TMI Blog2009 (1) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained. 2. In so far as the facts of this case are concerned, the petitioner states that on 23rd and 25th April, 2008, the Officers of the Directorate of Revenue Intelligence (hereinafter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court and that was rejected. Thereafter, he moved this Court for bail resulting in Ext.P22 order, recording the undertaking of the Department. It is stated that while his bail application is thus pending with the undertaking not to arrest him, Ext.P23 order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 was issued ordering his detention. It is this order which is under challenge in this writ petition. 4. Although the settled position of law is that an order of detention cannot be challenged at its pre-execution stage, the petitioner seeks to sustain the challenge in this writ petition relying on the judgment of the Apex Court in Deepak Bajaj v. State of Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammeled 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 efficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law under which it is made will be frustrated since such orders are 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 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner is that the Senior Intelligence Officer of the DRI has cooked up evidence against him for the reason that following the search that was conducted in his house on 23rd and 25th April, 2008, a complaint has been filed by his wife before the Superintendent of Police, Chandigarh and that the petitioner himself had made a complaint before the National Human Rights Commission. It is on this basis it was argued that the order was passed for a wrong purpose. Two aspects are to be noticed here. First of all, the petitioner has not pleaded that the Senior Intelligence Officer of the DRI had any preexisting malafide motive to implicate the petitioner. If that be so, malafide motive cannot be attributed against the search that was con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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