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CASE NO.: Appeal (crl.)  86 of 1999

PETITIONER: Union of India & Ors.                            

RESPONDENT: Vidya Bagaria                                            

DATE OF JUDGMENT: 05/05/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T   

ARIJIT PASAYAT, J.

        The Union of India, Joint Secretary COFEPOSA,  Commission of Customs-II, Madras and State of Tamil Nadu  question the legality of the judgment rendered by a  learned Single Judge of the Punjab and Haryana High  Court quashing order of detention dated 19.12.95 passed  in respect of one Ratan Bagaria under Section 3(1) of  the Conservation of Foreign Exchange and Prevention of  Smuggling Activities Act, 1974 (hereinafter referred to  as ’the COFEPOSA Act’). Before the order of detention  could be served on Shri Ratan Bagaria, his wife Smt.  Vidya Bagaria, the respondent herein, filed Habeas  Corpus writ petition under Article 226 of the  Constitution of India, 1950 (in short ’the  Constitution’) praying for issuance of writ or any other  order quashing the order of detention passed by  appellant no.2 herein who was the respondent no.2 in the  writ petition.  Several grounds touching legality of  grounds on which the order of detention was passed were  raised in the writ petition.  The present appellants  filed a counter affidavit.  Primarily an objection was  taken regarding the maintainability of the writ  application before the order of detention was actually  served  and the detenu taken into custody. The various  stands regarding the legality of the grounds of  detention as have been raised by the writ petitioner  were also refuted and it was submitted that grounds  stated were germane and relevant for directing  detention. The High Court elaborately dealt with the  legality of the grounds on which the order of detention  was founded. But as regards the preliminary objection  about the maintainability of the writ petition even  before the order of detention was actually served, the  same  was dealt with and disposed of in a very casual  and summary manner, observing without even properly  adverting to the law laid down by this Court, brought  specifically to its notice  as follows:

"Before I proceed further into the  matter, I may say that the case law  which has been relied upon by Mr. Sharma

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is off the point."

       The writ petition was allowed holding that grounds  indicated in the order of detention were not legally  sustainable and order of detention was unsustainable.  

       Learned counsel for the appellants submitted that  the High Court has not dealt with the most vital aspect  regarding the very maintainability of the writ petition  even before the order of detention was served and the  detenu incarcerated in prison in a very cryptic manner  before rejecting the plea.

       Per contra, learned counsel for the respondent  submitted that the reasonings given by the High Court  clearly indicate that the writ petition was maintainable  and the legality of grounds were also duly tested. No  infirmity therefore can be found with the order of the  High Court. In any event, it was submitted that the order  of detention was passed nearly nine years back and the  purported apprehensions and the alleged objectionable  activities of Mr. Bagaria have no relevance presently.   

The question whether the detenu or any one on his  behalf is entitled to challenge the detention order  without the detenu submitting or surrendering to it has  been examined by this Court on various occasions. One of  the leading judgments on the subject is Additional  Secretary to the Govt. of India and Ors. v. Smt. Alka  Subhash Gadia and Anr.  case ((1992 Supp (1) SCC 496).  In para 12 of the said judgment, it was observed by this  Court as under:

       "12. This is not to say that the  jurisdiction of the High Court and the  Supreme Court under Articles 226 and 32  respectively has no role to play once  the detention \026punitive or preventive-  is shown to have been made under the law  so made for the purpose. This is to  point out the limitations, which the  High Court and the Supreme Court have to  observe while exercising their  respective jurisdiction in such cases.  These limitations are normal and well  known, and are self-imposed as a matter  of prudence, propriety, policy and  practice and are observed while dealing  with cases under all laws. Though the  Constitution does not place any  restriction on these powers, the  judicial decision have evolved them over  a period of years taking into  consideration the nature of the  legislation or of the order or decision  complained of, the need to balance the  rights and interests of the individual  as against those of the society, the  circumstances under which and the  persons by whom the jurisdiction is  invoked, the nature of relief sought,  etc. To illustrate these limitations,  (i) in the exercise of their  discretionary jurisdiction the High

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Court and the Supreme Court do not, as  Courts of appeal or revision, correct  mere errors of law or of facts, (ii) the  resort to the said jurisdiction is not  permitted as an alternative remedy for  relief which may be obtained by suit or  other mode prescribed by statute. Where  it is open to the aggrieved person to  move another Tribunal or even itself in  another jurisdiction for obtaining  redress in the manner provided in the  statute, the Court does not, by  exercising the writ jurisdiction, permit  the machinery created by the statute to  be by-passed; (iii) it does not  generally enter upon the determination  of questions which demand an elaborate  examination of evidence to establish the  right to enforce which the writ is  claimed; (iv) it does not interfere on  the merits with the determination of the  issues made by the authority invested  with statutory power, particularly when  they relate to matters calling for  expertise, unless there are exceptional  circumstances calling for judicial  intervention, such as, where the  determination is mala fide or is  prompted by the extraneous  considerations or is made in  contravention of the principles of  natural justice of any constitutional  provision, (v) the Court may also  intervene where (a) the authority acting  under the concerned law does not have  the requisite authority or the order  which is purported to have been passed  under the law is not warranted or is in  breach of the provisions of the  concerned law or the person against whom  the action is taken is not the person  against whom the order is directed, or  (b) when the authority has exceeded its  power or jurisdiction or has failed or  refused to exercise jurisdiction vested  in it; or (c) where the authority has  not applied its mind at all or has  exercised its power dishonestly or for  an improper purpose; (vi) where the  Court cannot grant a final relief, the  Court does not entertain petition only  for giving interim relief. If the Court  is of opinion, that there is no other  convenient or efficacious remedy open to  the petitioner, it will proceed to  investigate the case on its merit and if  the Court finds that there is an  infringement of the petitioner’s legal  rights, it will grant final relief but  will not dispose of the petition only by  granting interim relief (vii) where the  satisfaction of the authority is  subjective, the Court intervenes when  the authority has acted under the  dictates of another body or when the

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conclusion is arrived at by the  application of a wrong test or  misconstruction of a statute or it is  not based on material which is of a  rationally probative value  and relevant  to the subject matter in respect of  which the authority is to satisfy  itself. If again the satisfaction is  arrived at by taking into consideration  material, which the authority properly  could not, or by omitting to consider  matters, which it sought to have, the  Court interferes with the resultant  order. (viii) In proper cases the Court  also intervenes when some legal or  fundamental right of the individual is  seriously threatened, though not  actually invaded."  

In Sayed Taher Bawamiya v. Joint Secretary to the  Govt. of India and Ors. (2000 (8) SCC 630), it was  observed by this Court as follows:

       "This Court in Alka Subhash’s case  (supra) was also concerned with a matter  where the detention order had not been  served, but the High Court had  entertained the petition under Article  226 of the Constitution. This Court held  that equitable jurisdiction under  Article 226 and Article 32 which is  discretionary in nature would not be  exercised in a case where the proposed  detenu successfully evades the service  of the order. The Court, however, noted  that the Courts have the necessary power  in appropriate case to interfere with  the detention order at the pre-execution  stage but the scope for interference is  very limited. It was held that the  Courts will interfere at the pre- execution stage with the detention  orders only after they are prima facie  satisfied:

(i)     that the impugned order is  not passed under the Act 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.

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As we see it, the present case does  not fall under any of the aforesaid  five exceptions for the Court to  interfere. It was contended that  these exceptions are not exhaustive.  We are unable to agree with this  submission. Alka Subhash’s case  (supra) shows that it is only in  these five types of instances that  the Court may exercise its  discretionary jurisdiction under  Article 226 or Article 32 at the  pre-execution stage. The appellant  had sought to contend that the order  which was passed was vague,  extraneous and on irrelevant grounds  but there is no material for making  such an averment for the simple  reason that the order of detention   and the grounds on which the said  order is passed has not been placed  on record inasmuch as the order has  not yet been executed. The appellant  does not have a copy on the same,  and therefore, it is not open to the  appellant to contend that the non- existent order was passed on vague,  extraneous or on irrelevant  grounds".

This Court’s decision in Union of India and Ors. v.  Parasmal Rampuria (1998 (8) SCC 402) throws considerable  light as to what would be the proper course for a person  to adopt when he seeks to challenge an order of  detention on the available grounds like delayed  execution of detention order, delay in consideration of  the representation and the like. These questions are  really hypothetical in nature when the order of  detention has not been executed at all and the detenu  has avoided service and incarceration and when challenge  is sought to be made at pre-execution stage. It was  observed as under:

       "In our view, a very unusual  order seems to have been passed in a  pending appeal by the Division Bench  of the High Court. It is challenged  by the Union of India in these  appeals. A detention order under  Section 3(1) of the COFEPOSA Act was  passed by the authorities on  13.9.1996 against the respondent.  The respondent before surrendering  filed a writ petition in the High  Court on 23.10.1996 and obtained an  interim stay of the proposed order,  which had remained un-served. The  learned Single Judge after hearing  the parties vacated the ad interim  relief. Thereafter, the respondent  went in appeal before the Division  Bench and again obtained ad interim  relief on 10.1.1997 which was  extended from time to time. The writ  appeal has not been still disposed

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of.  

       When the writ petition was  filed, the respondent had not  surrendered. Under these  circumstances, the proper order  which was required to be passed was  to call upon the respondent first to  surrender pursuant to the detention  order and then to have all his  grievances examined on merits after  he had an opportunity to study the  grounds of detention and to make his  representation against the said  grounds as required by Article 22(5)  of the Constitution."   

In Sunil Fulchand Shah v. Union of India and Ors.  (2000 (3) SCC 409) a Constitution Bench of this Court  observed that a person may try to abscond and thereafter  take a stand that period for which detention was  directed is over and, therefore, order of detention is  infructuous. It was clearly held that the same plea even  if raised deserved to be rejected as without substance.  It should all the more be so when the detenu stalled the  service of the order and/or detention in custody by  obtaining orders of Court. In fact, in Sayed Taher’s  case (supra) the fact position shows that 16 years had  elapsed yet this Court rejected the plea that the order  had become stale.                             These aspects were once again highlighted recently  in Hare Ram Pandey v. State of Bihar and Ors. (2003 (10)  JT 114) and Union of India v. Amritlal Manchanda and  Ors. (2004 (3) SCC 75) after an elaborate and exhaustive  consideration of the matter.

         The High Court does not appear to have considered  the case in the background of whether any relief was  available to the writ petitioner even before the order  of detention was executed. The cryptic observation that  the decision " ms off the point", seems to be not only  evasive but lacks judicious application of mind.   Consequently, the order is liable to be set aside. It is  open to the respondent to surrender to custody as was  observed in Parasmal Rampuria’s case (supra) and take  such pleas as are  available in law to the person  concerned. These aspects were once again sufficiently  highlighted in  Amrit Lal Manchanda’s case (supra).   The appeal is allowed. The order of the High Court  is set aside and the writ petition filed in the High  Court shall stand dismissed.