Kumar Aggarwal vs State of Punjab and Others

P.K. Jain, J.—The petitioner has filed this petition under Article 226 of the Constitution of India for the issuance of a writ of certiorari for quashing detention order No. 1/58/95/CH/ III(Cp) 1533, dated 29-9-1995, passed u/s 3(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called ''the COFEPOSA) by the Secretary, Government of Punjab, Department of Home, and for the issuance of a direction to the respondents not to arrest the petitioner during the pendency of the case.

This petition arises out of a search of the residential premises of the petitioner conducted by the Customs Officers on 29-3-1995, as a result of which 6 gold biscuits of 10 tolas each bearing foreign markings and considerable foreign currency including Indian currency, were recovered. The statement of the petitioner was recorded u/s 108 of the Customs Act, He was arrested u/s 104 of the Customs Act, was produced before the Judicial Magistrate and was remanded to judicial custody. He was successful in obtaining bail on 12-6-1995 from this Court. Thereafter the Customs Department moved an application for custody of the petitioner for the investigation of the case but ultimately the petitioner secured bail from this Court on 12-6-1995. According to the averments in the petition, a detention proposal was made by the Assistant Commissioner of Customs (date not given) and a show cause notice was also issued to him. In pursuance of the said proposal, a detention order dated 29-9-1995 has been issued.

The petitioner has challenged the detention order at the pre-execution stage on the grounds that he was not involved in any illegal activity, that the department knew very well that he had been released on bail, that thereafter only with a mala fide intention of keeping the petitioner in jail the impugned detention order has been passed. It has been further stated that the detention order has been passed for extraneous reasons and after a considerable delay in passing the order in execution thereof.

I have heard the learned counsel for the petitioner, who has placed reliance upon certain decisions of the apex Court as well as of this Court i.e. P.U. Iqbal Vs. Union of India (UOI) and Others, , N.K. Bapna v. Union of India 1992 (3) ACLR 166 (SC), Ashok Kumar alias Ashoki v. Union of India All India Criminal LR 676 (sic), Gurmeet Singh alias Ruby v. Union of India, All India Criminal LR 186 (sic), and Gulzar Singh alias Kalu v. Union of India, All India Criminal LR 14 (sic). It has been argued by the learned counsel that there has been delay in passing the detention order as well as in not executing the same; that after the bail was granted the impugned detention order has been passed for extraneous and irrelevant reasons and as such the impugned detention order is liable to be quashed.

Having heard the learned counsel for the petitioner, I do not find any merit in the present petition. The apex Court has examined the scope of exercising the extraordinary, and quitable jurisdiction under Articles 32 and 226 of the Constitution in a matter like the present one. In Additional Secretary to Government of India v. Smt. Alka Subhash Gadia 1992 SCC 301, after reviewing the case law regarding the challenge to a detention order at the pre-arrest stage, their Lordships explained the position of law as follows:-

"The jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available, Courts cannot disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, 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, the Courts have power to entertain grievances against any detention order prior to its execution and they have used it in proper cases although such cases have been few and the grounds on which the Courts have interfered with them at the pre-execution stage are necessarily very limited in its 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 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 the execution of 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."

It was made clear by their Lordships that the detenu is not entitled to get the order of detention stayed prior to its execution. It can be challenged on its pre-execution stage on the limited grounds available.

In the present case, the impugned detention order, copy of which has been placed on the record, prima facie reveals that gold biscuits bearing foreign markings and foreign currency were recovered from the residential premises of the petitioner. The said order further reveals that the department has in its possession some further evidence to show that the petitioner has been indulging in illicit transactions in foreign currency as well as gold. The mere fact that bail has been granted to the petitioner in the case registered u/s 104 of the Customs Act, in itself, is no ground to interfere at the pre-execution stage. The impugned detention order has been passed by a Competent Authority under the Act. It is sought to be executed against a proper person. The purpose of passing this order cannot be said to be wrong, nor it can be said that the detention order has been passed on vague, extraneous or irrelevant grounds. The present is not one of the rare cases envisaged by their Lordships of the Supreme Court in Smt. Alka Subhash Gadia''s case 1992 SCC 301 (supra), where the Court should interfere at the pre-execution stage.

As a result of the above discussion, I do not find any merit in this petition and the same is hereby dismissed in limine.