TMI Blog2004 (5) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... AL NO. 86 OF 1999 - - - Dated:- 5-5-2004 - DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ. Anup G. Choudhary, C.V. Subba Rao, B.K. Prasad and V.K. Verma for the Appellant. Mahabir Singh, Rakesh Dahiya, Nikhil Jain and M.A. Chinnasamy for the Respondent. JUDGMENT Arijit Pasayat, J. - The Union of India, Joint Secretary COFEPOSA, Commission of Customs-II, Madras and State of Tamil Nadu question the legality of the judgment rendered by a learned Single Judge of the Punjab and Haryana High Court quashing order of detention dated 19-12-1995 passed in respect of one Ratan Bagaria under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act ). Before the order of detention could be served on Shri Ratan Bagaria, his wife Smt. Vidya Bagaria, the respondent herein, filed Habeas Corpus writ petition under Article 226 of the Constitution of India, 1950 (in short the Constitution ) praying for issuance of writ or any other order quashing the order of detention passed by appellant No. 2 herein who was the respondent No. 2 in the writ petition. Several grounds touching legality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Alka Subhash Gadia 1992 Supp. (1) SCC 496. In para 12 of the said judgment, it was observed by this Court as under : "12. This is not to say that the jurisdiction of the High Court and the Supreme Court under articles 226 and 32 respectively has no role to play once the detention - punitive or preventive - is shown to have been made under the law so made for the purpose. This is to point out the limitations, which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decision have evolved them over a period of years taking into consideration the nature of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought, etc. To illustrate these limitations, ( i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject-matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material, which the authority properly could not, or by omitting to consider matters, which it sought to have, the Court interferes with the resultant order; ( viii ) in proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded." 6. In Sayed Taher Bawamiya v. Joint Secretary to the Government of India [2000] 8 SCC 630, it was observed by this Court as follows : "6. This Court in Alka Subhash Gadia s case ( supra ) was also concerned with a matter where the detention order had not been served but the High Court had entertained the petition under article 226 of the Constitution. This Court held that equitable jurisdiction under article 226 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at pre-execution stage. It was observed as under : "In our view, a very unusual order seems to have been passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under section 3(1) of the COFEPOSA Act was passed by the authorities on 13-9-1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23-10-1996 and obtained an interim stay of the proposed order, which had remained un-served. The learned Single Judge after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10-1-1997 which was extended from time to time. The writ appeal has not been still disposed of. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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