (supra) also, the earlier decision of the Supreme court in Sayed Taher Bawamiya v. Joint Secretary to the Government of India: (2000) 8 SCC 630 had not been considered or noticed. According to the learned counsel for the respondents, while in Deepak WP(CRL) 37/2009 Page 11 of 31 Bajaj (supra) the Supreme Court held that the exceptions laid down in Alka Subhash Gadia (supra) were not exhaustive but only illustrative, a three judge Bench of the Supreme Court in the case of Sayed Taher Bawamiya (supra) held that those exceptions were exhaustive. Consequently, the learned counsel for the respondents urged that the decision in Sayed Taher Bawamiya (supra) would prevail over the ratio laid down in Deepak Bajaj (supra). He submitted that this aspect of the matter was neither raised nor considered in the decision of this Court in Gopa Manish Vora (supra). Consequently, he submitted that a great delay in the execution of the detention order was not a ground for its quashing. 11. The learned counsel for the respondents further submitted that the decision in Gopa Manish Vora (supra) was based on the decision of the Supreme Court in the case of Maqsood Yusuf Merchant (supra). He submitted that the facts of Maqsood Yusuf Merchant (supra) were different from those of the present case. While in Maqsood Yusuf Merchant (supra) the Union of India had categorically accepted the plea that the petitioner had not indulged in prejudicial activities after the passing of the detention order, this is not so in the present case. WP(CRL) 37/2009 Page 12 of 31 12. It was also contended on behalf of the respondents that the writ petition cannot be allowed on the ground that the detention order had become stale with efflux of time if an adequate explanation could be furnished for the delay in execution of the same. He placed reliance on Naresh Kumar Goyal (supra) as also on T. A. Abdul Rahman v. State of Kerala & Ors: (1998) 4 SCC 741 and Abdul Salam v. Union of India: (1990) 3 SCC 15. He submitted that in the context of the present case the delay in execution of the detention order is satisfactorily explained on the part of the respondents inasmuch as the petitioner has been absconding and has remained outside India for all these years. The detention order could not be served upon the petitioner on account of the conduct of the petitioner and not by reason of any failure on the part of the respondents. Thus, the learned counsel for the respondents submitted that the plea that the detention order had become stale with efflux of time and, therefore, had lost its relevance cannot be accepted. For all these reasons, the learned counsel urged this court to reject the writ petition. 13. In rejoinder, particularly to the plea of territorial jurisdiction, the learned counsel for the petitioner submitted that Article 226 of the Constitution of India as it stood prior to the 15th amendment, did not provide for the situs of the cause of action as a circumstance for deciding the territorial jurisdiction of a High Court. Prior to the 15th WP(CRL) 37/2009 Page 13 of 31 amendment as interpreted in Lt. Col. Khajoor Singh v. Union of India and Anr.: AIR 1961 SC 532 = 1961 (2) SCR 828, the High Court within whose limits the orders are passed would have jurisdiction to entertain a writ petition de hors the question of where the cause of action arose. Article 226 (1) of the Constitution has reference to the location of the authority or the person or government to whom the writ is to be issued. The learned counsel submitted that subsequent to the decision in Khajoor Singh (supra), the Constitution (15th Amendment) Act, 1963 was enacted. The Statement of Objects and Reasons, inter alia, read as under:- “Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article 226 so that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs.” (emphasis supplied) The learned counsel, therefore, contended that because of the introduction of sub-Article (1-A) by virtue of the 15th Amendment to the Constitution in 1963 which was subsequently renumbered as sub- Article (2) by virtue of the 42nd Amendment, the territorial jurisdiction of the High Courts were not curtailed but were amplified. The WP(CRL) 37/2009 Page 14 of 31 introduction of concept of situs of the cause of action provided the High Courts with an extension of the territorial jurisdiction insofar as writ petitions were concerned. Prior to the amendment, the High Courts could only issue writs to the Government, authority or person located within its territory. After the said amendment, by virtue of Article 226(2), as it now stands, the High Courts can issue writs to governments, authorities or persons even outside its territory provided part of the cause of action had arisen within their respective territories. 14. The learned counsel also drew our attention to the Supreme Court decision in Kusum Ingots (supra) and in particular to paragraph 20 wherein the Supreme Court observed that “a distinction between a legislation and executive action should be borne in mind while determining the said question.” He submitted that in the present case we are concerned with an executive action and not a piece of legislation. Therefore, the decision in Kusum Ingots (supra) which, in any event, did not run counter to the submissions made on behalf of the petitioner, would not have any application in the present case, it being a case of a challenge to an executive action. 15. The learned counsel for the petitioner also placed reliance on a Division Bench decision of this Court in the case of Smt. Rama WP(CRL) 37/2009 Page 15 of 31 Devi v. K.A. Gafoor and Others: ILR (1976) I Delhi 72 wherein it was observed that “there can be and is really no doubt about the fact that High Court within whose territorial jurisdiction the order of detention is made and / or the person is detained will have jurisdiction”. The learned counsel for the petitioner reiterated his submissions with regard to the merits of the matter and urged that the detention order be set aside. 16. Having set out the arguments of the counsel for the parties, we shall now take up for consideration the first issue with regard to the preliminary objection raised by the respondents on the ground of alleged lack of territorial jurisdiction of this Court in considering the present writ petition. We are, for deciding this question, accepting the plea, although there is no factual foundation laid out in the counter- affidavit, that everything, except the issuance of the order and the making of the grounds of detention, happened outside the territory of Delhi. Two aspects require consideration. The first aspect is that the issuance of the detention order and the drawing up of the grounds of detention, itself constitutes a material, essential and /or integral part of the cause of action. Thus, even if we are to consider the question of territorial jurisdiction from the standpoint of Article 226 (2) of the Constitution of India, this Court would certainly have jurisdiction to WP(CRL) 37/2009 Page 16 of 31 entertain the present writ petition. The second aspect is with regard to the maintainability of this writ petition in the backdrop of Article 226 (1) of the Constitution of India. Article 226 of the Constitution originally read as under:- “226. (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, within whose territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose. (1) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32”. The said provision was considered in the case of Election Commission, India v. Saka Venkata Rao: 1953 SCR 1144, Hari Vishnu Kamath v. Syed Ahmed Ishaque & Others: 1955 (1) SCR 1104 and Khajoor Singh (supra). The position of law as it stood after the decision of the Supreme Court in Khajoor Singh (supra) was that the place where the cause of action arose had no relevance for the purposes of determining the territorial jurisdiction of the High Court. What was of relevance was where the person, authority or government to whom the writ was to be issued was located. If such person, authority or government was within the territory over which the High Court exercised jurisdiction, then such High Court would have had territorial jurisdiction. But if WP(CRL) 37/2009 Page 17 of 31 such person, authority or government was beyond the territory over which the High Court exercised jurisdiction then the said High Court could not issue a writ to such person, authority or government and consequently a writ petition seeking the issuance of such a writ