Tejinder Singh Makkar vs State of Punjab and others

Adarsh Kumar Goel, J.—The appellant is aggrieved by order of the learned Single Judge dismissing the writ petition against the order of detention dated 5.3.2004 u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "the Act").

Writ petition challenging the said order was filed on 13.8.2007 at pre- detention stage. It was mentioned that investigation was conducted by the Directorate of Revenue Intelligence, Ahmedabad (DRI) as to the allegation of duty evasion by various 100% Export Oriented Units (EOU) by indulging in clandestine removal of duty free imported and indigenous raw materials without payment of duty. Statement was made by one Roopchand Jain on 4.12.2000 indicating involvement of the petitioner in illegal activities in supplying forged Advance Licences/AROs on commission basis. Statement was also made by one Hastimal Jeevraj Jain on 4.1.2001 that he was introduced to the petitioner by Roopchand Jain for doing this illegal business. Statement of the petitioner was recorded by DRI on 11.5.2001, wherein he was said to have admitted his role in the racket. Notice was issued to the petitioner proposing to arrest him. Thereafter, the matter of preventive detention of the petitioner was taken up on a proposal from the DRI. The petitioner was arrested by the custom officials on 30.9.2003 and was produced before the Court of Additional Chief Metropolitan Magistrate, Ahmedabad. Thereafter, the impugned order of detention was passed, which was never executed.

The petition was contested, inter alia, on the ground that the detention order was passed at Gandhinagar, Gujarat. As the petitioner has failed to surrender, there was no delay in executing the detention order. The order of detention was justified to prevent the petitioner from indulging in illegal activities of evasion of customs and central excise duties.

Contention raised on behalf of the petitioner was that since he apprehended execution order of detention at Ludhiana, the petition was maintainable in this Court.

Learned Single Judge held that this Court had the territorial jurisdiction to entertain the petition as violation of right to life and liberty was alleged in the jurisdiction of this Court, as held in Mrs. Arvind Shergill v. Union of India, 1999 (4) RCR (Crl.) 781. It was further held that in absence of order dated 5.3.2004 and any material to indicate as to what happened after 4.6.2004, when the petitioner was declared a proclaimed offender, it was improper to quash the order which was not on record. Reliance was placed on the judgment of the Supreme Court in Surinder Singh Vs. Central Government and Others, .

We have heard learned counsel for the parties.

Vide interim order dated 27.5.2008, operation of the impugned order was stayed.

Learned counsel for the appellant relies upon a judgment of this Court in Abhey Ram Jain v. Union of India and another (in Crl. Writ Petition No. 143 of 2003) dated 20.2.2003 quashing the order of detention on the ground that 7- 1/2 years had elapsed and the order had not been executed which was upheld by the Hon''ble Supreme Court in SLP (Crl.) No. 3986 of 2003 decided on 13.7.2007. It was, however, made clear that if the circumstances so warranted, fresh order can be passed. Reliance has also been placed on judgment of this Court dated 21.3.2007 in C.W.P. No. 1181 of 2006 (Narinder singh Lottye v. State of Punjab and others), wherein following the judgments of the Hon''ble Supreme Court in Rajinder Arora Vs. Union of India (UOI) and Others, , order of detention was quashed. Reliance has also been made on the judgment of the Hon''ble Supreme Court in Alpesh Navinchandra Shah v. State of Maharashtra, 2007 (2) RCR (Crl.) 180 : 2007 (1) RAJ 985 (SC). Reliance has also been placed on the judgment of this Court in Adishwar Jain v. Union of India and another, [2006] 2 RCR Cri 561 holding that LPA will lie against the judgment of the learned Single Judge with regard to validity of prevention detention.

In the affidavit filed on behalf of Additional Secretary to Home Department, Government of Gujrat dated 14.7.2009, it is stated that the appellant was avoiding service of the order of detention.

Mr. Thiara appearing for the Central Government, states that liberty should be left to the appropriate Government to pass a fresh order in case order of detention is to be quashed.

Having regard to the fact that the order of detention was passed five years ago and was for a period of one year and neither the order has been executed nor any satisfactory explanation given for not executing the same and also keeping in view the judgments relied upon by the appellant, we are of the view that the order of detention is liable to be quashed.

Accordingly, the impugned order is quashed with liberty to the concerned authorities to pass a fresh order if and when warranted.