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2015 (9) TMI 1260 - HC - CustomsQuashing of detention orders - Non execution of detention order - activities of acquiring, possessing, hoarding, selling and exporting NDPS items - incident took place on 23/24.10.2011 whereas the detention order was passed on 10.9.2013 - Non availability of relevant documents - detention order of the co-accused persons have already been revoked - Held that:- Based on the averments made in the counter affidavit and the supporting documents to show the publication and citation under Section 82 of the Code of Criminal Procedure, we hold that the petitioner is an absconder and he has been intentionally evading the execution of the detention order. - As per the counter affidavit, the officers of respondent no.3 made an attempt to execute the detention order at the Delhi premises of the petitioner on 18.9.2013, however, the landlord informed the officers that the petitioner had left the premises long back. - despite publication of order dated 20.11.2013, the petitioner did not surrender; thereafter the respondents had no option but to file reports dated 8.1.2014 & 28.2.2014 under Section 8 (1) (a) of PIT NDPS Act before the Ld. CMM, New Delhi. On 14.3.2014, the Ld. CMM, New Delhi passed orders for issuing process under Section 82 of the Code of Criminal Procedure qua the petitioner. The process under Section 82 of the Code of Criminal Procedure was published in Indian Express dated 22.5.2014. The said order under Section 82 of the Code of Criminal Procedure qua the petitioner was repeated on 28.5.2014, returnable on 30.8.2014. The process under Section 82 Cr.P.C. was published in Indian Express dated 9.8.2014. The said process under Section 82 of the Code of Criminal Procedure qua the petitioner was again repeated on 2.9.2014. A careful reading of the judgments of Rajinder Arora [2006 (3) TMI 173 - SUPREME COURT OF INDIA] and Subhash Popatlal Dave (2013 (8) TMI 8 - SUPREME COURT) leads to the conclusion that a writ petition at the pre-existing stage or pre-execution of the detention order stage is maintainable, and the Courts are entitled to examine all grounds except the ground relating to sufficiency of material relied upon by the detaining authorities in passing the order of detention, which has been held to be legally the most important aspect of the matter, but cannot be gone into by the Court at the pre-execution stage when the grounds of detention have not even been served on the detenu. The counter affidavit is bereft of any explanation with regard to delay in passing the detention order dated 10.9.2013. The matter has been adjourned from time to time, but no additional affidavit has been filed nor any record has been produced to explain the delay in passing the detention order - entertaining a writ petition against a preventive detention order at a pre-execution stage should be an exception and not the general rule. In this case also the petitioner has successfully evaded the service of the detention order. The Apex Court of India in the case of Deepak Bajaj (2008 (11) TMI 655 - SUPREME COURT) has held that the celebrated writ of habeas corpus has been described as “a great constitutional privilege of the citizen” or “the first security of civil liberty”; and has also held that it is a remedy to safeguard the liberty of the citizen which is a precious right and is not to be transgressed by anyone. In this case the liberty of the petitioner cannot be curtailed by sending him to jail when the detention order of co-accused persons, who are identically placed as the petitioner, stands revoked on the recommendation of the Advisory Board. - Revocation allowed.
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