TMI Blog2011 (12) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal, arbitrary and mala fide. Import of four old and used cars by four non-resident Indians who had returned back to India for permanent settlement, is stated to be the basis of the impugned order. It is contended that customs duty had been paid by the importers. He refers to the fact that of the four cases which engaged the attention of the statutory authorities, three of the cases were decided in favour of the petitioner. In one of the cases which culminated in Ext. P10 judgment of a Division Bench of this Court, the Court reduced the penalty from ₹ 2,00,000/= to ₹ 1,00,000/=. It is contended, inter alia, in the petition that there is gross delay of more than ten years in executing the order. 4. We heard Shri. M. K. Damodaran, learned senior counsel for the petitioner; Shri. Biju, who appeared on behalf of respondents 1 and 2, Union of India and Joint Secretary, Government of India in the Ministry of Finance, Department of Revenue; Shri. C. P Udaya Bhanu, learned counsel appearing on behalf of the 4th respondent, namely the Additional Director of the Directorate of Revenue Intelligence, Cochin which is the sponsoring authority and also Shri. T. Asaf Ali, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pleadings. 6. Per contra Shri. Biju, learned counsel appearing on behalf of respondents 1 and 2 submits that the petitioner was absconding. He took us through the pleadings. It is pointed out that he was caught when he was travelling on a false passport obtained on an assumed name. He also sought to distinguish the decisions relied on by the learned senior counsel for the petitioner. He further pointed out that the petitioner had actually shifted his base. He further contended that the detention order itself was not in force because it has been executed and the Writ Petition will not lie. He would submit that the petitioner has remedies as provided under Section 8 of the Act and he can approach the Advisory Board and he can file representations, he points out. He would submit that the grounds of detention which have been served on the petitioner will actually reveal circumstances justifying the issuance of the order of detention. 7. Shri. C. P. Udaya Bhanu, learned counsel for the Additional 4th respondent also submits that this is a case where the Writ Petition has become infructuous, as the impugned order has been executed. He would also submit that the petitioner was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original Passport Number is 1269046. It is submitted that he has taken a new Passport in the name Abey John affixing his photo and suppressing the real facts before the Passport Authorities. Still later, the additional fourth respondent, namely the sponsoring authority has filed a counter-affidavit. It is, inter alia, stated that even though the order of detention was attempted to be served on him on his last known address at Thiruvalla in Pathanamthitta District, Kerala, he evaded service by absconding. It is stated, incidentally this is the same address which the petitioner flaunts in the present petition. Subsequently, action was taken under Section 7(1)(a) of the Act by publishing the order of detention in the gazette by which he was ordered to surrender for detention. Sufficient publicity was given at Thiruvalla and a report was submitted to the Court of the Chief Judicial Magistrate, Pathanamthitta to declare him as an absconder. He refused to surrender and he instead approached the High Court of Calcutta. The sponsoring authority was not made a party. It got itself impleaded and sought time for presenting their case. Then, their petitioner withdrew the case. When the Invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders exonerated the petitioner from the allegations, petitioner filed a Writ Petition challenging the impugned order before Hon ble High Court of Calcutta. However, at the insistence of DRI, Customs Authority had filed an appeal challenging the orders where petitioner was exonerated. Due to the pendency of such appeal, the Hon ble Court was not inclined to grant relief to the petitioner and the petitioner withdrawn the said petition. Thereafter petitioner came back to Kerala and continuing with litigation to prove his innocence. But when petitioner was again exonerated by Hon ble Tribunal, in two cases, petitioner filed a fresh petition before the Hon ble High Court of Delhi challenging of impugned order. As stated by respondent in the present counter-affidavit, the respondent submitted before Hon ble Court that the order issued by Tribunal are not acceptable to them and they are proposing to file an appeal before higher authority. Hence petitioner decided to withdraw the case and defend the matter in proper forum. Now a stage has come where 3 out of 4 cases where the petitioner exonerated by proper authority and period of filing an appeal against said order is also expired. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per a reliable information received about him, that the son of the petitioner is studying in Desai (Manford) Police School at Erkkad, Salem, Tamilnadu and he used to visit his son there. And it came to know that the son of the petitioner Sangeeth Alex, a 5th standard student joined the school in that academic year and one Susi Alex, Pathenparambil Veedu, Kuttappuzha, Thiruvalla took his admission there and the petitioner never visited his son so far after he had joined the school. 6. Searches were conducted by Dy. SP Thiruvalla and Police party at the petitioner s relative s house at Kuttappuzha. But no useful information had been received about the petitioner so far. Enquiries are being continued. Detention order against the petitioner Alex C. Joseph is pending with Thiruvalla Police Station. 7. As alleged in the petition, the petitioner is not residing in Thiruvalla. The allegation raised by the petitioner that no one is trying to execute the detention order against him is insignificant. He has gone somewhere outside Kerala and Police is trying to collect his whereabouts and arrival here to execute the Warrant. 10. An additional Counter-Affidavit was filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the law even before the issue of the Detention Order when the investigation was in progress. It is also an established fact the petitioner have never appeared before the investigating Officers of DRI during the investigations of the 4 cases mentioned above, and he had also not appeared for any personal hearing before the Adjudicating or Appellate Authorities under Customs Act. Several summonses/letters calling for his appearance has been returned unclaimed from the petitioner s address and copies of the same are included in the documents presented to the petitioner on 12.11.2011. After the Detention Order was issued and the petitioner having absconded, the detaining authority made a declaration in the Gazette of India on 01.06.2000 (Ext. R4(6)). Thereafter, as he continued absconding, a report was filed before the JFCM Court at Pathanamthitta for initiating proceedings to declare the petitioner as an absconder (Ext. R4(7)). Meanwhile, the Superintendent of Police, Pathanamthitta, had maintained a continuous surveillance at his last known address for execution of the order, but he was never found visiting that address. Letters from the Deputy Supdt. of Police to that effect (Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my innocence. The judgment in OS No. 8/2005 will not reveal that I was not residing in Thiruvalla or Kerala as alleged. Thereafter, no doubt, a second additional Counter-Affidavit was filed by the sponsoring authority. However, we find that the petitioner may be justified in contending that we may not rely on it, as the copy was not served sufficiently early, so that a reply could be filed to those allegations. 12. It is necessary to refer to the decisions referred to by the petitioner. In T. A. Abdul Rahman Vs. State of Kerala and Others, AIR 1990 SC 225 a case under the Act, the Court took the view that no hard and fast rule can be laid down in the matter of deciding whether delay has resulted in link being snapped. But the Court also held that when there is undue and long delay between the prejudicial activities and the detention order, the Court has to scrutinise whether the delay is satisfactorily explained. The Court also held that unsatisfactory and unexplained delay in executing the order would throw considerable doubt on the genuineness of the subjective satisfaction. That was a case where there was a delay of three months in securing the arrest of the detenu. In A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would mean that the Courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri. Sibal for the appellants, as far as detention orders are concerned, if in every case, a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. Having regard to the findings aforementioned, we are of the opinion that Grounds (iii) and (iv) of the decision of this Court in Alka Subhash Gadia are attracted in the instant case. Next, in Deepak Bajaj Vs. State of Maharashtra and Another, (2008) 16 SCC 14 a Bench of two Judges was dealing with a pre- execution challenge. The Court held, inter alia, that the five grounds mentioned in Gadia s case were not exhaustive, but only illustrative. It was further held that if a person can show that the detention order is clearly illegal, it would be a meaningless and futile exercise to yet send him to jail. It was further found that non-placement of relevant materials before the detaining authority vitiates the detention order and, therefore, Grounds (iii) and (iv) in Gadia s case are attracted. It was found that retractions from confessions were not placed before the detaining authority and that would certainly vitiate the detention. The Court also referred to its decision in Maqsood Yusuf Merchant Vs. Union of India, (2008) 16 SCC 31 apparently invoked by the petitioner therein to contend that as the petitioner had stopped his illegal activities in 2006, the detention at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Judicial Magistrate, Coimbatore on 3rd November, 2003 and sought permission to obtain the signature of Mr. Surendran on affidavits to prove that the detenu had nothing to do with the transactions. Ext. P10 proved the same. On 20th November, 2003 the Magistrate Court passed an order granting permission. Pursuant to that order, the detenu appeared before the Superintendent, Central Jail, Coimbatore on 24th November, 2003, as can be seen from Ext. P11 letter of the Superintendent of Central Jail, Coimbatore. After several visits, he obtained the signature of Mr. Surendran only on 26th November, 2003. The detenu appeared before the Income Tax Officer on 26th December, 2003 also and again appeared on 29th December, 2003 to substantiate his case. Ext. P15 would show that he appeared before the Commissioner of Income Tax, Cochin on 18th March, 2004. All these exhibits would show that the detenu was available at his place of residence and he was not absconding. In Shobha Jayaprakash Vs. Union of India and Others, ILR 2007 (4) Ker. 186 a Division Bench of the Kerala High Court was dealing with a case of delay in executing the detention order. There was a delay of three years. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed Taher Bawamiva Vs. Joint Secretary to the Govt. of India and Others, 2002 CriLJ 259 it is important to note that it was a case of pre-execution challenge. Sixteen years had elapsed from the date of the order. It was noted that it had not been served on the proposed detenu, as he left India nearly eight years before the detention order. When action was taken under Section 6(1) of the Smugglers and Foreign Exchange Manipulations (Forfeiture of Property) Act, the detenu s brother filed a Writ Petition challenging the detention. The High Court took the view, after considering Gadia s case that it would not be appropriate to entertain the petition, as the detenu had not surrendered. A Special Leave Petition was filed. There was also independent Writ Petition filed. The judgment purported to dispose of both proceedings. The Court proceeded to hold that though there is power to interfere, the scope is very limited in the matter of pre-execution detention matters. The Court proceeded to hold as follows: 7. As we see it, the present case does not fall under any of the aforesaid five exceptions for the Court to interfere. It was contended that these exceptions are not exhaustive. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders to their execution on any other ground does not amount to the 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. 32. This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim stay in a Writ Petition from a learned Single Judge. That was vacated. In the Division Bench, the Division Bench granted stay which was extended. The Apex Court took the view that the proper order was to call upon the writ petitioner to surrender and then to have all his grievances examined on merits, after he had an opportunity to study the grounds of detention and to make his representation. We may not be justified in holding that as the petitioner has been arrested, the matter to be is closed as infructuous. If there is otherwise merit in the matter, the fact that he has been arrested during the pendency of the writ petition may not by itself justify the treating the writ petition as infructuous. 16. The contention raised by Shri. M. K. Damodaran, learned senior counsel for the petitioner is that the case at hand comes under the fifth ground declared by the Apex Court in Gadia s case, namely that the order of detention was passed by a person who had no authority to pass the same. We are not impressed by the said argument. The order of detention was made under the Act purportedly under Section 3 thereof. Section 3 of the Act empowers the Central Government of State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In such circumstances, we are of the view that inonclusive state of investigation cannot legitimately help the authorities to pass an order of detention against the detenu on the perfunctory and inchoate material relied upon. According to the learned Senior Counsel for the petitioner, therefore, Ground No. (iv) in Gadia s case is attracted, that is to say the order of detention is passed on vague, extraneous and irrelevant grounds. He invited our attention to the following statement in the Additional Counter- Affidavit of the sponsoring authority: The contention of the petitioner that the detention order was based only on the four cases mentioned above, is not true and hence not acceptable either. 18. We are unable to agree. In Pooja Batra s case (supra), it was a case where the petitioner sought judicial review of the order of detention after it was executed. The order of detention with the grounds of detention were produced and the Court had the opportunity to go through the same. In this case, however, the petitioner has not chosen to produce the grounds of detention by amending the Writ Petition. The contents of the grounds of detention are not brought to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, there can be no hard and fast rules and each case must be decided on the facts. If the proposed detenu absconds and the delay is explained, in the sense that the authorities offer a satisfactory explanation as to why the proposed detenu could not be apprehended, and that the authority had taken all possible steps, then the delay may not come to the rescue of the proposed detenu. 20. We must now consider whether the petitioner is entitled to relief on the ground of delay in passing the order and in executing the order. We must remind ourselves that this is a pre-execution challenge to the order of detention. Delay in execution is not one of the five grounds which have been declared in Gadia s case. In Deepak Bajaj Vs. State of Maharashtra and Another, (2008) 16 SCC 14 though the Court was invited to pronounce on the issue of delay in a pre-execution challenge, the Apex Court did not pronounce on that issue. Still further, we must remind ourselves that, no doubt, the Court in Maqsood Yusuf Merchant Vs. Union of India and Another, (2008) 16 SCC 31 did accept the petitioner s challenge to the detention on the ground that the detention was ordered in the year 2002 and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention cases, interference of Court is not called for except in the circumstances set-forth by us earlier, If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order, for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In 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 Addl. Secy., to the Govt. of India Vs. Alka Subhash Gadia and Sayed Taher Bawamiya Vs. Jt. Secy., to the Govt. of India, we hold that the order made by the High Court is bad in law and deserves to be set aside. No doubt, the Court also observed that the detention order being made as early as on 09.06.1998 and had not been implemented, it was necessary for the Authorities to consider whether detention is still neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo cases, it was stated to be in the facts of the cases. It is thereafter that in Rajinder Arora Vs. Union of India and Others, (2006) 4 SCC 796 a Bench of two Judges dealing with a pre-execution challenge, apparently did refer to Gadia, Suneja and Naresh Kumar Goyal, which we have referred to earlier. Thereafter, the Court proceeded to find that grounds 3 and 4 in Gadia s case were attracted. As far as Deepak Bajaj Vs. State of Maharashtra and Another, (2008) 16 SCC 14 is concerned, it was rendered by a Bench of two Judges. No doubt, it has proceeded to hold that the five grounds mentioned in Gadia s case were only illustrative and not exhaustive. To that extent, we are of the view that it is the law laid down by a Bench of three Judges and Bench of two Judges to the effect that the grounds for a pre-execution challenge are exhaustively laid down in Gadia s case which must hold the field and, therefore, be treated as the law under Article 141. This conclusion of ours, is supported by a Constitution Bench decision of the Apex Court in Union of India and Another Vs. Raghubir Singh (Dead) by Lrs. Others, (1989) 2 SCC 754 which has been elaboratedly considered and dealt with by a rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo Judges of this Court in Jit Ram Shiv Kumar Vs. State of Haryana, 1981 (1) SCC 11 had differed from the view taken by an earlier Division Bench of two Judges in Motilal Paampat Sugar Mills Vs. State of U.P., 1979 (2) SCC 409 on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference, was made to the well accepted and desirable practice of the later bench referring the case to a Larger Bench when the learned Judges found that the situation called for such reference. 28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of this Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible. Appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued in the name of the petitioner. It was issued from Dubai on 20.07.1992. We notice that the date of birth is shown as 28.07.1961. Thereafter, Ext. R4(11) passport is issued in the name of one Abey John. The passport number is T389522. It was issued on 20.10.1994 from Bombay. Ext. R4(11) also would appear to show that it was extended by-issue of a fresh booklet. Thereafter, Ext. R4(10) is again a passport issued in the name of Abey John bearing No. Z1259046. It was issued from Dubai and it was issued on 04.10.2000 and the date of expiry is shown as 19.10.2004. Ext. R4(13) is an e-mail message dated 27.01.2011 wherein it was requested that a Look Out Circular (LOC) may be opened against the petitioner, wanted in connection with FIR No. 673500 dated 13.04.2000 under the Act. It was specifically stated that the subject may also be using another passport in the name of Abey John. 24. We are of the view that no person who challenges the detention order at the pre-execution stage, has a legal right as held by the Constitution Bench in Gadia s case. It is a discretionary remedy. We have already held that the petitioner cannot claim the benefit of Ground No. (v) in Gadia s case, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executing the order, we may notice that while it may be true that the respondents have not filed pleadings with the particulars of the steps taken with the full details, it appears to us that this is a clear case where the petitioner was absconding. No doubt, learned senior counsel for the petitioner would, in fact, point out that in the Counter-Affidavits of respondents 1 and 2 and also the fourth respondent, it is stated that even while assuming that the order of detention had no proximate live link with an offence committed by the petitioner, the sponsoring authority, do now have ample data to indicate that the petitioner was involving himself in prejudicial activities while absconding himself to avoid detention under the order which is challenged in the petition. However, we notice that the additional fourth respondent has indeed made available materials which tends to indicate that the petitioner was both absconding and also that after the order of detention, indulged in activities which are considered undesirable under the Act. It is most pertinent to note that the petitioner in the reply affidavit has set up a definite case that after 1993, he has not travelled overseas, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made available, with reference to which we could have considered the matter. Therefore, we do not think that in this Writ Petition the petitioner can seek relief on the said ground. 26. As far as the judgment of the Apex Court in Rekha Vs. State of T. Nadu Tr. Sec, to Govt. and Another, JT 2011 (4) SC 392 is concerned, it was a challenge after detention was effected and, no doubt, therein the Court laid down that the detention may not be resorted to, when the ordinary law of the land can take care of such a situation. An order of preventive detention is passed in a jurisdiction of suspicion and is essentially a prognosis of likely future conduct based on antecedents of a person. Particularly, in a pre-execution challenge, it may not be open to us to interfere with the order on the ground that the ordinary law of the land could take care of the situation. As on the date of the order of detention, there were indeed four cases, of which in respect of two, adjudications were completed. It may not be open to us to hold that on the basis of the subsequent exoneration in three out of the four cases that there was no basis to pass the order of detention and the matter must be viewe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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