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PETITIONER: STATE OF TAMIL NADU

       Vs.

RESPONDENT: P.K. SHAMSUDEEN

DATE OF JUDGMENT21/07/1992

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) THOMMEN, T.K. (J)

CITATION:  1992 AIR 1937            1992 SCR  (3) 587  1992 SCC  (3) 523        JT 1992 (4)   179  1992 SCALE  (2)52

ACT:      Conservation  of  Foregin Exchange  and  Prevention  of Smuggling Activities Act, 1974:      Section    3-Preventive   detention-Detention    order- Interference  by  High  Court on ground  of  inordinate  and unexplained delay in execution of-Justification of.

HEADNOTE:      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 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 consideration of the  counter-affidavit filed  by  the appellant vacated the  order  of  injunction. Thereafter  the respondent, a nephew of the detenu, filed  a writ 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  extraordinary  powers  to restrain  the execution of the detention order.      On  behalf  of the respondent, it  was  contended  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 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                                                        588      HELD: The delay in the execution of the detention order passed  against  the detenu, upon which the  High  Court  at Madras founded the relief it gave, had already taken   place by  the  date  writ  petition was filed  by  the  detenu  at

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Calcutta.   That the delay had taken place  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  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  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 B-D]      The  Additional Secretary to the Government of India  & Ors.  v. Smt. Alka Subhash Gadia & Ors., J.T. (1991) 1  S.C. 549, distinguished.      N.K. Bapna v. Union of India, (1992) 60 E.L.T. 13  S.C. and K.P.M. Basheer v. State of Karnataka & Anr. etc., [1992] 2 SCC 295, referred to.

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No. 392 of 1992.      From the Judgement and Order dated 3.1.92 of the Madras High Court in W.P. No. 9587 of 1991.      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      BHARUCHA, J. Special leave to appeal granted.      This  is an appeal against the judgment and order of  a 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  order  of detention  issued by it against one Sheik Ahamed Hajee,  son of                                                        589 Mammoo, under the provisions of the Conservation of  Foreign Exchange  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 petition in the  High Court  of  Judicature  at  Calcutta  (being  Writ   Petition No.C.O.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 July 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 been inordinate and unexplained  delay in the implementation of the detention order.  Emphasis  was placed  upon  the fact that an advocate  of  Coimbatore  had shown  an  affidavit  on 12th  November,  1991  wherein,  as

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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 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                                                        590          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   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 submission, 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.      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  Alka 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, when  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 Karnataka & 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 K.P.M. Basheer’s 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  Alka  Subhash  Gadia justifying interference with the detention order at the pre- detention  stage.   There is no dispute that  the  detention

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order  was passed under COFEPOSA, nor that it was sought  to be executed                                                        591 against the right person, nor that it had been passed for  a wrong  purpose,  nor  that  it had  been  passed  on  vague, extraneous  or  irrelevant grounds, nor that  the  authority which had passed it had no authority to do so.      It  is relevant also to note that the 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 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 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  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.                                                        592