1994 (11) TMI 447 - HC - Customs

Summary

Issues Involved:
1. Whether a person not under detention can file an application under Section 11 of COFEPOSA seeking revocation of the detention order.
2. Whether pending disposal of the application under Section 11, the petitioner can seek a direction that the detention order not be served.
3. Whether the subsequent adjudication by the Customs authority negates the basis of the detention order, thereby falling within the exceptions outlined in Alka Subhash Gadia.

Detailed Analysis:

Issue 1: Application for Revocation under Section 11 of COFEPOSA
The court examined whether a person, not yet detained, could invoke Section 11 of COFEPOSA to seek revocation of a detention order. The petitioner argued that the phrase "at any time" in Section 11 implies that an application for revocation can be made even before the detention order is executed. This argument was supported by the fundamental right under Article 21 of the Constitution, which is applicable even at the pre-detention stage. The court acknowledged that the Bombay High Court in Manoharlal Narang vs. Union of India had previously held that a person could invoke Section 11 at the pre-detention stage and that the High Court could grant an injunction against detention until the Section 11 application was disposed of.

However, the Supreme Court in Alka Subhash Gadia did not fully endorse this view. The Supreme Court identified only five contingencies where a detention order could be challenged at the pre-detention stage, and the pendency of a Section 11 application was not one of them. Therefore, the court concluded that while a person could apply for revocation under Section 11 at the pre-detention stage, they did not have the right to avoid detention until the application was decided.

Issue 2: Injunction Against Serving Detention Order
The court further clarified that the fundamental right under Article 21 does not extend to preventing detention while a Section 11 application is pending. The Bombay High Court's view that pending a Section 11 application, a person could not be detained, was explicitly overruled by the Supreme Court in Alka Subhash Gadia. Thus, the court held that even if a Section 11 application is pending, the authorities are not barred from executing the detention order.

Issue 3: Subsequent Adjudication and its Impact on the Detention Order
The petitioner contended that the adjudicating authority under the Customs Act had found no "smuggling" in its order dated 16.3.1992, which should negate the basis of the detention order dated 31.7.1989. The petitioner argued that this situation falls within the third exception in Alka Subhash Gadia, where a detention order is passed for a wrong purpose.

The court noted that the concerned authority must consider whether the case falls within the exceptions outlined in Alka Subhash Gadia when deciding a Section 11 application. The court examined the reasons recorded by the authority and found that the authority had not considered the petitioner's contention that the adjudication order amounted to a finding of "no smuggling" and thus fell within the third exception.

Therefore, the court quashed the order dated 19.10.1993, which refused to revoke the detention order, and remitted the matter back to the authority for fresh consideration. The court emphasized that it was not expressing any view on the merits of the adjudication order but merely ensuring that the authority considers the petitioner's contention.

Conclusion:
The writ petition was partly allowed. The court held that while a person could apply for revocation under Section 11 of COFEPOSA at the pre-detention stage, this did not prevent the authorities from executing the detention order. The court also quashed the order refusing to revoke the detention and remitted the matter for fresh consideration, directing the authority to consider whether the case falls within the exceptions outlined in Alka Subhash Gadia.