TMI Blog2010 (3) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... /speaking order so far, as the requirement of serving copy of grounds of detention arises after the detenu is taken into custody. The petitioner has, therefore, filed a copy of the order dated 23.09.2009 only, which is issued by Joint Secretary, Government of India stating that the detenu be detained and kept in custody in the Central Jail, Tihar, New Delhi. However, some indications of the circumstances under which this order came to be passed, can be gathered from the counter affidavit filed by the respondents to this writ petition to which we shall advert to at the appropriate stage. Before that, we deem it proper to take note of the averments made in the writ petition, which formed the basis of challenging the detention order. 2. One Ambika Electronics, engaged in the business of mobile phones, belongs to Anil Kumar Aggarwal, who is detenu's brother. On 17.02.2009, premises of the said firm at 136, M.C.D. Market, Karol Bagh, New Delhi and other premises, viz., residence of Anil Kumar Aggarwal, that of detenu at Pitam Pura, New Delhi, shop premises of M/s. Bhagwati Electronics situated at 135, Municipal Market, Karol Bagh, New Delhi belonging to Kapil Jindal were raided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectorate, Indian Currency, this letter was recovered. Kapil Jindal was also taken to the office around 1.00 a.m. in the intervening night of 17.02.2009 and 18.02.2009 and his statement was recorded. However, he also retracted his statement on 19.02.2009 alleging that it was involuntarily statement and was obtained under threat and coercion. He also asked for return of his currency and was given the same reply, viz., the matter regarding seized currency would be decided after the completion of investigation. 4. Upon coming to know of the proposal to detain the detenu, a number of representations were made categorically highlighting that he is not engaged in any transaction which may attract contravention under the provisions of FEMA and the Indian currency/amount seized is duly accounted for in the books of accounts. The detenu also categorically averred that he is merely engaged in the business of sale and purchase of mobile phones in India and is not engaged in import of any products. The competent authority still went ahead and passed the impugned detention order on 23.09.2009. The petitioner came to know of this order when certain officers came to the residence of the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2002) 5 SCC 285. It is also denied that relevant material was not placed before the detaining authorities or that there was no material to pass the order of detention. The respondents have also stated that there is no delay in passing the order of detention, which would vitiate the said order. In support of the above submissions, the respondents also produced the original records for our perusal, which have been minutely scrutinized by us. 7. Since much of the time was consumed by the counsel for both the sides on the scope of challenge to the detention orders at pre- detention stage and very detailed submissions were made in this behalf relying upon the various judgments of the Supreme Court as well as this Court, we deem it proper to address this issue in the first instance. 8. Re: Scope of Challenge at Pre-detention Stage: The law revisited It is not in dispute that the Supreme Court in categorical terms delineated the parameters on which order of detention at pre-execution stage can be questioned in the case of Alka Subhash Gadia and Another (supra). In that case an order of detention was passed against the husband of the respondent No.1 under Section 3(1) of COFEPOSA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any law, including detention law. Therefore, the detention order could be challenged at any stage. It was argued that the artificial distinction between pre-decisional stage and post-decisional challenge is inconsistent with and alien to the wide powers conferred under Articles 226 and 32 of the Constitution. The Court did not accept these submissions in the broader sense in which they were argued. The perusal of the judgment would bring the following principles laid down therein: 1) Despite the constitutional protection of Articles 14, 19 and 21, it is not mandatory that a detenu must be informed of the grounds of his detention prior to being detained under an order of detention (para 29). The Court rejected the argument that it would deprive the detenu of a right of judicial review of the order of detention (para 30). 2) The detenu does not even have the right to the order of detention or the grounds thereof before the order of detention is executed even to verify whether it can be challenged at its pre-execution stage on the limited grounds available (para 32). 3) Though the courts have the power to interfere with the detention orders at the pre-execution stage, but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary, extraordinary, and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have exercised their powers at the pre- execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do to not will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles. 14. There is no quarrel about the aforesaid dicta laid down by the Supreme Court in Alka Subhash Gadia and Others (supra). However, the parties differ in their perceptions on two aspects, viz.: a) Whether five grounds mentioned in Alka Subhash Gadia and Others (supra) are exhaustive and not illustrative. b) What would be the impact and scope of these grounds, particularly, ground 3 and 4. 15. Insofar as dispute about the exhaustive nature of the five grounds stated in Alka Subhash Gadia and Others (supra), learned counsel for the petitioner relies upon the judgment of the Supreme Court in Deepak Bajaj Vs. State of Maharashtra [AIR 2009 SC 628] wherein following observations were made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and abrasions on his person and he complained of pain on his body. Mr. Jethmalani then drew our attention to the fact that though the appellant was apprehended in the early hours of May 22, 1990 and was thus constitutionally and statutorily required to be produced before the nearest Magistrate latest by May 23, 1990 he was kept unlawfully detained till May 25, 1990 when the Customs authorities produced him in Court. Mr. Jethmalani submitted that as these facts unmistakably demonstrated the misuse and abuse of extraordinary constitutional powers by the State machinery this Court would not allow the liberty of a victim of exercise of such powers to be taken away even if the parameters mentioned in Alka Subhash Gadia did not apply in this case. Even otherwise, Mr. Jethmalani urged, the facts herein clearly made out a case for interference by this Court under category (iii) mentioned in the above quoted passage in Alka Subhash Gadial, namely that the impugned order was passed for a wrong purpose. 10. Having given our anxious consideration to the above contention of Mr. Jethmalani, we are unable to accept the same. In the passage, earlier quoted from Alka Subhash Gadia, this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevents their abuse and the perversion of the law in question. 6. Unless and until any one of the grounds has been established, the court is powerless to interfere. In other words no interference at the pre detention stage is permitted on any other grounds; otherwise the very object to preventive detention is thwarted. In this connection we also note a stay of detention also had been granted. On a proper occasion we may have to consider the correctness of such orders granting stay. This aspect of the matter need not detain us. 18. Again in the case of Sayed Taher Bawamiya Vs. Jt. Secy to the Govt.of India [(2000) 8 SCC 630], the Supreme Court clarified that the exceptions carved out by Alka Gadia s case were only exhaustive and not illustrative in the following manner: 7. As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-executio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd does hear such petition expeditiously to give the necessary relief to the detenu. 21. In these circumstances, bound as we are on the principles of stare decisis to follow the dicta laid down by the larger Bench, we hold that the detention order at pre-execution stage can be challenged only on the five grounds mentioned in Alka Gadia (supra) or other contingencies of the same species. 22. It would be fruitful to refer to a Division Bench judgment of this Court in WP (Crl.) No.2444/2006 entitled Smt. Gopa Manish Vora v. Union of India and Anr. decided on 10.2.2009. In that case, the Court was confronted with the same dilemma, namely, two lines of decision: one indicating that an order of detention can be interfered with at the pre-execution stage only if any of the five circumstances mentioned in Alka Gadia (supra) exist and other line of decisions (as noted by us as well) holding that circumstances mentioned in Alka Gadia (supra) were not exhaustive but illustrative in nature. The Division Bench was of the opinion that the decision in Deepak Bajaj (supra) stating that five situations mentioned in Alka Gadia (supra) were illustrative and not exhaustive laid down the law corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ], the Supreme Court set aside the detention order at pre-execution stage when it found that although the raid was conducted on 26.05.2004 no material had been brought on record far even launching the prosecution against the detenu and even despite that, the detention order had been issued after a long time. The delay caused in issuing the detention order had not been explained and status report called for from the Custom Department had also not been taken into consideration by the Competent Authority. On this basis, the court opined that circumstances mentioned at serial Nos. 3 4 of Alka Gadia (supra) stood attracted. 27. Because of the aforesaid reasons, we intend to go into the arguments advanced by the learned counsel for the petitioner challenging the detention order. 28. Re: Delay Submission of learned counsel for the petitioner, on this aspect was that a bare clause of record still reveals that there has been abnormal delay in passing the impugned detention order. Highlighting the fact that the raid and search of the premises of the detenu was conducted way back on 17.02.2009, learned counsel for the petitioner pointed out that the detention order was ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m his mobile. Based on the above references the Sponsoring Authority provided required documents to COFEPOSA Division vide their letters dated 03.08.09, 02.09.09 and 15.09.09 and final modified relied upon documents on 22.09.09. It was after the above processes, meetings and calling for further material and information, which was placed before the detaining authority that the order of detention dated 23.09.09 came to be passed. Hence it is submitted that the 'delay' between the commission of the offence/search of the premises of the Petitioner on 17.02.09 and the date of the order of detention in the present case is justified and explained and hence is no ground for challenge to the order of detention. Referring to the averments to the above paras of the counter affidavit, learned counsel argued that as per the respondent‟s own showing, the proposal was sent by the sponsoring authority i.e. Enforcement Directorate, New Delhi and approved by the Central Screening Committee on 03.07.2009. He further pointed out that various meetings allegedly took place with long gaps and it was not even stated that as to what kind of information was required from the sponsoring authority whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... processed the case vide note dated 13.07.2009. It was placed before the Director (CP) on the same day who after examining the same thought it proper to call concerned officers in order to clarify/rectify documents sent by them, who attended the meeting on 14.07.2009. On the basis of the discussion which took place, these officials were asked to forward relevant material within 10 days. On 24.07.2009 ED officials again attended the office of Director (CP) when there was in-depth discussion regarding this case. Since Director (CP) had certain queries based on the discussion which were to be replied by the ED officials, the ED officials were asked to provide the information sought by the Director (CP) within one week. He apprised JS (CP) on 27.07.2009 about the information which was required by him. The ED officials visited the office of Director (CP) again on 30.07.2009 and had discussion with him on various points. Further time was sought by the ED officials to provide required information. Similar meetings took place on subsequent dates as mentioned in the counter affidavit. Record further reveals that on 12.08.2009 Director (CP) had made up his mind to issue the detention order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the vice of non-application of mind. In this context, he referred the following cases: (i) Asha Devi Vs. K. Shivraj [AIR 1979 SC 447]; (ii) State of U.P. Vs. Kamal Kishore Saini [AIR 1988 SC 208] and (iii) Ayya alias Ayub Vs. State of U.P. [AIR 1989 SC 364]. 34. As far as letters of retraction by detenu and Kapil Jindal are concerned, they are considered by the detaining authority. Record demonstrates it clearly. Obviously, since the detention order has not been executed so far and the petitioner is not provided with the grounds of detention as well as relied upon documents, this argument is based on conjectures. 35. Insofar as representation dated 25.06.2009 is concerned, the same was addressed to Member (Customs) and in the counter affidavit, it is stated that it had neither been received by the sponsoring authority nor detaining authority. It is also pleaded that representation sent to Member (Customs), who had no locus in the matter. Learned counsel for the petitioner, on the other hand, contended, on the basis of case law, that it was the responsibility of the sponsoring authority/detaining authority to find out whether any representation was made out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not involved in any contravention and violation under the FEMA. This plea is not taken up for the first time in representation dated 25.06.2009. We find that this very aspect is highlighted by the detenu even in his application dated 18.05.2009 whereby he has requested for release of Indian currency seized from him. This representation as well as reply thereto was placed before the detaining authority. Thereafter this aspect is taken note of and not ignored as contended by the learned Counsel for the petitioner. 39. Submission of the petitioner that the detenu had also taken the plea that he was trading in mobile phones in India only and was not involved in any export or import, on the presumption that the detention order is passed on the premises that the petitioner is involved in illegal activity of export or import. However, records reveal that the detenu had in his statement on 17.02.2009 inter alia stated that he is importing mobile phones from China and further as per the record he had retracted his statement as well which would imply that he denied that he was indulged in importing mobile phones from China. Therefore, it cannot be said that the detaining authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered opinion was passed in haste without there being adequate materials. 19. Mr. Doabia, however, contended that the allegation against the detenu as regard over invoicing of the goods is the subject matter of the adjudication proceedings. That may be so but it is now well-settled that when one of the grounds of detention is found to be based on irrelevant materials not germane for passing the order of detention, the entire order of detention shall stand vitiated in law. 41. A reading of the aforesaid judgment would clearly demonstrate that the very first ground for detention passed in that case was that the goods seized, the subject matter of export, were scrapped metal and not the alloy steel as declared by the exporter, though the seized goods were sent for chemical test before CRCL without awaiting the report. Order of detention was passed on the aforesaid ground, which turned out to be erroneous after the report of CRCL was received. It was in this backdrop that the Apex Court held that the detention order was passed in haste without there being an adequate material/irrelevant materials not germane for passing the order of detention. The authority is not for the propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or augmentation of foreign exchange, the authority is empowered to make a detention order against such person and the Act does not contemplate that such activity should be an offence. 43. The attempt on the part of the learned counsel for the petitioner was to demonstrate that facts of this case with solitary act imputed upon the petitioner would not justify passing of the detention order. He submitted that whereas FERA had dealt with the violation of provision of the said Act as a criminal offence and the onus was upon the accused to prove that he was innocent, the FEMA, on the other hand, is concerned with regulation of foreign trade, investment, etc. and liberalized after amendments therein by the legislature. This act deals with penalties, which are of severe nature and, therefore, a single act would not constitute sufficient ground to pass detention order. 44. Again, at the cost of repetition, we may observe that whether these circumstances justified the passing of the detention order or not would be known from the grounds of detention and the material relied upon in support thereof. Suffice is to state that as per the detaining authority, the petitioner is indulged i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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