Pakhar Singh vs Union of India

G. S. Chahal, J.

Pakhar Singh petitioner has come with this petition under Articles 226/227 of the Constitution of India for quashing the order of detention F. No. 673/56/76Cus. VIII dated 11111975 (Annexure P. 1) passed by respondent No. 1 and also order of the Competent Authorityrespondent No. 2, forfeiting the properties mentioned in JUDGMENT No. F. CA/(15)/7179/1168, dated 29101980 (Annexure P.2) under section 6 (1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as `the SAFEMA'') and for setting aside all consequential orders thereof.

The petitioner has averred that he left India sometime in 1976 for U.K. and since thereafter not returned to India. That a notice under section 6 (1) of the SAFEMA is alleged to have been issued by the Competent Authorityrespondent No. 2 to the petitioner. This notice is alleged to have been issued on the basis of order of detention dated 11th November, 1976 passed by respondent No. 1 purported to have been issued under section 3 (1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). Copy of this order is Annexure P.1. The petitioner has not been served with the said detention order nor he was arrested and on the date of passing of the order he was not in India that the detention order had been passed malafide at the behest of the Enforcement Officers, who have falsely sponsored the case of the petitioner for detention during emergency. The said Detention JUDGMENT was passed during emergency only and the declaration under section 12A of the COFEPOSA was also made. This was special provision and the emergency having been lifted in March. 1977, the provision elapsed and as such declaration made under section 12A of the COFEPOSA had no effect. The fact that the petitioner was out of country was not kept in mind by the Detaining Authority while passing the order under Section 3 (1) and the declaration undersection 12A of the COFEPOSA. No grounds for detention were framed and formulated simultaneouly with the orders and as such the order was non est and nullity in law. That the petitioner having been detained in London Jail for a period of four years in connection with a Drugs Act case the purpose of the detention order has since been served. That he has now learnt from the relations of his previous wife Smt. Sukhjit Kaur that properties had been forfeited under the provisions of sections 6(1) and 7 (1) of the SAFEMA. That in fact he has no connection with the properties as the same belong to his wife Smt. Sukhjit Kaur with whom his marriage was dissolved by a decree of divorce, which decree became final on 8th July, 1980.

The petition has been contested and certain preliminary objections have been made to which referenfce shall be made presently. The record relating to the detention was produced by the counsel and he had conceded at the bar that no grounds of detention had been prepared and only history sheet of the petitioner had been prepared which was sent to the detaining authority and on the basis of that history sheet, an order of detention was passed.

The main plea of the petitioner is that no grounds for detention were formulated simultaneously and contemporaneously by the detaining authority and in fact no grounds had been prepared till date which fact is not disputed at the bar. Learned counsel for the petitioner further urges that in view of the fact that no grounds for detention had been prepared it is for the respondents to satisfy the Court that there was sufficient material for the subjecti�e satisfaction of the Detaining Authority before passing of the detention order and the mere statement that the petitioner had slipped out of India fearing his detention on account of his involvement in FERA will not justify the detention order.

The contention of the learned counsel is that under section 12A, the authority was not obliged to disclose to the detenu the grounds on which orders/had been passed and the provision of section 3 (iii) stood modified to the extent that the detaining authority was not to furnish grounds within the period specified in that subsection, it, however, did not absolve the authority from its duty to formulate the grounds.

In Krishna Murari Aggarwala v. The Union of India, AIR 1975 Supreme Court 1877, their Lordships held :

"Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory."

In Mohiuddin Tayab Sony v. The State of Maharashtra and another, 1980 Crl. L.J. 1040, the Division Bench of Bombay High Court made the following observations :

"24. Once a prima facie case is made out by the petitioner then respondent is obliged to place, the relevant material before the Court. If a prima facie case is made out indicating that the said satisfaction is not founded on any material or order issued is not in conformity with the mandatory provisions of the Act then burden cannot be discharged by the detaining authority by merely, filing affidavit denying everything. In this particular case it is an admitted position that till today grounds for detention are neither formulated nor prepared or signed by the detaining authority. In these circumstances it was the duty of the detaining authority to satisfy the court about the existence of the material and that he has not acted in a mechanical or cavalier manner while exercising the power. The detaining authority owes a duty to the detenu as well as to the court. An obligation of the detaining authority to the court is to satisfy the court that he has acted in accordance with law. Therefore even if the law permits that the detaining authority need not communicate the grounds of detention to the detenu unless he is detained the detaining authority is not wholly absolved of its responsibility and obligation to the court when a prima facie case is made out by the petitioner and rule nisi is issued by the court. In such a case the counter affidavit by the detaining authority at least must broadly indicate the nature of the prejudicial activities or the material before him from which on inference could be drawn in favour of the detaining authority that there was some material before him on the basis of which subjective satisfaction could be arrived at. It is well settled that judicial scrutiny cannot be shut out merely on the strength of ipse dixit of the detaining authority."

In Lallubhai Jogibhai and others v. The Union of India and others, 1992 Criminal Law Journal 2155 of Division Bench of Gujarat High Court the detentions were held to be invalid as no grounds for detention had been formulated and on that basis the proceedings under the SAFEMA were also held to be illegal and without jurisdiction.

The respondent has challenged the petition on the basis that it suffers from laches as the order was passed in the year 1976 and the petition has been filed in the year 1992. Learned counsel for the petitioner has urged that whenever any fundamental right of the petitioner is interfered with, the Court will not refuse the relief on the grounds of laches. The relies upon the observation of Ramchandra Shankar Deodhar and others v. The State of Maharashtra and others, AIR 1974 Supreme Court 259, which are quoted as under

"... It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It may be noticed that that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannoteasily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like"

In Mohiuddin Tayab Sony''s case (supra) the petitioner had been away from India and had explained that he could not challenge the order of detention due to emergency and suspension of fundamental rights. Relying upon the observations of Ramchandra Shankar''s case (supra) it was held that there was no inordinate or unexplained delay.

The petitioner has stated that after going abroad, he had been lodged in jail at London, he was not thus a free agent and if efforts had been made by the Detaining Authority, he could have been served with the order. No order having been served upon him relief cannot be refused to him on the ground of laches.

The respondents have also raised objections to the entertainment of petition at preexecution stage. Reliance has been placed on the observations of their Lordships in Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another, 1992 Supreme Court Cases (Crl.) 301, I may, however, state that this judgment does not place complete embargo on the powers of the Court to entertain and examine the grievances against the detention order prior to its execution, wherein it was held that :

"... 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 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 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, (ii) 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 preversion of the law in question."

In the present case the petitioner has shown that no grounds were in existence before the Detaining Authority for subjective satisfaction before the passing of the order and in this situation it can be said that the order was passed for extraneous reasons. It is one of those cases which fall under a category in which the Court should entertain and examine the grievance of the petitioner against the detention order.

The respondents have also taken the objections with respect to the form of the petition and the reliefs claimed. Since the petitioner has mainly challenged the validity of the order of detention he had a right to move a petition for habeascorpus to protect his liberty. Once this order of detention is held to be invalid every other proceedings based on that detention order have to fail and the Court can always formulate the relief. No legal objection can thus be made to the form of the reliefs claimed.

In the light of the discussion made, I accept the petition and quash the detention order Annexure P. 1 and as a necessary corollary, the order Annexure P. 2 for forfeiture of property has to fail and is held to be illegal and is, hereby, quashed.