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2017 (11) TMI 302 - HC - Indian LawsChallenges a detention order issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“COFEPOSA”) - Held that:- The petitioner is a COFEPOSA detenu. He was throughout advised by the competent legal brains. He had the advantage of best legal assistance. He was briefing counsel and the senior counsel throughout. He could have pressed, at least in the second Writ Petition, all these grounds which are now pleaded. We have referred to the earlier pleadings and heavily relied upon by Mr. Yagnik. They are to be found in the memo of the second Criminal Writ Petition. In the representations and Applications seeking revocation of the detention order. Those were rejected and by orders dated 8th January 2017 and 4th February 2017. The Petitioner challenged these orders in the Second Criminal Writ Petition. The Petitioner specifically urged in that petition that more than eight months have elapsed after the Hon'ble Supreme Court dismissed his SLP by order dated 22nd April 2016. However, the detention order is not acted upon. Thus, the delay is not of 6 and 1/2 years but 810 months after the order of the Hon'ble Supreme Court. In grounds (b) and (e) at pages 18, 19 of the memo in the second Criminal Writ Petition the point or ground of delay is squarely taken. If that was withdrawn with the liberty to raise the contentions based on Subhash Popatlal Dave, we do not see how the above grounds were not available for being raised on 20th April, 2017. By then, the entire law had been settled. We have only referred to the settled legal principles and not departed or deviated from the same. Once this very plea which was available was indeed raised, so also the ground was elaborated, then, not pressing it does not mean that there is any fresh event or subsequent development which adversely affects the life and liberty of the petitioner. Even otherwise, throughout what has been pointed out and from the record as to how the petitioner was not available in these 10 to 12 months. The petitioner's wife and son had made statements which were recorded and which we do not find in any way explained, far from retracted, that last one or one and half years and at least from 22nd April, 2016 onwards, the petitioner was not available at his residential address. Thus, there is no enormous and unexplained delay in execution and service of the order of detention dated 11th February 2011. Its operation, execution and enforcement was stayed by this Court from 3rd May 2011 to 28th October 2013 and for a further period of three weeks thereafter. Then, the Petitioner approached the Hon'ble Supreme Court which stayed the detention order further till 22nd April 2016. It is only after that date the order became executable. However, even the delay in execution after 22nd April 2016 till April 2017 was challenged in the Second Criminal Writ Petition by the Petitioner – Detenue but he withdrew it with liberty to raise the very same grounds again. Thus, this liberty is of no avail. In that garb, the same ground which was expressly taken but not pressed cannot be raised again.The Petition is therefore dismissed.
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