Naresh Kumar Goel @ Naresh Goel vs The Union of India (UOI) and Others

Chandramauli Kr. Prasad, J.—This application has been filed for issuance of an appropriate writ, order or direction restraining the Respondents from giving effect to the order dated 4.9.2002 (Annexure-1) whereby the Petitioner has been directed to be detained by the order of the State Government in exercise of the powers conferred by Section 3(1)(ii) and (iii) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

According to the Petitioner he is one of the partners of M/s. Prakash Transport, a partnership firm having its principal place of business at Kolkata with branch offices all over India including one at Raxaul in the State of Bihar. The business of the firm is to transport goods by road on hired public carrier trucks on payment.

According to the Petitioner, on 28.8.2001, a truck bearing No. NAIKH-2715. owned by one Shri Vishwanath Prasad Kanu, a Nepalese citizen and driven by one Shri Sheikh Mohammad was hired by a Nepalese transportation firm M/s. Prakash International Carriers Pvt. Ltd., Kathamandu, Nepal for the purpose of taking goods from Petitioner''s firm''s godown at Raxaul to Nepal. It is the stand of the Petitioner that M/s. Prakash International Carriers Pvt. Ltd. is distinct and separate corporate entity owned by a Nepalese citizen and Petitioner has no concern at all with that. That truck so hired was detained by the Customs official at the Indian Land Customs Station at Raxaul and an idol kept in a wooden box was recovered from truck. Subsequently, the godown-cum-office of the Petitioner''s firm at Raxaul was also searched and from there also, an idol kept in a wooden box also recovered. On 29.8.2001, the statement of the driver of the said truck was recorded by the Customs officials, in which he had stated that, in fact, the Petitioner was the owner of the Transport Company and the manager at Raxual used to work under his orders.

On 10.9.2001, a letter from the Deputy Commissioner, Customs, Raxual dated 3.9.2001 was received by the Petitioner informing him about the seizure of the two idols and further observing that no one is turning from the local office at Raxaul, hence someone from head office be sent so that the inventory of goods may be prepared.

The Customs officials also searched the residential premises of the Petitioner at Kolkata on 11.9.2001 and it is the stand of the Petitioner that nothing incriminating was found or seized. Petitioner''s statement was also recorded on 11.9.2001 at Kolkata and on 29.11.2001. He also appeared before the Customs authorities in person at Raxaul in pursuance of the summons issued to him, Petitioner denied to have any knowledge or any connection in respect of the idols seized and attempted to be transported to Nepal. Later on a show cause notice dated 22.2.2002 was issued for imposition of the penalty. On 8.3.2002, other goods seized from the truck were released. The Customs department filed a criminal case bearing Customs Case No. 36 of 2001 in the Special Court of Economic Offences, Muzaffarpur against the Petitioner appeared and granted regular bail by the learned Sessions Judge by order dated 16.8.2002. Thereafter on 4.9.2001, an order detaining the Petitioner has been passed but in fact not detained till date. The last date on which the Petitioner appeared personally in the case is 20.12.2002.

Two separate counter affidavits have been filed on behalf of Respondent Nos. 2 and 5. The assertion of the Petitioner that he has nothing to do with the transportation of the idols, has been denied by Respondent No. 2 in the counter affidavit and referring to the statement of the driver and the manager, Respondent No. 2 has stated that, in fact, Birganj (Nepal) and Raxaul offices were managed by the Petitioner. According to Respondent No. 2, it is the Petitioner who was maneuvring and managing the whole act of transporting of idol from behind the curtain.

Respondent No. 5 in the counter affidavit has stated that the order of detention was sent to the Commissioner of Police, Kolkata for execution as the Petitioner usually resides there and inspire of several reminders, same has not yet been executed.

From the pleading of the parties what can be safely inferred that the Costoms officials on 28.8.2001 seized the truck from which an idol kept in a wooden box was recovered and on search conducted in the office of the transporter at Raxaul, another idol kept in a wooden box also recovered. The driver of the truck, in his statement recorded on 29.8.2001, has stated that the Petitioner is the owner of the transport company. Further, the search was made in the house of the Petitioner at Kolkata on 11.9.2001 and his statement was recorded on the said date. It is also clear that the Petitioner appeared in pursuance of the summons issued by the Customs officials and his statement was again recorded on 29.11.2001 at Raxaul. The Customs department issued show cause notice for penalty on 22.2.2002 and part of the goods seized from the truck at Raxaul were released on 8.3.2002. A criminal case was instituted against the Petitioner on 16.4.2002 in which the Petitioner was granted bail by order dated 16.4.2002 and the order of detention has been passed on 4.9.2002 but the Petitioner has not yet been arrested.

Mr. Rakesh Kumar appearing on behalf of Respondent Nos. 1 to 3 raises a preliminary objection in regard to the maintainability of the writ application. He submits that the order of detention has not yet been executed and at this stage, Petitioner can not invoke the remedy for quashing of the order of detention under Article 226 of the Constitution of India. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the ase of Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, and my attention has been drawn to paragraph No. 30 of the judgment which reads as follows:

As regards his last contention, detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 226 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain''s contention would mean that the courts should disregard all these time-honored and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the Appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The court 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 ground on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number viz., where the courts are prima facie satisfied (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 ground or (v) that the authority which passed if had no authority to do so. The refusal by the courts to use their 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.

Mr. Rakesh Kumar has further drawn my attention to the decision of the Supreme Court in the case of State of Tamil Nadu Vs. P.K. Shamsudeen, to contend that challenge to an order of preventive detention cannot be entertained prior to the execution of the order and in this connection, he has, drawn my attention to paragraph No. 7 of the judgment which reads as follows:

Clearly, the present case does not fall within the parameters out-lined 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 order was passed under Cofeposa, nor that it was sough to be executed against the right (sic) person, nor that it had been passed for a wrong purpose, nor that it had been passed on vague, extraneous or irrelevant ground, nor that the authority which had passed it had no authority to do so.

Mr. Navaniti Prasad Singh, however, appearing on behalf of the Petitioner submits that a writ application seeking to challenge an order of detention at pre-detention stage is maintainable. He points out that the scope for interference by this Court at this stage may be very limited but as a proposition of law, it cannot be said that in no circumstance, an order of detention can be questioned at pre-detention stage.

Having appreciated the rival submissions, I do not find any substances in the submission of Mr. Rakesh Kumar. In my opinion, as an abstract proposition of law, it cannot be said that in no circumstance, the power of judicial review can be exercised at pre-detention stage. It is one thing to say the circumstance under which the power can be exercised at pre-detention stage, then to say that in no circumstance the power can be exercised. In my opinion, if the power of judicial review can be exercised on fulfillment of certain conditions, it cannot be said that the writ application at pre-detention stage is not maintainable. While court''s power of review under Article 226 of the Constitution is untrammelled but being guided by self imposed restrictions it generally defers its power of review till arrest of the proposed detenu and exercises its discretionary power at pre-arrest stage only in exceptional cases. In fact, in the cases relied on by Mr. Kumar, the Supreme Court had enumerated the conditions in which the power of judicial review can be exercised at pre-detention stage. Hence, I overrule this preliminary objection of Mr. Kumar.

Mr. Singh submits that delay in issuance of order of detention vitiates its validity. He points out that the idol was recovered from truck when it was inspected on 28.1.2001 and not only this, criminal case was registered as back as on 16.4.2002 and the order of detention has been passed on 4.9.2002. This according to Mr. Singh is inordinate delay in issuance of the order of detention, which in his submission, itself vitiates the order of detention. He also points out that the delay in issuance of the order of detention can be legitimately termed to be an order issued for wrong purpose. In support of his submission, reliance has been placed on a decision of the Supreme Court in the case of Ahamed Mohaideen Zabbar Vs. State of Tamil Nadu and Ors, and my attention has been drawn to paragraph 3 of the judgment which reads as follows:

In reply to this contention, the State Government in its counter has stated that the show-cause notice was issued to the detenu under the Customs Act, 1962 on 4.5.1998 and the adjudication proceedings were over on 9.1.1998. The State Government, there fore, did not proceed with the proposal till then and took up the proposal for consideration only thereafter. The order of the Ministry of Law in that behalf was obtained on 2.11.1998 and the grounds of detention were framed on 18.11.1998 and the order of detention was passed on 23.11.1998. No other explanation has been given by the State Government for not passing the detention order earlier. The State Government has not explained why it thought it necessary to wait till the adjudication proceedings before the Customs Authorities were over since that was not necessary for exercising the power under the Cofeposa Act. In the absence of the satisfactory explanation as to why the State Government did not exercise the power earlier, it has to be held that delay in passing the order of detention was unreasonable. It will also have to be held that the explanation of the detaining authority as regards immediate need of detaining the detenu was not genuine.

Mr. Rakesh Kumar, however, submits that there is no inordinate delay in issuance of the order and hence, the order of detention does not suffer from any defect. In any view of the matter, he Submits that delay in passing the order of detention does not come within the mis chief of ''wrong purpose'' and as such, the validity of the order of detention is not fit to be gone into at the pre-detention stage. Reliance has been placed on a decision of the Supreme Court in the case of Union of India (UOI) and Others Vs. Muneesh Suneja, and my attention has been drawn to the following passage from para-7 of the judgment which reads as follows:

xxx 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 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 decision of this Court in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia and Sayed Taher Bawamiya v. Jt. Secy. to the Govt of India, we hold that the order made by the High Court is bad in law and deserves to be set aside.

To drive home the point that delay cannot lead to the inference that the detention order has been passed for a wrong purpose, Mr. Rakesh Kumar has referred to a Division Bench judgment of Allahabad High Court in the case of Rajendra Kumar Vs. State of U.P. and Another, and my attention has been drawn to the following passages from paragraph Nos. 7 and 8 of the judgment which reads as follows:

The contention that if a longperiod has elapsed between the offendingacttivity and passing of a detention order the same would be for a wrong purpose is, in our opinion, wholly fallacies.

xxx Thus where there is delay in passing the detention order it is the subjective satisfaction of the detaining authority which gets vitiated rendering the detention order invalid. The delay cannot lead to the inference that the detention order has been passed for a wrong purpose.

It is important to emphasise that there is no inflexible rule that whenever there is a delay in passing a detention order it must necessarily be held that the satisfaction on the detaining authority was vitiated rendering the detention order invalid. It will depend upon the facts and circumstances of each case and if there is satisfactory explanation for passing the order, the same cannot be held to be illegal or invalid.

xxx A conspectus of the authorities cited above would show that if there is a delay in passing the detention order and the same has not been satisfactorily explained, it will vitiate the subjective satisfaction of the detaining authority rendering the detention order invalid but the delay alone cannot lead to the inference that the order has been passed for a wrong purpose. The submission that the impugned detention order has been passed for a wrong purpose being based solely upon the alleged delay in passing thereof, has thus no merit and is liable to be rejected.

Having appreciated the rival submissions, I am of the opinion that the order of detention at this stage does not call for interference. From the judgments of the Supreme Court in the case of Alka Subhash Gadia (supra) and Muneesh Suneja (supra) it is evident that the courts should not interfere at the pre-detention stage excepting 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 ground (v) that the authority which passed it has no authority to do so, or (vi) Unexplained undue delay either in passing the order or execution thereof.

Bearing in mind the principles aforesaid, if one tends to examine the case of the Petitioner, it cannot be said that there is undue delay in passing the order of detention. The idol from the truck was recovered on 28.8.2001 and thereafter, the Customs authorities took the statements of the driver, agents of the Petitioner and it was only on 22.2.2002, that a show cause notice for penalty was issued. The criminal case was filed on 16.4.2002 and the order of detention had been passed on 4.9.2002. In the case of Muneesh Suneja (supra), the search was made on19.6.1997, detenu was arrested on 21.6.1997, was released on bail on 19.8.1997 and the order of detention was passed on 9.6.1998, i.e. about a year from the date of search. The plea of the detenu to invalidate the order on the ground of passing the order of detention belatedly was negatived by the Supreme Court. As regards the authorities of the Supreme Court in the case of Ahmad Mohaideen Zabbar (supra), the same is clearly distinguishable as the Supreme Court was examining the delay in issuance of detention order after its execution.

Much argument has been advanced to demonstrate that delay in passing the order comes within the expression wrong purpose" in which the order of detention can be quashed at pre-detention stage. The judgment of Allahabad High Court in the case of Rajeridra Kumar (supra) has clearly observed that delay cannot lead to the inference that the detention order has been passed for a wrong purpose but in my opinion, unexplained undue delay in passing the order of detention itself is the ground to interfere with the order of detention at pre-detention stage and hence, in my opinion, nothing (sic)rns on this issue.

Mr. Singh then contends that the order of detention was passed as back as on 4.9.2002 but till date, same has not been executed and on account thereof, the very purpose of the order of detention vitiated and on this ground alone, the order of detention is fit to be quashed. Learned Counsel points out that the Petitioner had personally appeared in the criminal case on 20.12.2002 and has filed the present writ application on 25.6.2003. He high-lights that if the Respondents had reason to believe that the Petitioner is absconding or concealing himself, nothing prevented them to proceed in the matter is provided u/s 7 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Thus, according to the learned Counsel, the order of detention has been passed in a casual manner and its very purpose is deleated by its non-execution for such a (sic) delay.

Mr. S.D. Yadav, Govt. Advocate appearing on behalf of Respondent No. 5 submits that the Petitioner resides in Kolkata and the State Government has made several correspondences with the Commissioner of Police, Kolkata for execution of the order and in this connection, reference has been made to the Memos dated 11.9.2002, 7.10.2002 and 18.6.2002 (Annexures-A, B and C of the counter affidavit of Respondent No. 5). He submits that in such circumstances, it cannot be said that the delay in execution of the order is fatal.

Mr. Rakesh Kumar, submits that delay in execution of the order does not vitiate the order of detention. I am of the opinion that delay in execution of the order in the present case is not fatal. The Supreme Court had the occasion to consider this question in the case of K.P.M. Basheer Vs. State of Karnataka and another, and in that case, delay of more than five months in executing the order without any reasonable or satisfactory explanation was found to be illegal. In the said case, in para 11, it has been observed as follows:

Under these circumstances, we are of the view that the order of detention cannot be sustained since the ''live and proximate link'' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the Appellant/detenu and detaining him. As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone, we are not dealing with other contentions raised in the memorandum of appeal as well as in the writ petition.

However, in the case of Manju Ramesh Nahar Vs. Union of India and Others, the effect of delay in execution of the order by more than one year was considered and it has been observed as follows:

The detention order was passed on 3.2.1997 but it was executed on 23.4.1998. Obviously, the effect of non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities giving rise, in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of Section 3 of the Act. As pointed out above, the execution of the order of detention long after it was passed would have the effect of vitiating the order as also the satisfaction of the authorities who passed that order.

The judgments of the Supreme Court in the cases of K.P.M. Basheer and Mahju Ramesh Nahar (supra), are after the orders of detention were executed. The Supreme Court had the occasion to consider the delay in execution of the detention order at pre-detention stage in the case of State of Tamil Nadu v. P.K. Shamsudeen (supra) in which it has been observed as follows:

It is relevant also to note that the writ petition in Calcutta was filed on April 5,1989. 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 April 5, 1989. 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 Calcutta High Court had on April 12, 1991 vacated the interim injunction 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 July 10, 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.

From the conspectus of the decisions of the Supreme Court, referred to above, it is evident that validity of the order of detention after its execution and before its execution, is to be examined differently. The delay is not such that it requires interference at pre-detention stage by issuance of high prerogative writ of mandamus directing the authority to forebear from executing the detention order passed.

In the result, I do not find any merit in this application and it is dismissed accordingly.