TMI Blog2009 (7) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... in the passage of over eight years since the passing of the detention order, there is no evidence on record of any prejudicial activity on the part of the proposed detenu Mr Mukesh Vora, in itself is sufficient for us to conclude that the detention order has lost its relevance today. The detention order be cancelled - petition allowed. - WP(CRL) 37/2009 - - - Dated:- 3-7-2009 - MR BADAR DURREZ AHMED MR AJIT BHARIHOKE, JJ. For the Appellant : Mr C. Hari Shankar with Mr C. M. Jaykumar and Mr Jagdish N. For the Respondents: Mr Satish Aggarwal with Mr Sirish Aggarwal BADAR DURREZ AHMED, J 1. This writ petition has been filed by the wife of Mr Mukesh Nagindas Vora, who is sought to be detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA‟). The said detention order which is sought to be challenged was passed by the respondent No. 2 [Joint Secretary, Government of India, Ministry of Finance, Department of Revenue (COFEPOSA) Section] New Delhi. Although the detention order and consequently the grounds of detention are not on record because the same hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consequently, the Central Government revoked the detention order even in respect of Mr Kiran Nagindas Vora by an order dated 23.05.2001. 3. In this factual context, the learned counsel for the petitioner drew our attention to the grounds of detention of the co-detenu Mr Iqbal Mehra. He drew our attention to paragraph 2 thereof wherein the name of the petitioner‟s husband (Mukesh Vora) is mentioned. At the end of the same paragraph, there is a reference to the group comprising of Mr Iqbal Mehra, Mr Kiran Vora, Mr Manish Vora, Mr Mukesh Vora and Mr Brij Mehra. The common allegation is that the said group received payments against fake procurement bills raised by the front companies of the said group on the exporters. The learned counsel for the petitioner then submitted that the co-detenu Mr Kiran Vora made, in all, four statements alleged to be voluntary statements under Section 108 of the Customs Act, 1962. The first statement was allegedly made on 30.08.2000 which is referred to in paragraph 7 of the said grounds of detention in respect of the co-detenu Iqbal Mehra. At the end of paragraph 7 itself, it is noted that there were no business dealings between Mr Kiran Vora a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance on the decision of the Supreme Court in the case of Alpesh Navinchandra Shah v. State of Maharashtra Others: 2007 (2) SCC 777. It was also contended by the learned counsel that this is a case of non-communication / non- consideration of a retraction made by a co-detenu to the detaining authority. When material documents are not supplied to the detaining authority or are not considered by the detaining authority, the detention order, even at the pre-execution stage, is liable to be set aside. For this proposition, the learned counsel placed reliance on the Supreme Court decision in the case of Deepak Bajaj v. State of Maharashtra Anr: 2008 (14) SCALE 62. Apart from this, the learned counsel submitted that the alleged incident which has formed the basis of the detention order was of 2000 and the detention order itself is of 2001. Placing reliance on the Supreme Court decision in the case of Maqsood Yusuf Merchant v. Union of India Anr: Crl. A. 1337/2008 decided on 22.08.2008, he submitted that the live link between the detention order and its execution having been snapped, the detention order deserves to be revoked. He submitted that the decision in Maqsood Yusuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .: 2004 (6) SCC 254 he submitted that this Court would not have territorial jurisdiction to entertain the present writ petition. The learned counsel also referred to the following decision of this Court:- Shri Satya Sai College of Education v. National Council for Teacher Education: WP(C) 6216/2008, a decision of a learned Single Judge of this Court delivered on 07.01.2009. 8. With regard to the merits, the learned counsel for the respondents submitted that the petitioner has challenged the order of detention in respect of her husband on essentially two counts. The first being that the detention order was illegal since its inception inasmuch as the material document being the retraction of Mr Kiran Vora of 28.02.2001 was not placed before the detaining authority and that for the same reason the detention orders in respect of the co-detenus Iqbal Mehra and Kiran Vora have been revoked. The second plea raised by the petitioner was that the detention order, which may have been legal at the time it was issued, has now become stale with efflux of time and, therefore, cannot be given effect to any further. 9. With regard to the first plea raised by the petitioner, the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot exhaustive but only illustrative, a three judge Bench of the Supreme Court in the case of Sayed Taher Bawamiya (supra) held that those exceptions were exhaustive. Consequently, the learned counsel for the respondents urged that the decision in Sayed Taher Bawamiya (supra) would prevail over the ratio laid down in Deepak Bajaj (supra). He submitted that this aspect of the matter was neither raised nor considered in the decision of this Court in Gopa Manish Vora (supra). Consequently, he submitted that a great delay in the execution of the detention order was not a ground for its quashing. 11. The learned counsel for the respondents further submitted that the decision in Gopa Manish Vora (supra) was based on the decision of the Supreme Court in the case of Maqsood Yusuf Merchant (supra). He submitted that the facts of Maqsood Yusuf Merchant (supra) were different from those of the present case. While in Maqsood Yusuf Merchant (supra) the Union of India had categorically accepted the plea that the petitioner had not indulged in prejudicial activities after the passing of the detention order, this is not so in the present case. 12. It was also contended on behalf of the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs. (emphasis supplied) The learned counsel, therefore, contended that because of the introduction of sub-Article (1-A) by virtue of the 15th Amendment to the Constitution in 1963 which was subsequently renumbered as sub- Article (2) by virtue of the 42nd Amendment, the territorial jurisdiction of the High Courts were not curtailed but were amplified. The introduction of concept of situs of the cause of action provided the High Courts with an extension of the territorial jurisdiction insofar as writ petitions were concerned. Prior to the amendment, the High Courts could only issue writs to the Government, authority or person located within its territory. After the said amendment, by virtue of Article 226(2), as it now stands, the High Courts can issue writs to governments, authorities or persons even outside its territory provided part of the cause of action had arisen within their respective territories. 14. The learned counsel also drew our attention to the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 226. (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government, within whose territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose. (1) The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32 . The said provision was considered in the case of Election Commission, India v. Saka Venkata Rao: 1953 SCR 1144, Hari Vishnu Kamath v. Syed Ahmed Ishaque Others: 1955 (1) SCR 1104 and Khajoor Singh (supra). The position of law as it stood after the decision of the Supreme Court in Khajoor Singh (supra) was that the place where the cause of action arose had no relevance for the purposes of determining the territorial jurisdiction of the High Court. What was of relevance was where the person, authority or government to whom the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the area in respect of writs issued by different High Courts. A Division Bench of this court in the case of Smt. Rama Devi (supra) had gone into this issue as to what was the effect of introduction of Article 226(2) in the Constitution of India. In paragraph 26 of the said decision, the Division Bench remarked : - ..... The amendment was only a liberalizing provision; it surely did not take away jurisdiction which was already there; it was only a case of conferring additional jurisdiction i.e. to those States, which did not have jurisdiction previously, provided a part of the cause of action at least arose in the concerned States. In this sense it would not even be accurate to say that the amendment is invoked for the purpose of investing any fresh jurisdiction in this Court: what has been got rid off by the amendment is the disability in the matter of issuing writs, directions etc. outside the territorial limits of the concerned High Court. As it has been worded this amendment only makes it even clearer than before that this High Court could issue a writ or other direction under Article 226 of the Constitution to run outside the territorial limits of the Union Territory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but all the High Courts where cause of action arises, will have jurisdiction. The last conclusion is clarified in Mosaraf Hossain Khan v. Bhageeratha Engg. Ltd: (2206) 3 SCC 658 wherein, the Supreme Court, referring to their decision in Kusum Ingots (supra), observed as under:- in that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction. (emphasis supplied) It is obvious that by the use of the words only‟ and sole‟, the Supreme Court clarified that the High Court within whose jurisdiction a legislation is passed would not have jurisdiction to entertain a writ petition merely because or only because such a legislation was passed unless and until the person seeking the writ also has a cause of action for approaching that High Court. In case the cause of action arises in some other territory but in respect of a legislation passed within the jurisdiction of a particular High Court, then that High Court would not have the sole territorial jurisdiction but all the High Court whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the order of detention had been passed, the proposed detenu had not indulged in any prejudicial activity. But, in Gopa Manish Vora (supra) as also in the present case, there is no such concession on this point. However, as in Gopa Manish Vora (supra), in this case also, there is no evidence placed before us to indicate that the proposed detenu (Mr Mukesh Vora) had indulged in any prejudicial activities after the passing of the detention order on 13.03.2001. In fact, when this matter came up for hearing on 23.04.2009, the learned counsel for the respondent Nos. 1 and 2 sought some time to file an additional affidavit indicating as to whether the petitioner had been involved in any prejudicial activities between the date of the passing of the detention order and now. This Court acceded to that request and permitted the respondents to file such an affidavit within two weeks. However, no such affidavit has been filed by the respondent Nos. 1 and 2. The case was finally heard on 20.05.2009, 22.05.2009 and 25.05.2009. The respondents had ample opportunity to file such an affidavit but they chose not to do so. The only plea taken by the learned counsel for the respondents was that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver seven years. We are not saying that the detention order, when passed, was or was not valid. What we are saying is that the requirement of executing the detention order today has lost its relevance and as observed by the Supreme Court in Maqsood Yusuf Merchant (supra), the continuation of the detention order in these circumstances would be an exercise in futility and ought not to be given effect to any further. Consequently, we are of the view that the detention order in the present case has lost its relevance through the combined effect of passage of time and lack of any evidence of any prejudicial activity on the part of the proposed detenu (Mukesh Vora). 24. Intertwined with the issue which we have discussed in the immediately preceding paragraphs, is the question of maintainability of a writ petition challenging a detention order at the pre-execution stage. That issue also came up for consideration in Gopa Manish Vora (supra). One of the points of controversy in that decision was whether the circumstances mentioned in Alka Subhash Gadia (supra) were exhaustive or merely illustrative. What was observed in Alka Subhash Gadia (supra) was, inter alia, as under:- Thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lka Subhash Gadia‟s case (supra) this Court only wanted to lay down the principle that entertaining a petition against a preventive detention order at a pre-execution stage should be an exception and not the general rule. We entirely agree with that proposition. However, it would be an altogether different thing to say that the five grounds for entertaining such a petition at a pre-execution stage mentioned in Smt. Alka Subhash Gadia‟s case (supra) are exhaustive. In our opinion they are illustrative and not exhaustive. 25. In Gopa Manish Vora (supra), after considering the several decisions of the Supreme Court, including:- (1) Additional Secretary to the Government of India Others v. Smt. Alka Subhash Gadia and Another : 1992 Supp (1) SCC 496; (2) N. K. Bapna v. Union of India and Ors: (1992) 3 SCC 512; (3) Subhash Muljimal Gandhi v. L. Himingliana and Anr: (1994) 6 SCC 14; (4) Administration of the National Capital of Delhi, Raj Niwas v. Prem Singh: 1995 Supp (4) SCC 252; (5) Union of India Ors v. Parasmal Rampuria: (1998) 8 SCC 402; (6) Union of India v. Amrit Lal Manchanda Anr: (2004) 3 SCC 75; (7) Union of India Others v. Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on documents . First of all, we do not understand as to how such a remark could be made. There is no question of having placed or not placed any reliance on the documents because the judgment was then yet to be delivered. All the material which was placed by the counsel for the parties before the Court has been seen and examined, where is the question of relying or not relying upon documents? It is unfortunate that such submissions are made in writing. In any event, we cannot penalize the respondents for the folly of their counsel and, therefore, we have particularly taken note of the fact that appended to the grounds of detention in the case of the co- detenu Iqbal Mehra is an index of documents. In that index at serial No. 48, the retraction application of Mr Kiran Vora dated 26.02.2001 is mentioned. From this, the learned counsel for the respondents is possibly trying to build up a case that the retraction of Kiran Vora had been placed before the detaining authority. At this juncture, we may state that the case of the petitioner is not merely of non-placement of the relevant materials, but non-consideration of the retraction statement of 26.02.2001 / 28.02.2001. To substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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