Ashok Kumar alias Ashoki vs Union of India

G.S. Chahal, J.

Ashok Kumar alias Ashoki has come to this Court in this petition under Articles 226 of the Constitution of India for quashing the detention order/grounds of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which order though passed has not yet been served on the petitioner.

The petitioner pleaded that this residential house was searched by the Enforcement Directorate, Jalandhar, on April 8, 1992, but no incriminating articles were recovered. Signatures of the petitioner were obtained by the officials of the Directorate on some blank papers. He signed those papers while in nervous condition and under duress as it was given out that he would otherwise be tortured and harassed. After the search, he was told to visit the office at Jalandhar on the following day i.e. April 29, 1992. He complied with those directions and thereafter he was informed of his arrest under Section 8 of the Foreign Exchange Regulation Act, 1973 and was produced before the CJM Jalandhar, where he applied for bail. This prayer was, however, declined. His prayer for bail made before the Additional Sessions Judge was, however, allowed on May 5, 1992. That since after being allowed bail, the petitioner has not committed any act which may warrant either cancellation of his bail or which may confirm his evading the criminal case. The investigation by the enforcement agency is in progress, but it will take sometime before the investigation is completed. That the petitioner apprehends his detention under Section 3(1) of the COFEPOSA. The real reason appears to be that since the petitioner had been released on bail, the authorities concerned are making an effort to detain him. The enforcement staff has given him the information that detention order has been passed and he will be detained. He apprehends an illegal order for his detention for the obvious reason that he has been granted bail by the Court of Additional Sessions Judge. There is, thus, an extraneous reason for ordering the detention of the petitioner. That the detention is a serious incursion of the liberty of an individual and unless proper mind is applied and also conditionalities as provided by the Constitution are satisfied, the order of detention would be illegal. The aforesaid circumstances have been overlooked and the detention order is being issued in a mala fide manner just to ensure that the petitioner does not remain on bail for the offence for which he is being proceeded against by the Enforcement Directorate. That is also appears that the order is being passed in a mechanical manner without appreciating the facts. That in view of the observations of the Hon''ble Supreme Court in N.K. Bapna v. Union of India and others, JT 1992(4) SC 49, it is not necessary for the petitioner to wait till the detention order is served upon him for challenging that order.

In the return filed, the jurisdiction of this Court has been challenging an the following reply has been filed :

"The matter regarding jurisdiction of the Courts in the cases where persons have not been detained was considered by the Hon''ble Supreme Court of India in the matter of Addl. Secy. to Government of India v. Smt. Alka Gadia and others, (sic). The same question came to be considered again in the matter of N.K. Bapna v. Union of India and others. The Hon''ble Supreme Court of India has emphasized that the Courts can interfere at the predetention stage in the following type of exceptional cases : (1) 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 no authority to do so. The discretion is that of the court and the detenu cannot claim it as a matter of right. The detention order has been passed in accordance with the COFEPOSA Act by the authority empowered under it and the law does not envisage the disclosure of the person against whom detention order in passed, prior to the service of the order on the detenu as the same will frustrate the very purpose of the Act. Accordingly in the present case since the person is absconding, the grounds of detention and order cannot be served on the petitioner until he surrenders. Therefore, the case does not come under the jurisdiction of the High Court."

The respondent has not given any facts on the basis of which the detention order has been passed nor it has given the detail of the process carried out by the detaining authority for passing that order. It has been specifically pleaded by the petitioner that these orders are being issued since the petitioner had been allowed bail and the authorities want to ensure his detention in jail during investigation stage. These facts have, however, not been contradicted and the respondent has felt satisfied by taking the objection to the jurisdiction. In Smt. Alka Gadia''s case (supra), the jurisdiction of this Court has not been absolutely excluded. At the preexecution stage, the Court can examine, if the order has not been passed for any wrong purpose or for extraneous grounds. Since the petitioner has specifically alleged that the purpose of passing the detention order is just to keep him in custody after he has been allowed bail by the Court which plea has not been controverted, there is force in the contention of the learned Counsel that the order has been passed for extraneous reason and for wrongful purpose namely the detention of the petitioner in spite of his bail. The provision of the COFEPOSA authorising preventive detention cannot be utilised for punitive purpose.

In the light of the above discussion, I hold that the detention order has been passed for extraneous reasons and for wrongful purpose.

I hereby allow the petition, and quash the detention order passed against the petitioner on the basis of the prejudicial activity regarding which he was arrested on April 9, 1992.