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2014 (3) TMI 1097 - HC - CustomsWrit of habeas corpus - Detention order - Jurisdiction of Court to entertain the appeal - proceedings under COFEPOSA - Held that: - Since the detention order stands executed as of now, there cannot therefore exist any bar in considering the merits of the grounds of challenge urged by the petitioner even if some were earlier raised in unsuccessful pre detention challenge. The consideration of the grounds urged is only after execution of the detention order. Even otherwise the main ground of non-placement and non-consideration of the said two documents was not raised by the petitioner before the Bombay High Court and thus, there was no reference to these two documents in the entire judgment. The respondents fail to support their contention with any binding precedent where the Courts have refused to consider the challenge of a detenu in a Habeas Corpus Petition after execution of the detention order, merely because some of the grounds were earlier raised without success in any pre execution challenge. The decision of Full Bench in Ram Kumar's case (supra) cited by the learned counsel appearing for the Sponsoring Authority is also not relevant in the present factual scenario. This Court cannot permit the authorities to take shelter of such technical pleas in the matter of a Writ of Habeas Corpus in a preventive detention matter. Territorial jurisdiction - Held that: - it is seen that the petitioner has a residence in the State of Haryana. The Detaining Authority had deputed its representative for the purpose of service of detention order and grounds upon the petitioner in State of Haryana and thereupon the detention order and grounds were served upon him in the State of Haryana, albeit after the orders of this Court. The petitioner was detainied in preventive detention custody at Central Jail, Ambala in Haryana. He has also received the rejection of his pre detention representation in Haryana. Therefore, merely because the respondents have doubts on the bona-fides of the petitioner in taking a residential premises within the jurisdiction of this court although it has proximity to his factory at Baddi, it cannot be held that no part of cause of action has arisen within the jurisdiction of this Court to consider the challenge to the detention order even after its execution in Haryana. The Sponsoring Authority as well as the Detaining Authority had failed to take requisite care that was required to sustain the preventive detention order to curtail liberty of the petitioner without trial. I am unable to ignore that in the instant case despite allegations of being repeated offender, there was no opposition by the Sponsoring Authority to the prayer for grant of immunity from prosecution either before issuance of the detention order or after issuance thereof. Non placement and non consideration of the vital documents which could have revealed this vital aspect shows absolute casualness and vitiate the impugned detention order. It is settled law that the Settlement Authority cannot withhold vital documents from the Detaining Authority. In the instant case, the Detaining Authority has miserably failed to advert to in the grounds of detention the factual position regarding recourse to ordinary punitive law of the land. She was not aware that the Sponsoring Authority was not even pressing for the prosecution of the petitioner despite he being a repeated offender. The Detaining Authority is also obliged to enquire about the status of the prosecution proceedings, if any, and, if there is none, about the stand of the Sponsoring Authority concerning initiation of prosecution. The prayer for quashing of the impugned detention order No. PSA-1212/CR-13/SPL-3(A) dated 8.4.2013 executed upon the petitioner Joit Kumar Jain is allowed and the said impugned detention order against the petitioner is quashed and set aside - petition allowed.
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