WP(Crl.) No. 1787 of 2009 Page 1 of 33 Reportable * IN THE HIGH COURT OF DELHI AT NEW DELHI WP (Crl.) No.1787 of 2009 Reserved On: 04th February, 2010 % Date of Decision: 18th March, 2010 DROPTI DEVI . . . Petitioner through : Mr. Vikram Chaudhri with Mr. Nikhil Jain, Advocates. VERSUS UNION OF INDIA AND OTHERS . . .Respondents through: Mr. A.S. Chandhiok, ASG with Mr. Atul Nanda, Ms. Rameeza Hakeem and Mr. Gaurav Gupta, Advocates. CORAM :- THE HON’BLE MR. JUSTICE A.K. SIKRI THE HON’BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. The petitioner, by means of this writ petition, has challenged the detention order dated 23.09.2009 whereby Sh. Raj Kumar Aggarwal, who is the son of the petitioner, is sought to be detained under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as „COFEPOSA‟). The detention order has not been executed so far and thus, Sh. Raj Kumar Aggarwal (hereinafter referred to as „the detenu‟) has not been taken into custody. This petition has been filed at pre-detention stage. For this reason, the detenu has not WP(Crl.) No. 1787 of 2009 Page 2 of 33 been served with the grounds of detention/speaking order so far, as the requirement of serving copy of grounds of detention arises after the detenu is taken into custody. The petitioner has, therefore, filed a copy of the order dated 23.09.2009 only, which is issued by Joint Secretary, Government of India stating that the detenu be detained and kept in custody in the Central Jail, Tihar, New Delhi. However, some indications of the circumstances under which this order came to be passed, can be gathered from the counter affidavit filed by the respondents to this writ petition to which we shall advert to at the appropriate stage. Before that, we deem it proper to take note of the averments made in the writ petition, which formed the basis of challenging the detention order. 2. One Ambika Electronics, engaged in the business of mobile phones, belongs to Anil Kumar Aggarwal, who is detenu‟s brother. On 17.02.2009, premises of the said firm at 136, M.C.D. Market, Karol Bagh, New Delhi and other premises, viz., residence of Anil Kumar Aggarwal, that of detenu at Pitam Pura, New Delhi, shop premises of M/s. Bhagwati Electronics situated at 135, Municipal Market, Karol Bagh, New Delhi belonging to Kapil Jindal were raided by the office of the Directorate of Enforcement, New Delhi. Indian currency amounting to Rs.8,00,000/- approximately was recovered and some documents were also seized by the Enforcement Authorities, who took into custody the detenu‟s passport as well. The detenu was also taken away by the official to their office at Jamnagar House, Akbar Road, New Delhi in the intervening night between 17.02.2009 and 18.02.2009 where he was interrogated. His WP(Crl.) No. 1787 of 2009 Page 3 of 33 statements were obtained, though it is claimed that it was done by exercising threat, pressure and coercion and that on the very next day, i.e., 19.02.2009, the detenu made retraction of the said statement. Thereafter, he was summoned on various occasions. However, because of his illness, he was unable to travel much. The detenu ultimately appeared on 15.05.2009 when his signatures were purportedly taken on certain blank papers. On 18.05.2009, he moved an application for release of the Indian currency seized on 17.02.2009. By this application, he categorically averred that the amount in question was duly accounted for in the books of accounts and he is not involved in any contravention or violation under the FEMA. On 25.05.2009, he also moved the application for release of passport seized by the officials of the Directorate of Enforcement. Reply dated 08.09.2009 was received by him stating that the matter regarding seized currency/documents would be decided after completion of investigation against the detenu. 3. It so happened that on 17.02.2009, residential premises of Sh. Anil Kumar Aggarwal at Pitam Pura, New Delhi were also searched and Indian currency amounting to Rs.8,00,000/- along with certain documents were taken into possession by the Enforcement Directorate. He was also issued summons under Section 37 of FEMA pursuant to which he attended the office on 20.04.2009. On 18.05.2009, Anil Kumar Aggarwal moved the application for release of his Indian currency with the averments that the said amount is duly accounted for in his books of accounts and there is no violation or contravention under FEMA. He was also given reply dated WP(Crl.) No. 1787 of 2009 Page 4 of 33 08.09.2009 that the matter regarding seized currency would be decided after completion of investigation into the matter. The petitioner maintains that the detenu has nothing to do with the affairs of Anil Kumar Aggarwal. In the premises of M/s. Bhagwati Electronics, searched by the Directorate, Indian Currency, this letter was recovered. Kapil Jindal was also taken to the office around 1.00 a.m. in the intervening night of 17.02.2009 and 18.02.2009 and his statement was recorded. However, he also retracted his statement on 19.02.2009 alleging that it was involuntarily statement and was obtained under threat and coercion. He also asked for return of his currency and was given the same reply, viz., the matter regarding seized currency would be decided after the completion of investigation. 4. Upon coming to know of the proposal to detain the detenu, a number of representations were made categorically highlighting that he is not engaged in any transaction which may attract contravention under the provisions of FEMA and the Indian currency/amount seized is duly accounted for in the books of accounts. The detenu also categorically averred that he is merely engaged in the business of sale and purchase of mobile phones in India and is not engaged in import of any products. The competent authority still went ahead and passed the impugned detention order on 23.09.2009. The petitioner came to know of this order when certain officers came to the residence of the detenu at Sonepat, Haryana where the detenu is presently residing and asked about the WP(Crl.) No. 1787 of 2009 Page 5 of 33 whereabouts of the detenu. Upon asking, those persons handed over the photocopy of the detention order. 5. This writ petition is filed challenging the same at pre-detention stage raising the following grounds: i) That the impugned order has been passed in violation of the Fundamental Rights of the detenu as guaranteed under Article 14, 19 and 21 of the Constitution of India. It is argued that FEMA makes it a civil compoundable offence and, therefore, exercising the draconian powers under Section 3(1) of COFEPOSA violates the fundamental right of the detenu. ii) That the Detaining Authority has not been alive to the fact that there is absolutely no basis for inferring any act of omission or commission by the detenu which would be violative of any dealings in foreign exchange and that the Detaining Authority has also been oblivious to the drastic change in the intention of the legislature which has since repealed the erstwhile Foreign Exchange Regulation Act, 1973 and in its place has brought into force a much milder legislation in the forum of Foreign Exchange Management Act, 1999. iii) That the impugned order is also vitiated by inordinate delay in issuance thereof. iv) That the impugned order has been rendered completely nonest on account of non-placement of vital and material documents before the Detaining Authority by the Sponsoring WP(Crl.) No. 1787 of 2009 Page 6 of 33 Authority leading to non-consideration thereof , while passing the impugned order. v) That the impugned order is passed on irrelevant, extraneous, vague and non-existent grounds. 6. In the counter affidavit filed on behalf of the Union of India, maintainability of this writ petition at pre-detention stage is challenged on the ground that the jurisdiction of this Court is very limited in view of the law laid down by the Supreme Court in the case of Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another [1992 (Suppl. 1) SCC 496]. According to the respondents, the grounds taken for challenging the detention order are not available at this Stage. It is also submitted that enactment of FEMA does not prevent the authorities to pass detention order under Section 3(1) of the COFEPOSA and such a contention has categorically been rejected by the Supreme Court in the case of Union of India Vs. Venkateshan (2002) 5 SCC 285. It is also denied that relevant material was not placed before the detaining authorities or that there was no material to pass the order of detention. The respondents have also stated that there is no delay in passing the order of detention, which would vitiate the said order. In support of the above submissions, the respondents also produced the original records for our perusal, which have been minutely scrutinized by us. 7. Since much of the time was consumed by the counsel for both the sides on the scope of challenge to the detention orders at pre- WP(Crl.) No. 1787 of 2009 Page 7 of 33 detention stage and very detailed submissions were made in this behalf relying upon the various judgments of the Supreme Court as well as this Court, we deem it proper to address this issue in the first instance. 8. Re: Scope of Challenge at Pre-detention Stage: The law revisited It is not in dispute that the Supreme Court in categorical terms delineated the parameters on which order of detention at pre- execution stage can be questioned in the case of Alka Subhash Gadia and Another (supra). In that case an order of detention was passed against the husband of the respondent No.1 under Section 3(1) of COFEPOSA. The order, however, could not be served on him as he was absconding. Hence a declaration was made that he fell within the category mentioned in Section 2(b) of the SAFEMA. Thereafter, a notice was issued under Section 6(1) of the SAFEMA to show cause as to why the properties mentioned in the schedule to the said notice should not be forfeited to the Central Government for reasons recorded in the accompaniment. A copy of the notice along with the schedule of the properties and the copy of the reasons for forfeiture of property were also sent to the respondent No.1. The Respondent No.1, thereafter, filed a writ petition under Article 226 before the High Court challenging the detention order as well as the show cause notice. The High Court by its impugned decision held that the writ petition was maintainable for challenging the detention order even though the detenu was not served with the order and he had thus not surrendered to the authorities. The High WP(Crl.) No. 1787 of 2009 Page 8 of 33 Court further directed that the detention order, the grounds of detention, and the documents relied upon for passing the detention order be furnished to the detenu and that they should also be produced before the court. The High Court also directed the authorities to supply the said documents to the counsel for the respondent No.1. The Assistant Director of Enforcement filed an affidavit before the High Court stating that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, they cannot furnish them to the respondent No.1, unless, as required by the Act, the detenu first submits to the impugned order. The High Court held that the officers were guilty of contempt of court and directed the matter to be listed to take appropriate action for contempt. It is at that stage that the special leave petitions, giving rise to the appeals, were filed before the Supreme Court. 9. Keeping in view the fact that the appeals involved questions of great public interest and importance, the matter was ultimately heard by a three Judges Bench, which allowed the appeals and set aside the order of the High Court. One of the grounds specifically taken by the respondent in that case was that since judicial review was a part of basic structure of the Constitution, the power of the High Court under Article 226 of the Constitution could not be circumscribed in any way by any law, including detention law. Therefore, the detention order could be challenged at any stage. It was argued that the artificial distinction between pre-decisional stage and post- decisional challenge is inconsistent with and alien to the wide WP(Crl.) No. 1787 of 2009 Page 9 of 33 powers conferred under Articles 226 and 32 of the Constitution. The Court did not accept these submissions in the broader sense in which they were argued. The perusal of the judgment would bring the following principles laid down therein: 1) Despite the constitutional protection of Articles 14, 19 and 21, it is not mandatory that a detenu must be informed of the grounds of his detention prior to being detained under an order of detention (para 29). The Court rejected the argument that it would deprive the detenu of a right of judicial review of the order of detention (para 30). 2) The detenu does not even have the right to the order of detention or the grounds thereof before the order of detention is executed even to verify whether it can be challenged at its pre-execution stage on the limited grounds available (para 32). 3) Though the courts have the power to interfere with the detention orders at the pre-execution stage, but they are not obliged to do so nor will it be proper for them to do so, save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right (para 32). 4) Such exceptional cases are where the court is 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, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so (para 30). 10. Following rationale is provided by the Apex Court in conferring the jurisdiction at pre-detention stage: WP(Crl.) No. 1787 of 2009 Page 10 of 33 “19. As regards 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 place 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 on criminal consequences.” 11. At the same time limitation in the exercise of powers at the pre- execution stage are explained in the following words:- “However, the Courts have over the years 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 Articles 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 Sibbal 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 WP(Crl.) No. 1787 of 2009 Page 11 of 33 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 Lave no power to entertain grievances against any detention order prior to its execution.” 12. At that stage the Court spelled out the circumstances in which interference would be called for:- “The courts have the necessary power and they have used it in proper cases as has been pointed out above, although 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, extraneous 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 power of judicial review to interfere with the detention orders prior to their execution on any other grounds 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.” 13. It is clear that the Court was also of the opinion that in some genuine and exceptional cases, power can be exercised by the Courts to interfere with the detention order even at pre-execution stage. However, the detenu cannot claim such exercise of power as a matter of „right‟ and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles. This is so stated in the following words: “32…Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre- execution stage, of course, on the very limited grounds WP(Crl.) No. 1787 of 2009 Page 12 of 33 stated above. The Court no doubt even in such eases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre- execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do to not will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well- settled principles.” 14. There is no quarrel about the aforesaid dicta laid down by the Supreme Court in Alka Subhash Gadia and Others (supra). However, the parties differ in their perceptions on two aspects, viz.: a) Whether five grounds mentioned in Alka Subhash Gadia and Others (supra) are exhaustive and not illustrative. b) What would be the impact and scope of these grounds, particularly, ground 3 and 4. 15. Insofar as dispute about the exhaustive nature of the five grounds stated in Alka Subhash Gadia and Others (supra), learned counsel for the petitioner relies upon the judgment of the Supreme Court in Deepak Bajaj Vs. State of Maharashtra [AIR 2009 SC 628] wherein following observations were made by the Court: “6. We have carefully perused the above observations in Smt. Alka Subhash Gadia's case (supra) and we are of the opinion that the five grounds mentioned therein on which the Court can set aside the detention order at the pre execution stage are only illustrative not exhaustive.” xxx xxx xxx 24. If a person against whom a preventive detention order has been passed comes to Court at the pre execution stage WP(Crl.) No. 1787 of 2009 Page 13 of 33 and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be likely transgressed. Hence in our opinion Smt. Alka Subhash Gadia's case (supra) cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre execution stage are exhaustive.” 16. Mr. Chandhiok, learned ASG appearing on behalf of the Union of India, submitted that these observations made by two Judge Bench were clearly per incurium as, in various cases decided by the Supreme Court following Alka Subhash Gadia and Others (supra), the Apex Court had categorically clarified that these grounds were exhaustive and not illustrative. A reference was made to the decision in the case of Subhash Muljimal Gandhi Vs. L. Himingliana [(1194) 6 SCC 14] in the following terms: “9. Mr. Jethmalani first contended that the five contingencies referred to in the above quoted passage were not exhaustive but illustrative as there might well be other contingencies in which pre-execution challenge to the order of detention would be permitted. In elaborating his contention Mr. Jethmalani submitted that in the case in hand there were sufficient materials to prove that the Customs Officers concocted a false case of smuggling against the appellant after beating him, keeping him in illegal custody for three days and coercing him to make a confessional statement. In support of this submission, Mr. Jethmalani first drew our attention to the report of the doctor of the Jail Hospital submitted on June 2, 1990 to the Chief Metropolitan Magistrate regarding medical examination of the appellant which indicate that the doctor found some bruises and abrasions on his person and he complained of pain on his body. Mr. Jethmalani then drew our attention to the fact that though the appellant was apprehended in the early hours of May 22, 1990 and was thus constitutionally and statutorily required to be produced before the nearest Magistrate latest by May