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UNION OF INDIA AND ORS.

MUNEESH SUNEJA

JANUARY 30, 200I

[S. RAJENDRA BABU AND S.N. VARIA VA, JJ.] B

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973--Section 3(1)-Detention order-Pre-detention stagel11te1ference by Court-Scope of-Held, interference of Court i11 pre-detention cases is not called for except in the exceptional circumstances set forth by C Supreme Court-Delay in passing the order of detention or execution of the same are 11ot such grounds which could be made the basis for quashing the order of detention at a pre detention stage-Such delay not fatal except where the same stands un-explained.

Practice & Procedure:

Petition--Withdrawal of-Fresh petition before a different Court-Nondisclosure of the fact of earlier petition-Effect of-Held, such non-disclosure fatal to the petition.

Residential premises of the respondent were searched by the officials of the Enforcement Directorate leading to the recovery of Indian currency of Rs. 3 lakhs, 8 gold biscuits of 110 tolas and Deustche marks 5300. He was arrested and thereafter released on bail after about two months. Subsequently,

an order of detention was passed under Section 3(1 )of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973 directing F the detention of the respondent.

The validity of the said detention order was challenged in High Court which was, however, withdrawn with liberty to file a fresh writ petition, if need be. Thereafter, a petition was filed before another High Court but the G fact of filing of a petition earlier in a different High Court was not disclosed.

The said petition was allowed by the High Court holding that there had been delay in making the order of detention and that after making the order of detention no effective steps had been taken to execute the same except to make a vague allegation that the respondent was absconding. Hence the present appeals. 683 H

On behalf of Union of India, it was contended that the High Court could not interfere at pre-detention stage in the light of the decision of Supreme Court in Additional Secretary to the Government of India & Ors. v. Smt.

Atka Subhash Gadia & Anr., (1992( Supp. I SCC 496, which made it clear that the courts should not interfere at the pre-detention stage except in exceptional circumstances detailed therein.

Allowing the appeals, the Court

HELD : I. This Court has been categorical that in matters of predetention cases interference of court is not called for except in the circumstances set forth in the cases of Additional Secretary to the Government of India & Ors. v. Smt. Alka Subhash Gadia & Anr., 11992( Supp. I SCC 496 and Sayed Thaer Bawamiya v. Joint Secretary to the Government of India & Ors., 120001 8 SCC 630. If this aspect is borne in mind, the High Court could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order. For mere delay either in passing the order or execution thereof is not fatal except where the same stands un-explained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis of quashing the order of detention at a pre-detention stage. The order of detention having been made long time ago and the same not having been effected till today, it is certainly necessary for the authorities concerned in the Government to apply mind as to whether detention of the respondent is still necessary or not and take appropriate steps either in giving effect to the order of detention or to revoke the same. (687-G-H; 688-A-D(

Additional Secretary to the Government of India & Ors. v. Smt. Alka Subhash Gadia & Anr., 119921 Supp. I SCC 496 and Sayed Thaer Bawamiya

v. Join/ Secretary lo the Government of India & Ors., 120001 8 sec 630, followed.

Go/am Hussain alias Gama v. The Commissioner of Police, Ca/cul/a & Ors., (199414 SCC 530; TA. Abdul Rahman v. State of Kera/a & Ors., (19891 4 SCC 741 and Ahamed Mohaideen Zabbar v. State ofT. N. & Ors., (199914 sec 417, cited.

2. When the respondent had filed a writ petition in a High Court and H that writ petition was subsequently withdrawn, this fact should have been

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U.O.I v. M. SUNE.IA [RA.IENDRA BABU, .I.] 685

clearly stated in the Course of the petition filed subsequently before a different A High Court. Not disclosing this factor is indeed fatal to the petition. [687-E-Hf

CRIMINAL AP PELLA TE JURISDICTION: Criminal Appeal Nos.

122-123 of2001.

From the Judgment and Order dated 1.9.99 of the Punjab and Haryana B Court in Crl., M.P. No. 30460-M of 1998 and Crl. M. No. 15733 of 1999.

Mukul Rohatgi, T.V. Ratnam and P. Panneshwaran for the Appellants.

K.T.S. Tulsi, Ms. Nandini Ramchandran, Satvik Varma and Devendra Singh for the Respondent.

The Judgment of the Court was delivered by

RAJENDRA BABU, J. Leave granted.

A writ petition was filed in the High Court of Punjab and Haryana challenging the validity of the order of detention passed against the respondent D under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973 (hereinafter referred to as 'the Act'] directing the detention of the respondent by an order made on 9.6.1998. It appears that the respondent filed a writ petition before the High Court of Delhi challenging the validity of the said detention order which was, however, withdrawn on E 15.7.1998 with liberty to file a fresh writ petition, if need be. Thereafter a petition was filed before the High Court of Punjab and Haryana and in the course of the petition filed before it the fact of having filed a writ petition before the High Court of Delhi was not disclosed. But, on the other hand, it is stated that no petition had been filed in any of the courts, including the Supreme Court for the identical relief that had been sought for in the petition F filed before the High Court of Punjab and Haryana. The High Court took note of the fact that on 19.6.1997 the officials of the Enforcement Directorate, Jalandhar searched the residential premises of the respondent at Delhi arid recovered Indian currency of Rs. 3 lakhs, 8 pieces of yellow metal appearing to be gold in the form of biscuits of 110 to las and Deustche Marks 5300. It' G is alleged that business premises of the respondent at Karol Bagh was searched which proved futile. Even when the search of the business premises was going on a telephonic call was stated to have been received from one Jagdish who was bringing a sum of Rs. 6,50,000. Though the said Jagdish was not arrested, the respondent was arrested and produced before the Court of a Magistrate at Patiala on 21.6.1997. He was released on bail on 19.8.1997 by H

A the Court of Addiiional Chief Metropolitan Magistrate, New Delhi. He was granted bail inasmuch as even after 60 days from the date of his arrest no complaint had been filed, but on 9.6.1998 the detention order was passed.

The High Court, in the course of its order, took note of the two grounds, firstly, that there has been delay in making the order of detention inasmuch B as the said order had been passed on 9.6.1998 but the incident in respect of which the said detention order had been passed is stated to have taken place on 19.6.1997, nearly after about a year, and secondly, that after making the order of detention no effective steps had been taken to execute the same except to make a vague allegation that the respondent was absconding. c Th is appeal is filed against the said order principally on the ground that the High Court could not interfere at pre-detention stage and no writ could have been issued in the light of the decision of this Court in Additional Secretary to the Government of India & Ors. v. Sm/. Atka Subhash Gadia & Anr., [ 1992) Supp. 1 SCC 496, which made it clear that the courts should D not interfere at the pre-detention stage except in exceptional circumstances

such as :

(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.

This principle has been reiterated by this Court in Sayed Thaer Bawamiya v.

Joint Secretary to the Government of India & Ors, [2000) 8 SCC 630.

The learned Additional Solicitor General pointed out that neither of the two grounds set out in the course of the order of the High Court are such G of those which fall within the ratio of the decision in Additional Secretary to the Government of India & Ors. v. Smt. Alka Subhash Gadia & Anr., (supra) so as to interfere at the pre-execution stage with the detention order. Further, he contented that no part of cause of action having arisen in the jurisdiction of the High Court inasmuch as recoveries had been effected in Delhi after H search made on the residential and business premises of the respondent and

U.0.1 v. M. SUNEJA (RAJENDRA BABlJ, J.) 687

detention order had been passed in Delhi, though upon the information A -----

furnished by the Enforcement Directorate officials at Jalandhar.

Shri K.T.S. Tulsi, the learned senior Advocate appearing for the respondent, submitted that considered in the background that the atnount recovered either in the shape of Indian currency and foreign currency or the B quantum of gold and the enactments such as the Foreign Exchange Regulation

_ .k- Act (FERA) having been repealed, the Foreign Exchange Maintenance Act (FEMA) and Gold Control Act not contemplating prosecution in a criminal court the acts imported to the respondent do not merit detention. He further pointed out that there is inordinate delay in making the order of detetion and no effective steps were taken for executing the same, as noticed by the High c Cou11 and, therefore, in those circumstances, the High Court was justified in interfering with the order made by the Joint Secretary to the Government of ..,.

India under Section 3 of the Act. He relied upon the decisions of this Court in Go/am Hussain alias Gama v. The Commissioner of Police, Calcutta & Ors., [1994] 4 SCC 530; TA. Abdul Rahman v. Stale of Kera/a & Ors. [1989] D 4 SCC 74 I and Ahamed Mohaideen Zabbar v. State of TN. & Ors., [I 999] 4

SCC417.

-,,.

The present case is not for issue of any writ of habeas corpus but for certain other types of reliefs. The matter must be examined as any other ordinary writ petition would be examined. When the respondent had filed a writ petition before the High Court of Delhi and that writ petition was E

subsequently withdrawn, this fact should have been clearly stated in the course of the petition filed before the High Court of Punjab and Haryana. Not disclosing this factor is indeed fatal to the petition. Shri Tulsi submitted that this lapse on the part of the respondent should not be viewed seriously because ultimately any order that could be made by the court would affect F the libe11y of a citizen which is protected under Articles 21 and 22 of the Constitution. He, therefore, very passionately pleaded that we should not proceed to dispose of the matter on that short ground. Even assuming that this non-mentioning of the proceedings before the court was ill-advised, though not deliberate, we do find great force in the other submissions made G by the learned Additional Solicitor General. This Court has been categorical • .-r that in matters of pre-detention cases interference of court is not called for except in the circumstances set f011h by us elrlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order. For mere delay either in passing H

A the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same ... could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Additional Secretary to the B Government of India & Ors. v. Smt. Atka Subhash Gadia & Anr., (supra) and

Sayed Thaer Bawam(va v. Joint Secretary to the Government of India & Ors.

"'I. (supra), we hold that the order made by the High Court is bad in law and deserves to be set aside.

C At the same time, it must also be noticed that the order of detention having been made as early as on 9.6.1998 and the same not having been effected till today, it is certainly necessary for the authorities concerned in the Government to apply mind as to whether detention of the respondent is sti II necessary or not and take appropriate steps either in giving effect to the order of detention or to revoke the same. In addition, we may also notice that the D order made by us will not prejudice the interest of the respondent that in the event the said order of detention is given effect to, it is open to the respondent to raise all grounds as are permissible in law notwithstanding what we may have observed in the course of this order.

The appeals are accordingly allowed by setting aside the order made E by the High Court.

M.P.

Appeals allowed.