TMI Blog2015 (9) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 repeated on 28.5.2014, returnable on 30.8.2014. The process under Section 82 Cr.P.C. was published in Indian Express dated 9.8.2014. The said process under Section 82 of the Code of Criminal Procedure qua the petitioner was again repeated on 2.9.2014. A careful reading of the judgments of Rajinder Arora [2006 (3) TMI 173 - SUPREME COURT OF INDIA] and Subhash Popatlal Dave (2013 (8) TMI 8 - SUPREME COURT) 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 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, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and relied upon documents, besides the similar material in respect of other co-accused/detenus, who were detained earlier on the same set of facts and circumstances. It is also prayed that the detention order dated 10.9.2013 passed by respondent no.2 be quashed. 4. At the very outset, we may notice that this criminal writ 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 writ petition also discloses, based on the grounds of detention of the co-accused, that the petitioner and other co-accused persons were involved in activities of acquiring, possessing, hoarding, selling and exporting NDPS items. 6. The first ground urged by counsel for the petitioner is that the order of detention dated 10.9.2013 is liable to be quashed as the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Nagar (West), near Manglam Hospital, New Delhi, which had come to the notice during the investigation and from where 47.318 kg. (net) Ketamine, one hard disc and ₹ 1,00,000/- in cash, had been recovered and seized. The officers of respondent No. 3 made attempt to execute the detention order at the said Delhi premises of the petitioner on 18.9.2013. But the petitioner was not available there. The landlord of the premises informed the officers that the petitioner had left the premises long back. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e uncle of the petitioner, Shri Ramesh Chand Shukla, who was available there, informed that the petitioner alongwith family was residing in Mumbai, but he was neither 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 court had no option but to issue non-bailable warrants against him, returnable on 6.7.2014. The process was not served as the petitioner was not available at his native address. A copy of order dated 13.5.2014 is Annexure-G. f. The petitioner did not appear before the Ld. Trial Court on 14.10.2013, 3.2.2014 and 13.5.2014. The court had to issue non-bailable warrants against the petitioner on 13.5.2014. However, on 15.7.2014 the petitioner moved an application for recall of order dated non-bailable warrants and the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the 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 court should disregard all these time-honoured and well-tested judicial self restraints and norms and exercise their said powers, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 (2010) 4 SCC 122, has held that the five grounds mentioned in the case of Alka Subhash Gadia (Supra), on which the Court can set aside the detention order at the pre-execution stage, are only illustrative and not exhaustive. It was held as under: 9. If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Firstly, Article 226 and Article 32 of the Constitution permit the High Court and the Supreme Court to not only issue the writs which were traditionally issued by British Courts but these Articles give much wider powers to this Court and the High Court. This is because Article 32 and Article 226 state that the Supreme Court and High Court can issue writs in the nature of habeas corpus, mandamus, certiorari, 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 Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust Ors. vs. V.R. Rudani Ors. AIR 1989 SC 1607 (vide para 16 to 18), etc. 21. Secondly, what the petitioner really prays for is a writ in the nature of certiorari to quash the impugned detention order and/or a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise, 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 habeas corpus. The judges owe a duty to safeguard the liberty of the subject not only to the subjects of the Crown, but also to all persons within the realm who are under the protection of the Crown and entitled to resort to the courts to secure any rights which they may have, and this whether they are alien friends or alien enemies. It is this fact which makes the prerogative writ of the highest constitutional importance, it being a remedy available to the lowliest subject against the most powerful. 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 hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conded or evaded the execution of the detention order, who subsequently challenged the order of their detention even at the pre-execution stage after a long lapse of time could take advantage of non-execution and challenge the detention 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 that the petitioner is an absconder and he has been intentionally evading the execution of the detention order. In the case of Subhash Popatlal (Supra), the writ petitions which came up for hearing before the Supreme Court of India, pertained to those detenus, who had absconded or evaded the execution of the detention order and subsequently challenged the detention order raising a ground at the pre-execution stage that after a long lapse of time there would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 630, the factual position shows that 16 years had elapsed yet this Court rejected the plea that the order had become stale. 9. These aspects were once again highlighted in Hare Ram Pandey vs. State of Bihar Ors., (2004) 3 SCC 289, Union of India vs. Amrit Lal Manchanda Anr., (2004) 3 SCC 75 and Union of India vs. Vidya Bagaria (2004) 5 SCC 577. In yet another matter of Union of India Ors. vs. Atam Parkash Anr. (2009) 1 SCC 585, the detention order was challenged at the preexecution 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 the Government within two months and appeal filed by the Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in consideration of the representation etc. are 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 detention order. Order of detention is passed on the basis of subjective satisfaction of detaining authority. 14. The legal position was reiterated in the matter of Dropti Devi and Anr. vs. Union of India Ors., (2012) 7 SCC 499 wherein one of the questions which arose for consideration was whether the detenue could be allowed to take advantage of his own wrong on the plea that the maximum period of detention prescribed having expired and the detenue in the said case having failed to join investigation despite High Court‟s order would justify questioning of such order. This Court held that the detenue could not take advantage of his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be offered with a doubleedged weapon to use to his advantage circumventing the order of detention. On the one hand, he can challenge the order of detention at the pre-execution stage on any ground, evade the detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be served and finally seek its quashing on the plea that it has lost its live link with the order of detention. 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 was based on non-existent or unsustainable grounds so as to quash the same. But to hold that the same is fit to be quashed merely because the same could not be executed for one reason or the other specially when the proposed detenue was evading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 of Revenue Intelligence, Lucknow Zonal Unit visited 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. 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) vide S.O.3457(E) dated 22.11.2013; and the contents of the said gazette order were also published 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. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to be challenged at the pre-execution stage when the grounds of detention have not even been served on him . 30. Mr.Ashutosh, counsel for the petitioner has also contended that identical detention orders dated 10.9.2013 have been passed in respect to 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 Ors. Reported at (2006) 2 SCC (Crl.) 418, it was held that: 19. The said counter affidavit has been affirmed in November, 2005. It is beyond anybody's comprehension as to why despite a long passage of time, the Respondents have not been able to gather any material to lodge a complaint against the Appellant. It has furthermore not in dispute that even the DGFT authorities have not issued any show cause notice in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umitra 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 ground of not passing the detention order for a period of 8 months, after the proposal was accepted on 28.6.2013. The sole purpose of passing the detention order is that the live link between the occurrence and the order should not become stale. By the time the proposal is sent it is deemed that the investigation is complete, which is enough to detain a person, and any additional investigation which may have been carried out, cannot be a ground to explain the delay The department itself in its Circular 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 ground relating to sufficiency of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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