TMI Blog2009 (2) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act‟). The said detention order was in respect of the petitioner‟s husband Mr Manish N. Vora and, as the recital in the said order dated 17.08.2001 indicates, the same had been issued with a view to preventing the said Mr Manish N. Vora from acting in any manner prejudicial to the augmentation of foreign exchange in future. 2. It is an admitted position that the said detention order has remained unexecuted mainly for the reason that the proposed detenu has remained outside India. When the matter came up for hearing before us on 07.01.2009, Mr Ashok Desai, the learned senior advocate appearing on behalf of the petitioner, placed before us the following three decisions of the Supreme Court:- 1. Maqsood Yusuf Merchant v. Union of India Anr: Crl. A. 1337/2008 decided on 22.08.2008; 2. Deepak Bajaj v. State of Maharashtra Anr: WP(Crl) 77/2008 decided on 12.11.2008; and 3. Yusuf Razak Dhanani v. Union of India Ors: WP(Crl) 132/2007 decided on 21.11.2008. On the basis of these decisions, Mr Desai made two-fold submissions. First of all, he submitted that the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector, Directorate of Enforcement, Department of Revenue, Ministry of Finance. In this affidavit it has been stated that all efforts made by the respondents to serve the order of detention upon Mr Manish N. Vora had proved futile as he had concealed himself in a foreign country suspected to be UAE (Dubai). It was further stated that UAE (Dubai) had emerged as a centre for hawala and other money laundering activities which also had severe ramifications with regard to the safety and security of the country and it was, therefore, imperative that the petitioner‟s husband be directed to submit himself to the process of law especially when he had been declared a proclaimed offender under Section 7(1)(a)(b) of the COFEPOSA Act. In the said affidavit, with regard to the issue of whether the order of detention had lost its relevance due to passage of considerable time, it was stated that whether a person indulging in prejudicial activities or otherwise is a subject matter of enquiry and in the present case the proposed detenu was concealing himself in a foreign jurisdiction, therefore, this aspect remained unverifiable and the petitioner cannot be given any indulgence. 4. Mr Ashok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Alka Gadia (supra) to be the starting point of their submissions, it would be instructive to notice the exact words and expressions used in that decision. The question that fell for consideration before the Supreme Court was whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it. The said question was, inter alia, answered in the following manner:- 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 the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... type of cases. The Supreme Court in N. K. Bapna (supra) observed that the question was answered by saying that the courts have power to interfere even before the detention order is served or the detention is effected but that such power will be exercised sparingly and in exceptional cases of the type enunciated therein. Thereafter, the passage from Alka Gadia (supra) was quoted with approval by the Supreme Court in N. K. Bapna (supra). This decision also indicates that while the Court has power to interfere with the detention order even prior to its execution, such power is to be exercised sparingly and in exceptional cases of the type enunciated in Alka Gadia (supra). The decision in N. K. Bapna (supra) cannot be regarded as one which states that the list of exceptional cases mentioned in Alka Gadia (supra) was exhaustive. It merely specifies that the power which is available with the High Court is to be used sparingly and in exceptional cases of the type mentioned in Alka Gadia (supra). This indicates that the Supreme Court in N. K. Bapna (supra) also did not construe the exceptional cases mentioned in Alka Gadia (supra) to be strictly exhaustive but merely indicative of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances mentioned in Alka Gadia (supra) were exhaustive and not illustrative. 10. We then come to the decision in Amrit Lal Manchanda (supra). In that decision, reference was made to the earlier decision in Sayed Taher Bawamiya v. Joint Secretary to the Government of India: (2000) 8 SCC 630 wherein the Court took the view that the exceptions mentioned in Alka Gadia (supra) were exhaustive and not illustrative. According to the decision in Sayed Taher Bawamiya (supra), the decision in Alka Gadia (supra) made it clear that it was only in the five type of instances mentioned therein that the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre- execution stage. In Amrit Lal Manchanda (supra), the Supreme Court held that petitioner cannot be allowed to have an unfair advantage and double benefit of his own action, which delayed the execution of the detention order. The Court observed that it is open to the proposed detenu to surrender and, as was observed in Parasmal Rampuria (supra), then take such plea as was available in law. It was noted that in Sayed Taher Bawamiya (supra) the gap of 16 years between the order of detention and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India, 1950 (in short the Constitution‟) can interfere at the pre execution stage with the detention order only if they are satisfied that:- (i) the impugned order is not passed under the Act under which it is purported to have been passed; (ii) it is sought to be executed against a wrong person; (iii) it is passed for a wrong purpose; (iv) it is passed on vague, extraneous and irrelevant grounds; or (v) the authority which passed it had no authority to do so. 13. These line of decisions do indicate 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. The implication, therefore, is that the circumstances mentioned in Alka Gadia (supra) are exhaustive and not illustrative and that unless and until a case falls under any one of those five circumstances, the Court would be precluded from entertaining a petition challenging a detention order at the pre-execution stage. 14. We now examine the line of decisions relied upon by Mr Ashok Desai. In T. A. Abdul Rahman (supra), which was a decision essentially on the point that there must be a prox ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the arrest of the detenu from the date of the passing of the order, and keeps stunned silence on that score. The learned Counsel appearing for the first respondent when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order of detention made on 7.10.1987, he has frankly admitted that he could not do so-rightly so in our view-in the absence of any explanation in the counter affidavit. The Superintendent of Police, Malapuram to whom the detention order was forwarded for execution has not filed any supporting affidavit explaining the delay in securing the arrest of the detenu. Under these circumstances, we hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non- explanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n effect to any further. The Court, of course, observed that this would not prevent the respondents in future to pass any similar order in the event similar allegations were raised against the appellant therein. In Maqsood Yusuf Merchant (supra) the facts were that despite the order of detention having been passed as far back as on 19.03.2002, the same could not be or had not been executed against the appellant till the date of decision by the Supreme Court (22.08.2008). The detention order was in respect of the activities indulged in or said to have been indulged in by the appellants as far back as in 2002. Before the Supreme Court it had been fairly submitted, on instruction on behalf of the Union of India, that since the order of detention had been passed the appellant therein had not indulged in similar activities. In these circumstances, the Supreme Court felt that the continuation of the detention order would be an exercise in futility and the same should, therefore, not be given effect to any further. This decision is an instance of a case where a detention order has been discontinued, even though the same had not been executed, merely on the ground that during the period co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of the Supreme Court indicates that the five circumstances mentioned in Alka Gadia (supra) are exhaustive and another line of decisions of the Supreme Court of benches of equal strength indicates that the said circumstances are illustrative and not exhaustive. This raises the question as to what the High Court is to do in a situation where there is a conflict between decisions of the Supreme Court rendered by Benches of equal strength. In Ganga Saran v. Civil Judge, Hapur, Ghaziabad and Others: AIR 1991 All 114, a Full Bench of the High Court of Allahabad considered this very question. The Full Bench observed as under :- 7. One line of decision is that if there is a conflict in two Supreme Court decisions, the decision which is later in point of time would be binding on the High Courts. The second line of decisions is that in case there is a conflict between the judgments of Supreme Court consisting of equal authorities, incidence of time is not a relevant factor and the High Court must follow the judgment which appears it to lay down law elaborately and accurately. 20. The Full Bench of the Allahabad High Court referred to a Full Bench decision of the Punjab and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of whether the five conditions mentioned in Alka Gadia (supra) were exhaustive or illustrative, ought to be followed as it specifically went into the question and answered the same. He submitted that the later decision in the case of Atam Parkash (supra), which was relied upon by Mr Ashok Panda, ought not to be followed because it did not refer to the decision in Deepak Bajaj (supra). 24. We have already noted above that the decision in Deepak Bajaj (supra) considered several decisions, including the decision in Bhaurao Punjabrao Gawande (supra), which, in turn, referred to a host of decisions on the subject, including the decision in the case of Subhash Muljimal Gandhi (supra) and N.K. Bapna (supra). After considering the said decisions, the Supreme Court in Deepak Bajaj (supra) concluded that the five grounds for entertaining a writ petition at the pre-execution stage mentioned in Alka Gadia‟s case are illustrative and not exhaustive. We are of the view that the Supreme Court decision in Deepak Bajaj (supra) lays down the law accurately and elaborately. We have already noted that though Atam Parkash (supra) is later in point of time than the decision in Deepak Bajaj (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is maintainable at the pre-execution stage even in circumstances other than those mentioned in Alka Gadia (supra), the next question is whether the situation prevailing in the present case is one which would warrant interference by this court. This brings us to consider the decision in Maqsood Yusuf Merchant (supra) where the Supreme Court observed that despite the order of detention having been passed as far back as on 19.03.2002, the same not having been executed till the date of the Supreme Court decision (22.08.2008) and there being no indication of the proposed detenu therein having indulged in any prejudicial activities after 2002, the Supreme Court felt that the continuation of the detention order would be an exercise in futility and the same, therefore, be not given any effect to any further. In that case, it is true, the Union of India had conceded that since the order of detention had been passed, the proposed detenu had not indulged in any prejudicial activity. In the present case, we find that though there is no concession on this point, there is no evidence placed before us to indicate that the proposed detenu (Mr Manish N. Vohra) has indulged in any prejudicial activ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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