TMI Blog2012 (2) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... 7A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `NDPS Act'). The prosecution case against the proposed detenu is that in his bank account, an amount of ₹ 2,00,000/- and ₹ 4,00,000/- were deposited on 31.1.2008 and 3.3.2008 respectively, being the amount towards the part-value of heroin purchased by Habeeb Rahman (A1) from one Chottu (A4). In execution of the warrant of arrest issued by that court, the proposed detenu was arrested from Chandigarh on 24.7.2011 and after obtaining production-cum-transit remand from duty Magistrate, Chandigarh he was produced before the Special Court, NDPS Act cases, Vadakara on 26.7.2011 and since then he has been in judicial custody. 3. Earlier, the Government of Kerala, with a view to prevent the aforesaid Rajesh Bharadwaj, the husband of the petitioner, from engaging in illicit traffic in narcotic drugs and psychotropic substances, have issued Ext.P1 order of detention/Ext.R1(a), on 27.8.2008 under section 3(1) of the PITNDPS Act. Admittedly, the said order of detention is still to be executed. On 5.8.2011, Ext.P5 memo was filed by the Additional Public Prosecutor, Vatakara before the Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of live proximate link between the prejudicial activity and the purpose of detention, abuse of power in issuing the same based on solitary incident on apparent absence of previous prejudicial activities, violation of fundamental rights under Article 21 of the Constitution of India have also been raised. To buttress such contentions the petitioner is relying on various decisions of the Hon'ble Apex Court. In short, according to the petitioner, it would be a travesty of justice to continue with the order of detention without a trial at this stage. The petitioner seeks issuance of appropriate writ, order or direction quashing the unexecuted Ext.P1 order dated 27.8.2008 passed under section 3(1) of the PITNDPS Act against the husband of the petitioner, the proposed detenu. Relying on the decision of the Hon'ble Apex Court in Deepak Bajaj v. State of Maharashtra and another (2009 KHC 4327) the learned counsel for the petitioner contended that Ext.P1 order of preventive detention is open to challenge in the pre-execution stage. The learned counsel for the petitioner further contended that the five grounds mentioned in the decision of the Hon'ble Apex Court in Additional Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three days advance notice should be given to him for his arrest. It is also stated in the counter affidavit that in view of the said direction he could not be arrested. In the meanwhile, after the investigation, the DRI filed Ext.P2 complaint before the Additional District Sessions Court (Special Court, NDPS Act cases), Vatakara. According to the statements in the counter affidavit, on 26.6.2008 the DRI Officials visited the house of the proposed detenu, after obtaining non-bailable warrant under section 41(1) of the NDPS Act, from the Additional District Sessions Court (Special Court, NDPS Act cases), Vatakara. As he was absconding, it could not be executed, it is stated therein. According to respondents 1 and 2 it was in consideration of the aforesaid facts and circumstances and pursuant to a proposal from the Directorate of Revenue Intelligence, Calicut Unit that Ext.P1 order of detention dated 27.8.2008 was issued against Rajesh Bhradwaj, the proposed detenu. Shortly, thereafter viz., on 30.8.2008 Ext.R1(b) communication was forwarded to the Home Secretary, Chandigarh Administration for immediate execution of Ext.P1, along with a copy of Ext.P1 order with grounds and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n preventive detention. It was in the said circumstances that Ext.P5 memo was filed before the Additional District Sessions Court (Special Court, NDPS Act cases),Sessions Court, Vatakara. Ext.R1(j) would reveal that a petition was filed before that Court to permit execution of Ext.P1 detention order. The said petition was adjourned for hearing the counsel of the proposed detenu. Ext.R1(k) is the copy of the said application dated 21.8.2011. So far no order has been passed on Ext.R1(k), it is further stated. In sum and substance, the contention of respondents 1 and 2 is that the detention order could not be executed as the proposed detenu was absconding and the contentions that Ext.P1 order has lost its relevance and that it had outlived its purpose were denied. It is also stated in the counter affidavit that Ext.P7 representation submitted by the petitioner was rejected as per Ext.R1(q) dated 14.9.2011. In the above factual background, it is contended by respondents 1 and 2, in the light of the decision in Additional Secretary to the Government of India Ors. v. Smt.Alka Subhash Gadia Anr. (1992 (Suppl.1) SCC 496) that Ext.P1 order of detention cannot be challenged at the pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka Subhash Gadia's case (Supra). It has been held by the Hon'ble Apex Court in that case that in exceptional cases such a pre-execution challenge against a preventive detention order is maintainable. Whether the said exceptional circumstances indicated in Alka Subhash Gadia's case (Supra) viz., the five grounds contained therein are only illustrative or exhaustive? In Deepak Bajaj v. State of Maharashtra Anr. (AIR 2009 SC 629) it was held by the Hon'ble Apex Court that exceptions indicated in Alka Subhash Gadia's case (Supra) are only illustrative and not exhaustive. In fact, this question was elaborately discussed by this Court in Allex C. Joseph v. Union of India and Others (2011 (4) KHC 923). 10. Firstly, we will deal with the contention of the learned Government Pleader that Ext.P1 order is unassailable at the pre- execution stage and only after its execution any challenge against the same could be entertained. We are afraid, such a contention cannot be countenanced in the light of the decisions of the Hon'ble Apex Court in Alka Subhash Gadia's case (supra) and Deepak Bajaj's case (supra) and also that of this Court in Allex C. Joseph's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (Supra) are illustrative or exhaustive. As stated earlier, the question whether the grounds mentioned in Alka Subhash Gardia's case are illustrative or exhaustive was elaborately considered by a Division Bench of this Court in Allex C. Joseph's case (supra). This Court took note of the fact that a Division Bench of three Judges of the Hon'ble Apex Court in the decision in Sayed Taher Bawamiya v. Joint Secretary to Government of India and others ((2000) 8 SCC 630) held that the five grounds for pre-execution challenge of a preventive detention order mentioned in Alka Subhash Gadia's case (Supra) were not illustrative but, exhaustive. Subsequently, a Division Bench in Union of India and others v. Muneesh Suneja ((2001) 3 SCC 92) and yet another Bench of three Judges in Nareshkumar Gopal v. Union of India ((2005) 8 SCC 276) also took the same view. The contra view taken by a Division Bench of two Judges of the Hon'ble Apex Court in Deepak Bajaj's case (supra) to the effect that the grounds for a pre-execution challenge mentioned in Alka Subhash Gadia's case (Supra) were only illustrative and not exhaustive, was also taken note of. Relying on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution is solely owing to the abscondance of the proposed detenu. While considering the question whether there is inordinate delay in its execution and whether on that count the proposed detenu is entitled to any relief certain factors have to be looked into. Whether the proposed detenu was an abscondee? Whether the delay in issuing and also executing the detention order are fatal? Incidentally, the issue whether any serious effort had been made for executing Ext.P1 order of preventive detention has also to be looked into. The specific contention of the petitioner is that Ext.P1 order has been issued based on a solitary incident that lacks even an iota of truth. The sum and substance of the allegation is that ₹ 2,00,000/- and ₹ 4,00,000/- were deposited on 31.1.2008 and 3.3.2008 respectively in the Bank account of the proposed detenu towards part value of heroin purchased by the first accused one Habeeb Rahman and the 4th accused one Chotu in S.C.No.40 of 2008 on the files of the Special Court for NDPS Act cases, Vadakara. The question whether there is evidence or truth in the allegations against the proposed detenu is not a matter that falls within the scope of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment, Chandigarh Administration informed that the proposed detenu was searched several times at his house and he was not available. It is further stated in the counter affidavit that in answer to the repeated correspondences the Chandigarh Administration replied that they were keeping vigil. The question is, whether such efforts could be described as earnest efforts and could be assigned as a reasonable explanation for the delay in execution of the detention order? In this context, it is relevant to note the incontrovertible and un-controverted position that the proposed detenu was regularly appearing before the Court of JMIC, Rewari, Haryana since 2008 in connection with a case involving allegation of commission of offences punishable under sections 467, 468, 471, 120B I.P.C. The learned counsel for the petitioner made available a copy of the orders passed by the Chief Judicial Magistrate, Chandigarh in a crime registered against the proposed detenu Rajesh Bharadwaj, as Crime No.253 dated 24.4.2008 of Police station Sector 17, Chandigarh. It would reveal that FIR No.253 dated 24.4.2008 was registered by the said police station against the proposed detenu alleging commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner submitted that the delay in passing Ext.P1 order of detention coupled with the fact that the order of detention has not so far been executed and the other contentions raised above would reveal that the order of detention is not one passed with the avowed purpose. According to the petitioner, the live and proximate link between the ground of detention and the purpose of detention has snapped. In this context, it is relevant to refer to the decision of the Hon'ble Apex Court in Naresh Kumar Goyal v. Union of India and others ((2005) 8 SCC 276). After referring to the judgments of the Hon'ble Apex Court in P.U.Iqbal v. Union of India ((1992) 1 SCC 434) and Ashok Kumar v. Delhi Admn. ((1992) 2 SCC 403) it was held therein thus:- 8. It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the antisocial and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Additional Secretary to the Government of India Ors. v. Smt.Alka Subhash Gadia Anr. (1992 (Suppl.1) SCC 496) and Sayed Taher Bawamiya v. Joint Secretary to Government of India and others ((2000) 8 SCC 630) we hold that the order made by the High Court is bad in law and deserves to be set aside. (emphasis supplied) In view of the judgment of the Hon'ble Apex Court in Muneesh Suneja 's case (supra) it cannot be contended that there is an inviolable position that even in case of inordinate delay and in the absence of proper explanation for the same or absence of good reasons for the delay an order of detention could not be interfered with. As held by the Hon'ble Apex Court, all such matters have to be looked into in the light of the facts of each case. The inescapable conclusion is that in a case where there is an inordinate delay in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case in hand, reckoning from the date of detention order the maximum period provided thereunder has already over. As held by the Hon'ble Apex Court the order of detention is not curative or reformative or punitive action but it can only be a preventive action. In this case, Ext.P1 order would reveal that the avowed object was to prevent the proposed detenu from engaging any illicit traffic in narcotic drugs and psychotropic substances. It is also pertinent to note that there is no case for the respondents that the proposed detenu had engaged in any illicit traffic in narcotic drugs and psychotropic substances. We have also found that in view of the facts obtained in this case, the proposed detenu cannot be said to be an abscondee. The circumstances emerging in this case therefore, constrain us to uphold the contention that the order of detention was issued either with a wrong purpose or that it was passed on vague grounds. Certainly, the inordinate delay in execution of Ext.P1, in the circumstances explained above, in the absence of proper explanation and good reasons, is fatal. In such circumstances, the case in hand would fall within the grounds mentioned in Alka Subhash Gar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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