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CASE NO.: Appeal (crl.) 122-123  of  2001

PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: MUNEESH SUNEJA

DATE OF JUDGMENT:       30/01/2001

BENCH: S. Rajendra Babu & S.N. Variava.

JUDGMENT:

J  U  D  G  M  E  N  T RAJENDRA BABU,  J. :

       Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J

   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 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 before the  High  Court  of  Delhi challenging  the validity of the said detention order  which was,  however, withdrawn on 15.7.1998 with liberty to file a fresh  writ petition, if need be.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 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 and recovered Indian currency of Rs.  3 lakhs,  8 pieces of yellow metal appearing to be gold in the form of biscuits of 110 tolas and Deustche Marks 5300/-.  It 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  the  Court  of Additional 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

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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 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.

   This  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.  Smt.  Alka Subhash Gadia & Anr., 1992 Supp.  (1) SCC 496, which made it clear   that  the  courts  should   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 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  search  made on the residential  and  business premises  of  the  respondent and detention order  had  been passed  in  Delhi, though upon the information 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 amount recovered either in the shape of  Indian  currency and foreign currency or the quantum  of gold  and  the  enactments  such  as  the  Foreign  Exchange Regulation  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

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further pointed out that there is inordinate delay in making the order of detention and no effective steps were taken for executing  the  same,  as  noticed by the  High  Court  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  Golam Hussain  alias Gama v.  The Commissioner of Police, Calcutta &  Ors.,  1994 (4) SCC 530, T.A.  Abdul Rahman v.  State  of Kerala & Ors.  1989 (4) SCC 741, and Ahamed Mohaideen Zabbar v.  State of T.N.  & Ors., 1999 (4) SCC 417.

   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 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 the liberty 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  by  the  learned Additional Solicitor  General.   This Court  has been categorical that in matters of pre-detention cases  interference of court is not called for except in the circumstances  set  forth by us earlier.  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 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 for  quashing  the  order of detention  at  a  pre-detention stage.   Therefore, following the decisions of this Court in Additional  Secretary to the Government of India & Ors.   v. Smt.   Alka  Subhash Gadia & Anr., (supra) and  Sayed  Thaer Bawamiya  v.   Joint Secretary to the Government of India  & Ors.  (supra), we hold that the order made by the High Court is bad in law and deserves to be set aside.

   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  still 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  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

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may have observed in the course of this order.

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