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Judgment
J.B. Garg, J.—Manoj Kumar Sharma alias Goga of Phagwara, District Kapurthala has moved the present petition under Articles 226/227 of the Constitution of India challenging the detention order dated 16.3.1993 issued u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Anncxure P-1).
The petitioner has averred that the alleged prejudicial activities pertained to 4.12.1992 whereas the impugned order has been passed on 16th of March, 1993 and there was no nexus between the alleged prejudicial activities and the impugned order of detention; that the petitioner had been on bail since 8.12.1992 and there was no allegation that the petitioner indulged in any particular activity regarding sale or purchase of foreign currency during the aforesaid period and the impugned order has been passed only to thwart the order of bail; that earlier the order of detention was passed against Ashok Kumar, a brother of the petitioner whose premises were raided and it has been quashed by this Court in Writ Petition No. 491 of 1992.
In a reply filed on behalf of the respondent-Union of India it has been averred that no cause of action has arisen to the petitioner inasmuch as the detention order has not yet been served; that the detention order of Ashok Kumar, a brother of the petitioner related to the seizure of foreign exchange/documents on 4.12.1992; that as a consequence of the search of the petitioner and his brother on 4.12.1992 foreign exchange in the form of U.S. Dollars 3910, U.K. Pounds 3185 and similarly some other Canadian and Australian currencies were recovered valued at a sum of Rs. 7,06,000/- that earlier a petition was moved and it was dismissed on 22.7.1993. There has been no change in the circumstances of the case.
Shri R.S. Ghai, the learned Counsel for the petitioner has pointed out that writ petition No. 118 of 1994 in respect of Ashok Kumar brother of the petitioner whose residential premises were searched on 4.12.1992, has been accepted and the detention order has been set aside on 6.5.1994 and this judgment is reported as Ashok Kumar alias Shoki v. Union of India 1994 (2) Rec CR 708 and where the detention order against the co-accused has been set aside there shall be no justification that the impugned order should remain hanging against the petitioner. In support of this contention the learned Counsel has referred to Avinash Chander v. Union of India and Anr. 1990 (2) Rec CR 358 where the detention order passed against brother on similar grounds had been P-3 quashed it was observed that there was no logic in concluding that the present petition was not maintainable. This plea could not be controverted here by the learned Counsel for the respondent-Union of India. In Trilok Nath Mittal v. Union of India and Ors. 1994(2) CC C 125 (HC) referred to by the learned Counsel for the petitioner it was observed that where detention order passed against another co-accused was quashed as in the case now in hand inasmuch the premises pertained to the brother there appeared to be no reason why this petition should not be considered on the same footing.
On behalf of the respondent-Union of India, it has been argued that the detention order has not been executed and the petitioner should not be entitled to the relief at pre-execution stage. However, to meet this plea attention has been invited to Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, and according to the aforesaid authority if the impugned order has been passed on vague grounds it could be interfered with.
Besides this, the search of the premises of Ashok Kumar the brother was conducted on 4.12.1992. The petitioner was remanded to judicial custody up to 8.12.1992. The subsequent period till 16.3.1993 in issuing the impugned order has not been explained and the inaction on the part of the executive authority in issuing the detention order rendered it null and void, and the distinguishing feature is that the order qua the primary suspect has been set aside as seen above.
In view of the reasons given above, the present petition succeeds and the impugned order Annexure P-1 is quashed qua the petitioner.