STATE OF TAMIL NADU A ----( v.

PK. SHAMSUDEEN

JULY 21, 1992

[T.K. THOMMEN AND S; P. BHARUCHA, JJ.] B

Conservation of Foreign Exchange and Prevention of Smuggling Ac- --( tivities Act, 1974:

Section 3--Preventive detentioetention order-Interference by High c Court on ground of inordinate and unexplained delay in execution of-lus- - tification of.

An order of detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed by the appellant-State against the respondent's uncle. The detenu D filed a .writ petition in the High Court at Calcutta challenging the detention order. The High Court passed an order granting temporary injuction restraining the appellant from detaining the detenu but upon considera- , tion of the counter-affidavit filed by the appellant vacated the order of injunction. Thereafter the respondent, a nephew of the detenu, filed a writ E -( petition before the High Court at Madras, which allowed the same on the ground that there had been inordinate and unexplained delay in the implementation of the detention order.

In the appeal before this Court on behalf of the appellant-State, it was contended that the High Court was not justified in exercising its F extraordinary powers to restrain the execution of the detention order •

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•On behalf of the respondent, it was contende~ that between the date of passing the order and the filing of the writ petition before the High Court at Calcutta, the detenu had regularly appeared before the concerned G Magistrate and there was no satisfactory explanation for the failure of the authorities to detain him under the detention order and that the live and proximate link between the grounds and purpose of detention had been \ snapped by the undue and unreasonable delay.

Allowing the appeal, this Court H 587

A HELD: The delay in the execution or the detention order passed against the detenu, upon which the High Court at Madras rounded the y relief it gave, had already taken place by tbe date writ petition was filed by the detenu at Calcutta. That the dela)' had taken place was, obviously, .known to the detenu, who himself was the writ petitiOner in Calcutta.

B Nonetheless, the point of delay was not taken in Calcutta. It was taken only after the High Court at Calcutta had vacated the interim injuction

' restraining the appellant from executing the detention order when the writ petition was filed by the respondent in the High Court at Madras subsequently. That a writ petition had been filed in Calcutta challenging the detention order was mentioned, both in the writ petition at Madras and in c the reply filed thereto. In these circumstances, the High Court was not justified in exercising its discretion to issue the high prerogative writ of mandamus to direct the appellant to forbear from executing the detention - order passed by it.(591 8-DJ

D The Additional Secretary to the Government of India & Ors. v. Smt.

Atka Subhash Gadia & Ors., J.T. (1991) 1 S.C. 549, distinguished. .

NX Bapna v. Union of India, (1992) 60 E.L.T. 13 S.C. and K.P.M.

Bashee~_,'f!., State _of Kamataka & Anr. etc., [1992) 2 SCC 295, referred to.

E CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

392of1~ '" \-- From' the Judgment and Order dated 3.1.92 of the Madras High

Court in W.P. No. 9587 of 1991.

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F V.R. Reddy, Additional Solicitor General, K.V. Venkataraman, K.V.

Viswanathan and V.G. Pragasam for the Appellant.

B.Kumar and K.K. Mani for the Respondent. -~

The Judgment of the Court was delivered by G BHARUCHA, J. Special leave to appeal granted.

This is an appeal against the judgment and order ofa Division Bench of the High Court of Judicature at Madras issuing. a writ of mandamus against the present appellant directing it to forbear from implementing the H order of detention issued by it against one Sheik Ahamed Hajee, son of

Mammoo, under the provisions of the Conservation of Foreign Exchange A and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA').

The detention order was issued on 8th March, 1988. On 5th April 1989 the detenu filed a writ TJetition in the High Court of Judicature at Calcutta (being Writ Petition No.C.0.4202/W/89) impugning the detention order. The detenu stated therein that he was a resident of Aberdeen Bazar, Port Blair, and carried on business therefrom. The writ petition was admitted and the present appellant was restrained from detaining the detenu for a period of two weeks. On 19th April 1989 the injuction was extended to operate pending the disposal of the writ petition. On 12th April 1991, upon consideration of the counter-affidavit filed by the present appellant, the order of injuction was vacated. Thereupon, on 10th Jul~ 1991, the present writ petition was filed in Madras by the respondent to

this appeal, who is a nephew of the detenu. By the judgment and order under appeal the writ petition was allowed upon the ground that there had D been inordinate and unexplained delay in the implementation of the detention order. Emphasis was placed upon the fact that an advocate of Coimbatore had sworn an affidavit on 12th November, 1991 wherein, as counsel for the . detenu, he stated that the detenu had appeared before the Magistrate's Court in the related criminal proceedings taken against him under the Customs Act on various dates between 4th December 1987 and 3rd August 1988, which statements were, admittedly, correct.

Mr. V.R. Reddy, learned Additional Solicitor General, appearing on behalf of the present appellant, drew our attention to the judgment of this Court in The Additional Secretary to the Government of India & Ors. v. Smt.

Alka Subhash Gadia & Ors;, J.T. (1991) 1 S.C. 549. This Court held thus:-

"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 G 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 H

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 athority 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 Mr. Reddy's subll)issio~, the case of the detenu did not fall within the limited scope set out in the aforesaid judgment and the High Court was, therefore, not justified in exercising its extraordinary powers to restrain the execution of the detention order. .

D Mr. B. Kumar, learned counsel for the present respondent, drew our

attention to the judgment of this Court in N.K Bapna v. Union of India,

(1992) 60 E.L.T. 13 S.C. This Court there affirmed the judgment in the case of Atka Subhash Gadia aforementioned.

Much emphasis was laid by Mr. Kumar upon the delay in the execution of the detention order between 8th March 1988, when it was issued, and 5th April 1989, whe.11 the Calcutta High Court restrained its execution by an interim order. It was submitted that during this period the detenu had regularly appeared before the concerned Magistrate at Coimbatore and there was no satisfactory explanation for the failure of the authorities to detain him under the detention order. Reliance was placed upon this Court's Judgment in K.P.M. Basheer v. State of Kamataka & Anr. etc., [1992] 2 SCC 295 and it was submitted that the live and proximate link between the grounds and purpose of detention had been snapped by the undue and unreasonable delay. The delay in detention in KP.M. Basheer's .G case was of 5 months and 11 days but, it is important to note, detention had been effected before the writ petition was filed.

Clearly, the present case does not fall within the parameters outlined in the case of Atka Subhash Gadia justifying interference with the detention order at the pre-detention stage. There is no dispute that the detention H order was passed under COFEPOSA, nor that it was sought to be executed

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against the right person, nor that it had been passed for a wrong purpose, A nor that it had been passed on vague, extraneous or irrelevant grounds, nOli that the authority which had passed it had no authority to do so.

It is relevant also to note thatthe writ petition in Calcutta was filed on 5th April 1989. The delay in the execution of the detention order upon which the Madras High Court founded the relief it gave had already taken B place by 5th April 1989. That the delay had taken placed was, obviously; known to the. detenu who himself was the writ petitioner in Calcutta:.

Nonetheless, the point of delay was not taken in Calcutta. It was taken only after the Calcutta High Court had on 12th April 1991 vacated the interim injuction restraining the present appellant from executing the detention C order when the writ petition was filed by the present respondent in the Madras High Court on 10th July 1991. That a writ petition had been filed in Calcutta challenging the detention order was mentioned both in the Madras writ petition and in the reply filed thereto. We do not think that in these circumstances the High Court was justified in exercising its discretion to issue the high prerogative writ of mandamus to direct the appellant D to forbear from executing .the detention order passed by it.

In the result, the appeal succeeds and the judgment and order under appeal are set aside. There shall be no order as to costs.

N.P.V.

Appeal allowed.