Ashok Kumar alias Ashoki vs Union of India and ors.

G. S. Chahal, J

This judgment shall dispose of these two connected Criminal Writ Petitions Nos. 123 of 1993 and 124 of 1903 as common facts and question of law are involved there.

The petitioners have sought quashing of the detention order which though passed have not been served upon the petitioners. Further direction has been sought to restrain the respondents from arresting and detaining the petitioners in connection with said orders under Section 3(1) of the Conservation of Foreign Exchange and Prevention or Smugling Activities Act, 1974.

For the decision of the present writ petitions, the facts stated in Crl. Writ Petition No. 123 of 1998 may be referred to

"On 28th April, 1992, residential premises of Ashok Kumar alias Ashoki petitioner at Phagwara were searched by the officers of the Enforcement Directorate, Jalandhar. However, nothing was recovered. The signatures of the petitioner were obtained by the officers of the Directorate on some blank papers under duress. He was then directed to appear before, the officers at Jalandhar on 29th April, 1992. On his visit he was detained and he learnt that he was being arrested in criminal offence under section 8 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the Act). He was then produced before the Chief Judicial Magistrate, Jalandhar and bail was applied but the same, was declined. On 5th May, 1992 the Additional Sessions Judge, Jalandhar allowed bail to the petitioner and the order is Annexure P2. That since after 5th May, 1992, the petitioner was not involved in prejudicial activities nor has he evaded the criminal case which may justify the cancellation of bail. Apprehending his detention under section 3(1) of the Act, the petitioner moved a Criminal Writ Petition No. 491 of 1992 and all the facts were stated in that writ petition, which was allowed by this Court vide order dated 14th September, 1992 and one of the findings recorded was that the detention was for extraneous reasons and for wrongful purpose. It had also been found that the respondents had not given any fact on which the detention order had been passed nor had given details of the process carried out by the Detaining Authority for passing of that order."

On 4th December, 1992, the officers of the Enforcement Staff again visited the house of the petitioner and during search recovered the Indian Currency to the extent of about rupees seven lacs as also foreign currency which on conversion to Indian Currency amounts to rupees six lacs In connection with this recovery he was arrested and produced before the Magistrate on 5th December, 1992 and was remanded to judicial custody, upto 8th December, 1992. He was, however, released on bail by the Chief Judicial Magistrate on the same day. Recovery had been challenged by sending telegram by the wife of the petitioner and version given is that the recovery in fact was effected from one Sudhakar Verma and had been falsely foisted on him. That in another Crl. Writ Petition No. 790 of 1992 the order was passed by this Court staying the arrest of the petitioner. That same police officers had come to arrest the petitioner stating that he was ordered to be detained and the petitioner apprehended his detention under the COFEPOSA Act. That CrI. Writ Petition No. 790 of 1992 had been dismissed as infructuous as it had been stated at that stage that no detention order Lad been passed against the petitioner. That having obtained bail by the petitioner in both the cases the authorities had considered that only way to keep him in custody was to pass detention order under the COFEPOSA. There is, however, nothing on the facts or law which could satisfy the detaining authority that the petitioner was likely to indulge in activities which may justify his detention order, That authorities with mala fide intention want to detain the petitioner under the COFEPOSA. The order is being passed on account of vindictiveness and without there being material to cause bona fide satisfaction of the respondents for ordering detention of the petitioner under the COFEPOSA.

The respondents have taken the plea that the petition was not competent. That the petitioner is habitual offender. The previous order of detention against the petitioner had been quashed by this Court on technical grounds. The house of the petitioner was searched on 4th Dec., it 92, on the basis of specific information that he alongwith his brother was indulging in unauthorised sale and purchase or foreign exchange. This search was carried out in the presence of gazetted officer of the department and two independent witnesses and the following recoveries were made :

1 . U. S. $ 3910

U. K. 13185

Can. $ 6175

UAE Dr. 1000

Aus. $ 1000

D.M. 750

Gylden 3185

One pay order of Bank of America for U.S. $ 251; and Indian currency: 7,06,000/and incriminating documents 6 loosesheets.

The petitioner was apprehended at the spot. The respondents have no personal enemity with the petitioner. The detention order has been passed by the detaining authority after due application of judicial mind and after due subjective satisfaction.

Since the petitioner had taken the objection that the order was passed for extraneous reasons, the standing counsel for the Union of India produced the record for the perusal of the Court. On examining the record prima facie it cannot be said that. the same has been passed for any extraneous reasons. The order passed in Criminal Writ Petition No. 491 of 1992 had been passed on technical ground but the same does not bar the detaining authority from taking action under the COFEPOSA after further prejudicial activities had been indulged into. In Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another, 1991(1) Recent Criminal Reports 667 : 1992 Supreme Court Cases (Cri) 301 . Their Lordships examined the real question of law as to whether a detenu or any one on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it and if so, in what type of cases. As a corollary to this question, the incident question as to whether detenu or any one on his behalf is entitled to obtain the detention order and the grounds on which detention order is made before the detenu submits to the order was replied to, In respect to the first question, Their Lordships observed that the Courts have the powers to interfere even before the detention order is served or if the detention is effected, but that such power has to be exercised sparingly and in exceptional cases. To quote :

"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, (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 not authority to do so. The refusal by the courts to use their extra ordinary powers of judicial review to enterfere 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 perversion of the law in question."

With respect to corollary Their Lordships made the following observations:

"In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first instance, as stated earlier, the Constitution and the valid law made thereunder do not make any, provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the preexecution stage of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the preexecution stage, though such cases have been rare. This only emphasises the fact that the Courts have power to interfere with the detention order even at the preexecution stage but they are not obliged to do so nor will it be proper for them to do so save, in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles"

Keeping in view the principles evolved by their Lordships quoted above the present case does not justify the exercise of discretion of this Court in interfering in the enforcement of the detention order before its execution. I, hereby, dismiss both these petitions.