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Tejinder Singh Makkar Versus State of Punjab and others.

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

Maintainability of petition - Jurisdiction - the order of detention is shown to have been passed at Gandhinagar (Gujarat). However, the petitioner has come up with a plea that it is being sought to be executed at Ludhiana, where he is residing - Held that: - 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 - the contention that this Cour .....

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ocate. 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 bearing F. No. SBIII/PSA/ 1102/02 dated 5.3.2004 passed against him by the Detaining Authority -cum- Principal Secretary to the Government of Gujarat, Gandhinagar (respondent no.3) under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities .....

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landestine 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 Exim Policy and Handbook of Procedure read with the provisions of the Customs Act,1962 (hereinafter described as the 1962 Act') and the Central Excise Act,1944. To show fulfillment of export obligation, these EOUs utlized forged Advanced Licences/ AROs issued in favour of .....

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.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 cleared by the EOUs against this paper transaction of AROs/ Advanced Licences. On 4.1.2001, a statement (Annexure P4) of Hastimal Jeevraj Jain, resident of Mumbai was also recorded in which he stated that he was introduced by Shri Roopchand Jain with the petitioner for doi .....

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02/02 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. & Company in which a penalty was proposed to be imposed upon him under Section 112 of the 1962 Act read with Rule 209-A of the Central Excise Rules,1944 and on the next day, i.e. on 30.9.2003 he was arrested and produced before the Court of Additional Chief Metropolita .....

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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 respondent nos. 4 and 5 has been filed by way of affidavit of Shri Jatinder Singh Khaira, Deputy Superintendent of Police (Detective), Ludhiana. It has been averred that the present petition is not maintainable qua the answering respondents as the detention order has been pass .....

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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 delay in passing the impugned order. Details of the correspondence/ facts have been mentioned in para 6 of the preliminary objections. On merits, respondent nos. 2 and 3 have averred that the petitioner has, in fact, indulged in illegal activities and caused loss to the rev .....

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s 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 Act; (iv) that it has been made on vague and extraneous considerations; and (v) that it is discriminatory as it has not been passed against similarly situated persons. On the other hand, learned counsel for respondent nos. 2 and 3 tried to justify the order of detention and .....

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h 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 of Criminal Procedure,1973 (2 of 1974). An analysis of the above extracted provision of law shows that an order can be executed at any place within the country and that Sections 72 to 81 of the Cr.P.C. are attracted for that purpose. Admittedly, the order of detention is sh .....

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04, 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 within the jurisdiction of this Court. A reference to the pleadings in paras 7 of - the return will show that summons were sent to the petitioner at his Ambala address which were stated to have been received back with the postal remarks that the addressee was not available .....

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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 entered into a partnership with one Rakesh Kumar of Ludhiana, after executing a deed to that effect on 17.2.1991 copy of which was annexure P-9. He had also taken residential accommodation on rent which was situated in Dev Nagar, Ludhiana City. He moved a petition for his pre- .....

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a 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 the impugned order was rightly filed in the court. When the respondents have been sending summons to the petitioner at his Ludhiana address, it cannot be said that no cause of action arose to the petitioner within the jurisdiction of this Court and the contention of the lea .....

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tention 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 house of the husband of the petitioner at Jalandhar and Chandigarh, therefore, this court will have the jurisdiction to entertain this petition. The case law relied upon by the counsel for the respondents is not applicable to the facts in hand. In Manjit Singh Dhingra' .....

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ant 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 High Court.' 15. Here is a case where the detention order has been passed by the Central Govt., which has the jurisdiction over the entire country, the Central Govt. itself wanted to execute the order in the State of Punjab when its officers searched the premises of t .....

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son, 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 contention that this Court has no jurisdiction to entertain this petition is negated. In so far as the contention of the learned counsel for respondent nos. 2 and 3 that the writ petition is not maintainable at the pre-execution stage, is concerned, the same is also without any .....

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der 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 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 detenti .....

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assed 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 courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction und .....

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straints 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 is it made will be frustrated since such orders are in operation only for a limited period. Thirdly .....

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pugned 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 prior to their execution on any other ground does .....

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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 against the petitioner, be quashed and set aside, as the order so passed is illegal, unconstitutional and based on extraneous, irrelevant and vague grounds. It is further prayed that any other order or direction, which this Hon'ble Court may deem fit in the facts and c .....

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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 detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government may- (a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where t .....

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y 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 rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both. (2) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), every offence under .....

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