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Tejinder Singh Makkar Versus State of Punjab and others.

2008 (2) TMI 923 - PUNJAB AND HARYANA HIGH COURT

Crl.Writ Petition No. 912 of 2007 - Dated:- 13-2-2008 - HON'BLE MR.JUSTICE MAHESH GROVER For the Appellant : Shri Vikram Chaudhri, Advocate with Shri Sandeep Wadhawan, Advocate. For the Respondent : Shri I.P.S.Sidhu, Senior Deputy Advocate General, Shri P.S.Thiara, Advocate. JUDGEMENT Mahesh Grover,J. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed that a writ in the nature of Habeas Corpus be issued for setting aside order of detention bearin .....

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non-service thereof. Brief facts:- In the year 2000, the Directorate of Revenue Intelligence, Ahmedabad Zonal Unit, Ahmedabad (hereinafter described as the D.R.I.') started investigations into duty evasion by various 100% Export-Oriented Units (EOUs) by indulging in clandestine removal of duty free imported and indigenous raw materials without payment of duty. These EOUs were under an obligation to manufacture finished products and export/ deemed export the same as per provisions of the Exi .....

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them. On 4.12.2000, one Shri Roopchand Jain of Mumbai made statement, Annexure P1, before the Senior Intelligence Officer of the D.R.I. disclosing the involvement of the petitioner in the aforementioned illegal activities. He also made another statement, Annexure P2, on 5.12.2000, inter alia, bringing out the role of the petitioner in supplying such Forged Advance Licences/ AROs on commission basis. He also stated that all such transactions were only on paper and apparently no goods were being .....

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. then issued an advance 15 days' notice to the petitioner on the same day proposing to arrest him. He sought interim protection from this Court and was directed to join the investigation. It appears that in or around 2002, respondent no.3 opened File No. SB/III/PSA/1102/02 to consider the preventive detention of the petitioner under the Act on receipt of proposal from the D.R.I. On 29.9.2003, a show cause noticed was issued by the D.R.I. to the petitioner in respect of an EOU, namely, S.A. .....

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ce to the aforesaid order, the petitioner was asked to appear before the authority concerned. Representations for revocation of that order submitted on behalf of the petitioner, his relatives and friends were rejected. Apprehending the execution of the order of detention, the petitioner has filed the present petition alleging that the same is beyond the scope of Section 3(1) of the Act; that it has been passed belatedly and that it is not based on relevant considerations. Reply on behalf of resp .....

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resident of Ludhiana and State of Punjab. In their written statement, respondent nos. 2 and 3 have taken up preliminary objections that the instant petition is not maintainable in this Court as all the cause of action has arisen in the State of Gujarat or Maharasthra and that the petitioner has wrongly given the address of the State of Punjab and actually, he is resident of Mumbai; that since the petitioner has not surrendered, the petition for habeas corpus does not lie and that there was no d .....

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se duties without which the other 100% EOUs could not have indulged into the evasion of the appropriate duties to be paid to the government exchequer which is running into crores of rupees. Learned counsel for the the petitioner has assailed the order of detention, which is sought to be executed against the petitioner, on the following grounds:- (i) that there was an inordinate delay in passing the same; (ii) that there is non-application of mind; (iii) that the same is beyond the scope of the A .....

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re-execution stage is not maintainable. I have heard the learned counsel for the parties and have perused the record. It would be appropriate to decide the question of jurisdiction in the first instance as it strikes the very heart of the matter. Section 4 of the Act, which deals with the jurisdictional aspect, reads as under:- 4. Execution of detention orders.- A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code o .....

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at the petitioner is a resident of Ludhiana in the State of Punjab. In view of the above, the order of detention, if upheld, will be sought to be executed within the jurisdiction of this Court. In D.N.Anand Versus Union of India, Ministry of Finance, 1993(2) R.C.R.(Crl.) 104, this Court observed as under:- Some effort was made by the learned counsel for the Union of India that the petitioner was a resident of Delhi and not of Ambala as claimed by him and as such no cause of action arose to him w .....

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ies had thus, gone after the petitioner both at his Delhi address as well as at his Ambala address. It cannot, thus, be gainfully said that no cause of action arose to the petitioner within the jurisdiction of this Court. This contention of the learned counsel is refuted. In Tirlok Nath Mittal Versus Union of India, 1994(1) R.C.R. (Crl.) 247, a learned Single Judge of this Court held as under:- In the instant case the petitioner contended that he had shifted his business to Ludhiana and had ente .....

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petitioner was annexure P-5. The respondents had taken issuing, summons to the petitioner at his Ludhiana address, copy of which was annexure P-11. He also received summons for his appearance for 6.7.1992 and then on 9.4.1992 issued by the Customs Collectorate, at Ludhiana address only. The impugned order annexure P-15 was also sent on the residential address of the petitioner at Ludhiana. In these circumstance, the present petition under Article 226 of the Constitution of India, for quashing t .....

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and am of the opinion that this High Court has the jurisdiction to entertain this petition. Mere residence of a person at a particular place perhaps may not furnish a cause of action but if the alleged detenu or his close relations has the apprehension that the order of detention is likely to be served upon him for the purpose of execution, certainly, the court in whose jurisdiction this order is to be executed will have the jurisdiction. It is the case of the U.O.I. itself that they raided the .....

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The High Court should be slow to assume jurisdiction over the matter on which a sister court can with more efficacy, promptitude and exactitude hold an enquiry and grant relief. It would, therefore, be the High Court in the State which passed detention order which could grant adequate relief to the proposed detenu as that Court has the necessary equipment and all the means to expand and inquire into the subject. In this view of the matter the order of detention is not liable to be quashed by the .....

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g an order elsewhere in the country, will have to forego his liberty and right to approach the Court for a threatened violation except at the Court which has jurisdiction over the authority passing such an order. I am afraid, this interpretation can never be granted. A person, whose fundamental right to life and liberty is threatened, has every right to approach the Court where any such authority, in the garb of an order of detention, seeks to curtail such life and liberty. Therefore, the conten .....

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Lordships held as under:- As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there .....

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d certain selfrestraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These selfimposed restraints are not confined to the review of the orders passed under detention law only. They extent 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 .....

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alt 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 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 .....

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ases 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 vagu .....

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made in the present petition can be answered in favour of the petitioner or not. The petitioner has made the following prayer:- It is, therefore, respectfully prayed that the present petition may kindly be allowed and the order of detention bearing F.No.SBIII/PSA/1102/02 dated 05.03.2004 passed by respondent no.3, Detaining Authority -cum- Principal Secretary to the Government of Gujarat, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 .....

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tayed in the interest of justice, equity and fair play. The petitioner has not placed on record order dated 5.3.2004, the quashing of which he ha sprayed for. The only reference to this order finds mention in Annexure P16 which is an order passed by the competent authority while apparently exercising its powers under Section 7 of the Act, which reads as under:- 7. Powers in relation to absconding persons.- (1) If the appropriate Government has reason to believe that a person in respect of whom a .....

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ing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which r .....

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