TMI Blog1994 (8) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary, it is the appellant who has delayed the execution by first moving the Bombay High Court and then this Court. That apart, the respondents have asserted that though this Court had not passed any interim order against execution of the order, it could not be served as the appellant was absconding - - - - - Dated:- 26-8-1994 - M.K. MUKHERJEE P. B. SAWANT, JJ. JUDGMENT Special leave granted. 2. This appeal is directed against the order dated 1-10-1990 passed by the Bombay High Court in Writ Petition (Crl.) No. 1083 of 1990. 3. On 23-8-1990, the Secretary (Preventive Detention) to the Government of Maharashtra, Respondent 1 herein, made an order under Section 3(1) of the Conservation of Foreign Exchange and Prevention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he answered the question in the negative but when the Officers touched his person and felt some hard substance below his waist belt he admitted having concealed gold bars tied around his waist. He was then taken down to the Customs Baggage Examination Hall and from there to the SDO s room in the Hall. There, on search, three cotton belts tied around his body were recovered. Each of the three belts was found to contain 60 gold bars, each weighing 10 totals, and bearing foreign markings. 5. The grounds of detention then detail the statement the appellant made to the Customs Officers on that day wherefrom it appears that he not only admitted that he brought the seized 180 gold bars from Dubai but earlier also on 15-5-1990 he had illegally im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations of assault made by the appellant. 7. According to the detaining authority, from all the facts stated in the grounds of detention, it was evident that the appellant smuggled massive quantity of gold to India for the second time and he was likely to continue to do so for which it was necessary to detain him. 8. The question as to whether a detenu or anyone on his behalf is entitled to challenge an order of detention without the detenu submitting or surrendering to it and, if so, what will be the nature, scope and extent of such challenge came up for consideration before a three-Judge Bench of this Court, of which one of us (Sawant J.) was a member, in Addl. Secy., Govt. of India v. Alka Subhash Gadia1. The Court, after striki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thmalani first contended that the five contingencies referred to in the above-quoted passage were not exhaustive but illustrative as there might well be other contingencies in which pre-execution challenge to the order of detention would be permitted. In elaborating his contention Mr Jethmalani submitted that in the case in hand there were sufficient materials to prove that the Customs Officers concocted a false case of smuggling against the appellant after beating him, keeping him in illegal custody for three days and coercing him to make a confessional statement. In support of this submission, Mr Jethmalani first drew our attention to the report of the doctor of the Jail Hospital submitted on 2-6-1990 to the Chief Metropolitan 1 1992 Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the same view as will be evident from the following further observations made in that case: (SCC p. 522, para 32) in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds state above." (emphasis supplied) 11. The above principles laid down in Alka Subhash Gadia1 have been quoted with approval by another three-Judge Bench in N.K. Bapna v. Union of India2. Bound as we are by the above judgments, we must hold that the other contingencies, if any, must be of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. In our considered view, even if it is held that the above explanation offered by the respondents for delayed production is not a satisfactory one and that the Customs Officers have failed to comply with constitutional and statutory requirements, the order of detention which has been made by the detaining authority on the basis of its satisfaction that the petitioner was smuggling gold, would not be bad on that score. The appellant, however, would be certainly entitled to seek appropriate relief by way of compensation or otherwise in case he succeeds in proving that he was wrongfully and illegally detained. For the foregoing discussion, we are unable to hold that the order of detention is made for a purpose extraneous to the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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