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PANKAJ KUMAR SHUKLA Versus UNION OF INDIA & ORS.

2015 (9) TMI 1260 - DELHI HIGH COURT

Quashing of detention orders - Non execution of detention order - activities of acquiring, possessing, hoarding, selling and exporting NDPS items - incident took place on 23/24.10.2011 whereas the detention order was passed on 10.9.2013 - Non availability of relevant documents - detention order of the co-accused persons have already been revoked - Held that:- Based on the averments made in the counter affidavit and the supporting documents to show the publication and citation under Section 82 of .....

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ereafter the respondents had no option but to file reports dated 8.1.2014 & 28.2.2014 under Section 8 (1) (a) of PIT NDPS Act before the Ld. CMM, New Delhi. On 14.3.2014, the Ld. CMM, New Delhi passed orders for issuing process under Section 82 of the Code of Criminal Procedure qua the petitioner. The process under Section 82 of the Code of Criminal Procedure was published in Indian Express dated 22.5.2014. The said order under Section 82 of the Code of Criminal Procedure qua the petitioner was .....

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cution of the detention order stage is maintainable, and the Courts are entitled to examine all grounds except the ground relating to sufficiency of material relied upon by the detaining authorities in passing the order of detention, which has been held to be legally the most important aspect of the matter, but cannot be gone into by the Court at the pre-execution stage when the grounds of detention have not even been served on the detenu.

The counter affidavit is bereft of any explan .....

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t of India in the case of Deepak Bajaj (2008 (11) TMI 655 - SUPREME COURT) has held that the celebrated writ of habeas corpus has been described as “a great constitutional privilege of the citizen” or “the first security of civil liberty”; and has also held that it is a remedy to safeguard the liberty of the citizen which is a precious right and is not to be transgressed by anyone. In this case the liberty of the petitioner cannot be curtailed by sending him to jail when the detention order of c .....

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.SISTANI, J (ORAL) 1. Rule DB. 2. With the consent of counsel for the parties present writ petition is set down for final hearing and disposal. 3. Present petition has been filed by petitioner under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking a writ of mandamus or any other appropriate writ, order or direction thereby directing the respondents to place on record the detention order dated 10.9.2013, passed by respondent no.2 un .....

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rit petition has been filed at the pre-execution stage. 5. As per the writ petition, similar detention orders dated 10.9.2013, issued against the co-accused persons, namely, Nilesh Shukla and Virender Singh, stand revoked on the recommendation of the Advisory Board. A copy of the detention order dated 10.9.2013 in respect of co-accused, Nilesh Shukla, has been filed along with the writ petition. Copies of the grounds of detention passed in support of the detention order have also been filed. The .....

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at his home and was attending all his daily routine activities. 7. The second ground raised before us is that the incident took place on 23/24.10.2011 whereas the detention order was passed on 10.9.2013 i.e. after a long and undue delay thus the nexus between the purpose of detention and the allegations made in the grounds of detention, stand snapped. 8. It is the case of the petitioner that in view of the delay, the detention order has become stale and similar detention orders passed under sim .....

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. No other ground has been pressed before us. 11. Mr.Ahluwalia, learned counsel for respondents no.1 and 2, has raised a preliminary objection with regard to the maintainability of the writ petition while relying on the decision of the Full Bench of the Supreme Court of India in the case of Subhash Popatlal Dave v. Union of India and Another, reported at (2014) 1 SCC 280. Counsel further submits that in the case of Subhash Popatlal Dave (supra) it has been held that a petitioner who is an abscon .....

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r: 2a. The Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue had issued detention order No. U-11011/04/2012-PITNDPS dated 10.9.2013 under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the PIT NDPS Act for brevity and convenience) against the petitioner. The respondent No. 3 was aware of the address of the petitioner in Delhi, i.e. E- 135, Room No.2, Street No. 3, Vinod N .....

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ck. On 30.10.2013, 13.7.2014, 15.10.2014 and 29.12.2014, the officers of Directorate of Revenue Intelligence, Lucknow Zonal Unit visited at the premises of the petitioner situated at 73, Village Bashara, P.O. Sotipur, P.S. Varsathi, Distt. Jaunpur, U.P., but the petitioner was not found available at the said address. b. An order dated 20.11.2013 issued under F.No. U- 11011/04/2012-PITNDPS, in this regard, was published in the Gazette of India (Extraordinary), Part-II, Section 3-Sub section (ii) .....

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) of PIT NDPS Act before the Ld. CMM, New Delhi. A copy of the reports dated 8.1.2014 & 28.2.2014 is Annexure-B. On 14.3.2014, the Ld. CMM, New Delhi passed orders for issuing process under Section 82 Cr.P.C. qua the petitioner herein. The process under Section 82 Cr.P.C. was published in Indian Express dated 22.5.2014. A copy of the publication of the citation under Section 82 Cr.P.C, returnable on 28.5.2014 is Annexure-C. The said order under Section 82 Cr.P.C. qua the petitioner herein wa .....

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under Section 82 Cr.P.C. had been pasted at the conspicuous part of the said premises. The report in this regard had been submitted to the Ld. CMM, New Delhi. The process dated 2.9.2014 with report is Annexure-E. The order of issuance of fresh process under Section 82 Cr.P.C. was again repeated on 31.3.2015, returnable on 1.6.2015. A copy of order dated 31.3.2015 is Annexure-F. c. It is respectfully submitted that the petitioner is not available at his addresses which he has also declared in hi .....

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aware of his address nor any of his contract number. He further informed that he was not in contact with him for the last two years. d. The petitioner is also one of the accused in the prosecution filed by Directorate of Revenue Intelligence before the special court of NDPS, Patiala House Court, New Delhi for offences punishable under Sections 22, 23, 25 and 29 of the NDPS Act, 1985. e. On 13.5.2014 when the matter was taken up by the Ld. Trial Court, the petitioner failed to appear and the cou .....

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warrants and the application was allowed. A copy of order dated 15.7.2014 is Annexure-H. 14. While relying on the judgment rendered by the Supreme Court of India in the case of Additional Secretary to the Government of India and Others v. Smt.Alka Subhash Gadia and Another, reported at 1992 Supp (1) SCC 496, more particularly para 13, learned counsel for respondents no.1 and 2 submits that jurisdiction under Articles 226 and 32 of the Constitution in pre-execution stage is to be used sparingly a .....

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-execution stage. 17. It is no longer res integra that pre-execution challenge in a writ petition is maintainable, however, the power is to be exercised sparingly. 18. In the case of Additional Secretary to the Government of India and Others (supra), the Full Bench of the Supreme Court has held as under: 30. As regards his last contention, viz, that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to d .....

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d this court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed r .....

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scretionary 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 court should disregard all t .....

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e in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the Courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz, where t .....

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abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. 31. Lastly, it is always open for the detenu or anyone on his behalf to challenge the detention order by way of habeas corpus petition on any of the grounds available to him. It is not, therefore, correct to say that no judicial review of the detention order is available. In the view we are taking which applies also to the cases under other laws, the stage .....

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tition as expeditiously as possible. 19. In the case of Deepak Bajaj v. State of Maharashtra and Another, reported at (2010) 4 SCC 122 the Supreme Court has held that the five grounds mentioned in the case of Additional Secretary to the Government of India and Others (supra) on which the Court can set aside the detention order at the pre-existing stage are only illustrative and non-exhaustive. 20. The Supreme Court in the case of Deepak Bajaj v. State of Maharashtra and Another, reported at (201 .....

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e must yet go to jail though he will be released later is a meaningless and futile exercise. 10. It must be remembered that every person has a fundamental right of liberty vide Article 21 of the Constitution. Article 21, which gives the right of life and liberty, is the most fundamental of all the Fundamental Rights in the Constitution. Though, no doubt, restrictions can be placed on these rights in the interest of public order, security of the State, etc. but they are not to be lightly transgre .....

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hat the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be likely transgressed. Hence in our opinion Smt. Alka Subhash Gadia's case (supra) cannot be construed to mean that the five gr .....

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courts have to be ever vigilant to see that this power is not abused or misused." 17 In Francis Coralie Mullin vs. W.C. Khambra and others AIR 1980 SC 849 this Court observed (vide para 5) : "5.... No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired" 19. Learned counsel for the respondent submitted that a writ of habeas corpus lies only when there is illegal detention, and in the present case since the petitioner has not yet been arrested, .....

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ri, etc. and they can also issue orders and directions apart from issuing writs. 20. The words in the nature of' imply that the powers of this Court or the High Court are not subject to the traditional restrictions on the powers of the British Courts to issue writs. Thus the powers of this Court and the High Court are much wider than those of the British Courts vide Dwarka Nath vs. Income-tax Officer, Special Circle, D Ward, Kanpur & Anr. AIR 1966 SC 81 (vide para 4),Shri Anadi Mukta Sad .....

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habeas corpus has been described as a great constitutional privilege of the citizen or the first security of civil liberty . The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of .....

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because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all. You really believe in freedom of speech if you are willing to allow it to men whose opinion seem to you wrong and even dangerous; and the subject is entitled only to be deprived of his liberty by due process of law, although that due process if taken will probably send him to prison. A man undoubtedl .....

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King doth sit in person, and we have power to examine it, and if it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him, if otherwise, he is to be remanded by us to prison." 25. In Halsbury's Laws of England, (4th Edn., Vol.11, para 1454, p.769), it is stated: "In any matter involving the liberty of the subject the action of the Crown or its ministers or officials is subject to the supervision and control of the judges on habea .....

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The writ has frequently been used to test the validity of acts of the executive and, in particular, to test the legality of detention under emergency legislation. No peer or lord of Parliament has privilege of peerage or Parliament against being compelled to render obedience to a writ of habeas corpus directed to him." 21. In para 2 of Subhash Popatlal Dave (supra) it has been held as under: 2. A common question initially arose in all these matters as to whether detention order passed unde .....

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ment on this question vide judgment and order dated 10.07.2012 reported in (2012) 7 SCC 533 that the right of a proposed detenu to challenge a preventive detention order passed against him may be challenged at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia s case and it was held therein that the order of preventive detention can be challenged beyond the five conditions enumerated in Alka Subhash Gadia s case. To make it explicitl .....

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ed by learned counsel for the petitioner can be considered by this court at the pre-execution stage in this writ petition. 24. The first argument raised by Mr.Ashutosh, counsel for the petitioner is that the detention order was passed on 10.9.2013 but till date has not been executed, despite the fact that throughout this period the petitioner was available at home and was attending all his daily routine activities. 25. A similar question had arisen before the Full Bench in the case of Subhash Po .....

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ion order which remained unexecuted. For the sake of brevity, I refrain from repeating the facts of each writ petition, appeals and transfer petition herein which have been consolidated and heard as a batch, as they have already been recorded in the judgment and order of the Hon ble the Chief Justice Atlamas Kabr. 26. Based on the averments made in the counter affidavit and the supporting documents to show the publication and citation under Section 82 of the Code of Criminal Procedure, we hold t .....

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d the detention order and, thus, sought quashing of the detention order. The Supreme Court has lucidly dealt with the law in the case of Subhash Popatlal (Supra) and held that an absconder or a person who evades the execution of the detention order would not be entitled to challenge the detention order at the pre-execution stage on the ground that the detention order has taken a long time for execution. In the case of Subhash Popatlal (Supra) it was held: 6. ...... This Court in a series of deci .....

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specially when the order of detention is allowed to be challenged before the appropriate court even at the pre-execution stage on any ground that may be available to him except of course the materials which has weighed with the authorities to pass the order of detention as it is obvious that justifiability of the material cannot be gone into at the preexecution stage since the order of detention and the ground for such order is yet to be served on the proposed detenue as the proposed detenue wa .....

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e Constitution Bench observed that a person may try to abscond and thereafter take a stand that period for which detention was directed is over and, therefore, order of detention is infructuous. It was clearly held that the same plea even if raised deserved to be rejected as without substance. It should all the more be so when the detenu stalled the service of the order and/or detention in custody by obtaining orders of the court. In fact, in Sayed Taher Bawamiya vs. Govt. of India, (2000) 8 SCC .....

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reexecution stage which remained pending for long and the High Court had allowed the writ petition filed by the respondents detenue therein and quashed the detention order restraining the appellants from enforcing the order. But, this Court overruled it and held that the judgment of the High Court was clearly unsustainable and hence was set aside. It was further held therein that the question as to whether it would be desirable to take the respondents (detenue) back to custody shall be taken by .....

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EPOSA is not punitive but preventive and there must be a live and proximate link‟ so that if there is a long and unexplained delay between the order of detention and arrest of the detenue, the order of detention may be struck down unless the grounds indicate a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is adequately explained and is found to be the result of recalcitrant or refractory conduct of the detenu in .....

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to serve the order, the order could not be executed. Taking the circumstances into consideration under which the order of detention could not be served, it was held that in view of detenue‟s own act of evading arrest, delay in execution of the order did not render the detention invalid. 13. In the matter of Hare Ram Pandey vs. State of Bihar & Ors., (2004) 3 SCC 289, effect of delay in execution of detention order was the principal issue for consideration before the court. This Court .....

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hypothetical in nature. Where a person against whom detention order passed was absconding, plea taken by him or on his behalf that the period for which detention was directed expired, deserved to be rejected. While considering this question, it was held that although the nature and object of the preventive detention order is anticipatory and non-punitive in nature, object is to maintain public order and security of State. This gives jurisdiction to curtail individual liberty by passing the deten .....

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igation despite High Court‟s order would justify questioning of such order. This Court held that the detenue could not take advantage of his own wrong and challenge the detention order on the plea that the purpose of execution of detention order no longer survived as maximum statutory period of detention would have lapsed by then. 15. From the ratio of the aforesaid authoritative pronouncements of the Supreme Court which also includes a Constitution Bench judgment having a bearing and impa .....

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etention and the purpose for which it had been issued at the relevant time. In the light of ratio of the decisions referred to hereinabove and the law on preventive detention, it is essentially the sufficiency of materials relied upon for passing the order of detention which ought to weigh as to whether the order of detention was fit to be quashed and set aside and merely the length of time and liberty to challenge the same at the preexecution stage which obviated the execution of the order of p .....

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the matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre-execution stage when the grounds of detention has not even been served on him. 16. Thus, if it is held that howsoever the grounds of detention might be weighty and sustainable which persuaded the authorities to pass the order of detention, the same is fit to be quashed merely due to long lapse of time specially when the detenue is allowed to challenge the order of detention even before the order o .....

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This, in my view, would render the very purpose of preventive detention laws as redundant and nugatory which cannot be permitted. On the contrary, if the order of detention is allowed to be served on the proposed detenue even at a later stage, it would be open for the proposed detenue to confront the materials or sufficiency of the material relied upon by the authorities for passing the order of detention so as to contend that at the relevant time when the order of detention was passed, the same .....

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ot fit to be quashed and should not be quashed merely due to long lapse of time but the grounds of detention ought to be served on him once he gains knowledge that the order of detention is in existence so as to offer him a plank to challenge even the grounds of detention after which the courts will have to examine whether the order of detention which was passed at the relevant time but could not be served was based on sufficient material justifying the order of detention. Remedy to this situati .....

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of the Constitution of India……. 18. The consequence that follows from the above is that each individual/proposed detenue will have to be served with the order of detention which had been passed against them alongwith the grounds and the materials relied upon by the authorities to pass the order of detention leaving it open to them to challenge the correctness of the order by way of a representation before the appropriate Authority or Court as per procedure prescribed. It is no dou .....

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etention laws. 27. In paragraph 13 aforegoing, we have extracted the relevant paragraph of the counter affidavit filed by the respondents. As per the counter affidavit, the officers of respondent no.3 made an attempt to execute the detention order at the Delhi premises of the petitioner on 18.9.2013, however, the landlord informed the officers that the petitioner had left the premises long back. It is contended that on 30.10.2013, 13.7.2014, 15.10.2014 and 29.12.2014, the officers of Directorate .....

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lished in local Lucknow edition of English and Hindi newspapers on 9.1.2014. It is also contended that despite publication of order dated 20.11.2013, the petitioner did not surrender; thereafter the respondents had no option but to file reports dated 8.1.2014 & 28.2.2014 under Section 8 (1) (a) of PIT NDPS Act before the Ld. CMM, New Delhi. On 14.3.2014, the Ld. CMM, New Delhi passed orders for issuing process under Section 82 of the Code of Criminal Procedure qua the petitioner. The process .....

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I, DZU had visited at the premises of the petitioner, but the petitioner was not found available. The process issued under Section 82 of the Code of Criminal Procedure had been pasted at the conspicuous part of the said premises. Thereafter again order of issuance of fresh process under Section 82 of the Code of Criminal Procedure was repeated on 31.3.2015, returnable on 1.6.2015. 28. In view of the detailed discussion by the Supreme Court and having regard to the fact that the petitioner is an .....

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aph 15, which has been reproduced above, wherein it has been held that in the pre-execution stage, the court can examine all grounds except the ground regarding sufficiency of all material relied upon by the detaining authority in passing the order of detention. It has been held When a proposed detenu is allowed to challenge the order of detention at the pre-execution stage on any ground whatsoever contending that the order of detention was legally unsustainable, the Court will have an occasion .....

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the petitioner and the co-accused persons, namely, Nilesh Shukla and Virender Singh. The orders so passed stand revoked on the recommendation of the Advisory Board. 31. It is submitted that the detention orders were revoked, as the incident took place on 23 / 24th October, 2011, whereas the detention order were passed on 10.9.2013 after a long and undue delay, thus the live link between the incident and the passing of the detention order stands snapped. 32. In the case of Rajinder Arora Vs. UOI .....

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ct, 1994. 20. Furthermore no explanation whatsoever has been offered by the Respondent as to why the order of detention has been issued after such a long time. The said question has also not been examined by the authorities before issuing the order of detention. 21. The question as regard delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.D. Abdul Rahman v. State of Kerala and others [AIR 1990 SC 225] stating: "10 .....

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down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when calle .....

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uinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner." 22. The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been assigned at all. 33. In the case of Sumitra Dey Bhattacharya Vs Union of India, W.P. (Crl.) No. 2118/2014 dated 22.01.2015, this court has held as under: 59. ……. The petition must succeed even on the .....

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ircular bearing F.No.671/6/2001- Cus.VIII, Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, has taken note of this. Accordingly, the petition is allowed. 34. A careful reading of the judgments of Rajinder Arora and Subhash Popatlal Dave (supra) leads to the conclusion that a writ petition at the pre-existing stage or pre-execution of the detention order stage is maintainable, and the Courts are entitled to examine all grounds except the groun .....

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