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2014 (3) TMI 1096

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..... ve doubts on the bona fides of the petitioner in taking a leased residential premises within the jurisdiction of this Court, it cannot be held that no part of cause of action has arisen in the jurisdiction of this Court to consider the challenge to the detention order even after its execution in the jurisdiction of this Court. Although certain judgements were cited by the respondents, however, they could not show any precedent where jurisdiction was held as lacking despite such part of cause of action arising in the jurisdiction of the High Court. Moreover, there is a long line of decisions rendered by various High Courts substantiating that these facts would constitute part of cause of action that has arisen in the territorial jurisdiction of this Court - the detenu is still detained in Siliguri Special Jail which is within the jurisdiction of this Court and in the event the said detention is held to be illegal, a writ of habeas corpus may have to be issued; pursuant whereto, the detenu may be released, we are of the opinion, that a part of the cause of action has arisen within the jurisdiction of this Court and as such the writ application is maintainable. The Detaining Author .....

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..... aforesaid past conduct with a view to preventing him from smuggling of goods in future. There is no dispute on the fact that till then neither any criminal complaint under Section 135 of the Customs Act, 1962 was filed against the detenu nor was any criminal prosecution sanctioned against him under Section 137 of the Customs Act, 1962. v) On 6.9.2001, action under Section 7 of the COFEPOSA was taken against the detenu and on 28.9.2001, proclamation was issued by the Chief Metropolitan Magistrate. However, the detenu was absconding and evading detention. vi) Vide order dated 11.9.2008, at the pre-execution stage, the petitioner was granted liberty by the Hon'ble Supreme Court to challenge the detention order before the High Court, while dismissing his Writ Petition (Crl.) No.95 of 2008. Therefore, a Criminal Writ Petition 1645 of 2010 was filed before the Bombay High Court challenging the impugned detention order dated 12.3.2001 in which, though, initially vide order dated 17.6.2010, execution of the impugned detention order was stayed by the Bombay High Court, however, vide judgement dated 5.1.2011, the petition was finally dismissed by Bombay High Court. An SLP(Crl.) No. .....

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..... xi) Thus, even after the said judgement dated 16.7.2013, the detenu was neither detained despite his presence in Court seeking permission to go abroad nor was any effort made thereafter to prevent him from going abroad or to serve upon him the impugned detention order. He was thus permitted to go abroad despite the pendency of the detention order against him which was required to be served upon the detenu even in terms of the judgement dated 16.7.2013. xiii) Representations dated 15.10.2013, 26.11.2013 and 21.1.2014 were made by the detenu from his Pune address after the judgement dated 16.7.2013, which were rejected by the Authorities. There is no reference to any of these representations in the instant petition. However, neither the fate of these representations nor the manner of their consideration is impugned in the instant petition. xiii) Thereafter, the instant writ petition was filed by the petitioner in this Court praying for quashing and setting aside of the impugned detention order dated 12.3.2001 which was yet to be executed; for staying the same in the meantime; for seeking direction to the State of Maharashtra to forthwith consider a fresh representation anne .....

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..... rence to the Prayers of petition, the petition may be dismissed on the ground of jurisdiction and stay may be vacated and after execution of detention order, the writ petition may be decided on merit. 5. Considering the above prayer, the petitioner (Sic detenu) was thus directed to be present in Court on 20.3.2014 at 10.00 a.m. and it was directed that representative of the Detaining Authority shall be present in the Court on that day alongwith the order of detention, grounds of detention and the documents/reconstructed documents for service on the petitioner (Sic detenu) on 20.3.2014. The detenu as well as the petitioner were present in the Court. A day's time was sought by learned Sr.Counsel appearing for respondents No.5 6 for serving of detention order alongwith grounds and documents upon the detenu by the Detaining Authority/Executing Authority. On behalf of the Detaining Authority, it was pointed out that since inadvertently the petitioner and not the detenu was directed to be present on 20.3.2014, the officer of Executing Authority with the documents to be served was not present. Thus, the detenu was directed to again appear on the fixed date to facilitate service .....

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..... proposed detenu to challenge the correctness of the order. It was also observed in paragraph 18 and 20 of the judgement delivered by Hon'ble Justice Gyan Sudha Misra that Court or the appropriate Authority will have to consider as to what have been the activities of the detenu after the order of detention was passed and that these subsequent events or conduct would be a matter for consideration after the service of the grounds. It was further held that the order of detention was not fit to be quashed, but fit to be served on the detenu leaving it open for him to challenge it thereafter by taking recourse to the remedies available to him under the law. Hon'ble Justice J.Chelameswar in his separate judgement was pleased to hold that if proceedings under 7 of the COFEPOSA are initiated consequent upon the abscondance of the proposed detenu, the challenge to the detention order on live nexus theory is impermissible. By relying on these observations, it was submitted that the Authorities were thus required to detain the detenu herein and serve the detention order alongwith the grounds as per the observations contained in the judgement dated 16.7.2013. 11. Learned Sr.counsel a .....

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..... ppearing for the petitioner submitted a compilation of precedents and also relied upon Instructions dated 8.11. 2006 issued by the Joint Secretary, COFEPOSA, New Delhi to demonstrate ample casualness exhibited by the Authorities concerned in the matter. He also submitted that the detention order was also vitiated for non-consideration of the possibility of recourse to ordinary law of land in the grounds of detention before resorting to the draconian preventive detention matter. ix) He submitted that the burden lies on the Detaining Authority to justify and to show validity of the detention order. He also highlighted the fact that the detenu has not come to adverse notice of the Department for indulging in any prejudicial smuggling activity since issuance of detention order on 12.3.2001. 12. On behalf of the respondents, learned Sr.counsel argued that the petitioner has concealed proclamation orders, an order dated 11.9.2008 of the Hon'ble Supreme Court in which liberty was granted to approach the High Court challenging the detention order and various representations made from Pune address and their rejections. However, so far as the merit of the grounds urged in the petit .....

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..... e refused to consider the challenge of a detenu in a habeas corpus petition after execution of the detention order, merely because challenge was unsuccessful at pre- execution stage. Even otherwise, the main ground of absolute casualness even after judgement dated 16.7.2013 was not raised earlier by the detenu. This Court cannot permit the Authorities to take shelter under such technical pleas in a writ petition filed challenging preventive detention order. 15. On the second issue concerning territorial jurisdiction, it is not disputed that the petitioner also has a residence in Gurgaon in the State of Haryana. Notice dated 26.2.2014 addressed to the detenu has been received at his residence at Gurgaon under Section 6(1) of the SAFEMA Act, 1976 requiring the detenu referred as the affected person on the basis of the impugned detention order issued under COFEPOSA to prove that the vehicle referred in the notice bearing Registration No.HR26-CE-2610 has been acquired out of legal source of income and to show cause as to why the said vehicle shall not be forfeited to the Central Government. It is not disputed that the detenu actually arrived from Doha at Amritsar Airport where he .....

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..... risdiction to entertain the petition ...... 17. In Ramchand Santumal Bhatia vs. Tarun Roy, 1988 CRI.L.J. 641, it has been held by the Bombay High Court that: 5. ....To sum up, Ulhasnagar being the place where the detenu was taken into custody and where she was served with the order and grounds of detention, suffice to attract the jurisdiction of this Court... 18. In Nazima Begum vs. Joint Secretary, 1993 CRI.L.J. 1336, it has been held by the Madras High Court that: 9. .....In the instant case, the effect of the order, namely, the detention order which is the subject matter of the writ petition, was served on the detenu only at Calcutta where he was detained and as such the Calcutta High Court alone has got jurisdiction. Even the order of rejection was served on the detenu at Calcutta and only a copy of the rejection order was served on by the petitioner (wife of the detenu) at Madras. 19. In Shareefa Ummer vs. Joint Secretary to the Govt. of India, 1998 CRI.L.J. 185, it has been held by the Division Bench of Kerala High Court that: 11. ....So far as the present case is concerned, the order of detention was served on the detenu in Kerala. He was arrested in .....

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..... h the writ application is maintainable. 21. In Reena Ranka vs. Union of India, 1991 CrI.L.J. 3195, it has been held by the Division Bench of Andhra Pradesh High Court that: 17. ..... and that the unjust rejection of the representation without assigning any reasons whatsoever and communicated to the petitioner at Hyderabad amounted to deprivation of a valuable right under Art.21 of the Constitution of India. This Court has, therefore, undoubted jurisdiction to entertain the Writ Petition as part of cause of action arose at Hyderabad. 22. In C.Natesan vs. State of T.N. And others, 1999 CriLJ 1382, it has been held by the Madras High Court that:- In cases of preventive detention, orders of detention are passed some times by an authority outside the State and it is executed within the State where the detenu is residing. Many a case on the validity of these detentions are challenged before this Court and this Court has always entertained those cases and disposed of them one way or the other. Therefore, when the personal liberty of a citizen is sought to be infringed pursuant to an order passed elsewhere, it is always open to the person concerned to move the Court within .....

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..... rgill vs. Union of India, 1999(4) RCR (Criminal) 781 observed as follows:- Moreover, if the contention of the learned counsel for respondents no.2 and 3 is accepted, then it implies that a person, whose life and liberty is threatened by passing 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 of 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. This petition, however, was dismissed on merits. But in LPA preferred there against reported in 2009(4) RCR (Criminal) 465, the detention order was quashed by the Division Bench of this Court and thus, territorial jurisdiction was also upheld. 26. In view of the above consistent views, I find no merit in the objections raised by the respondents. Learned Sr.coun .....

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..... ;ble Supreme Court held that in dealing with writ petitions of habeas corpus, mere technical objections raised by the Detaining Authority concerning pleadings cannot be entertained and observed thus: 18. ....... But, insofar as the question of technical plea which has been raised by the learned counsel on the question of prayer in the Habeas Corpus petition is concerned, we are constrained to observe that in dealing with writs of Habeas Corpus, such technical objections cannot be entertained by this Court. 30. Further in Smt.Ichhu Devi Choraria vs. Union of India and others, (1980) 4 SCC 531, the Hon'ble Supreme Court held in para 4 that in a writ of habeas corpus, strict rules of pleadings are not to be followed. It would be no argument for the detaining authority to say that a particular ground was not urged in the petition. The Court is bound to satisfy itself that all the safeuards provided by law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. 31. In Abdul Nasar Adam Ismail through Abdul Basheer Adam Ismail vs. State of Maharashtra and Ors., (2013) 4 SCC 435, the Hon'ble Supreme C .....

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..... for the period from 15.8.2013 to 1.11.2013 vide order dated 13.8.2013. Obviously, it was not brought by the Sponsoring Authority or the Detaining Authority to the notice of the Court that the detention order was required to be served upon the detenu. In fact roznama of the said Court proceedings on 13.8.2013 shows the presence of not only the detenu, but also the officer of Sponsoring Authority with their respective advocates. This roznama also records that learned Advocate for the Department (Sponsoring Authority) filed Say/reply to the said application. These judicial records are not in dispute. It appears that there is no coordination between the Sponsoring Authority and the Detaining Authority. In this undisputed factual position showing apparent laxity and casualness of the Authorities in the matter of preventive detention, I find no reason to uphold the detention order. My view is also fortified by the following precedents and authorities. 33. I have carefully considered the Instructions dated 8.11.2006 issued by the Joint Secretary, COFEPOSA, New Delhi addressed to all Sponsoring Authorities emphasizing the requirement to keep track of Court proceedings, if any, going on .....

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..... to detain him. No effort was made to seek cancellation of bail granted to him. I find that after the said judgement dated 16.7.2013 of the Hon'ble Supreme Court, firstly the detenu ought to have been detained forthwith on his presence in Court for seeking permission to go abroad and secondly, the Authorities ought to have made sincere efforts to prevent the detenu from going abroad or to serve upon him the impugned detention order at the first available opportunity. However, the detenu was permitted to go abroad despite the pendency of the impugned detention order against him. 37. The Sponsoring Authority as well as the Detaining Authority had failed to take requisite care that was required to sustain the preventive detention order to keep the petitioner in detention without any trial. I am unable to ignore that in the instant case despite the judgement dated 16.7.2013 of the Hon'ble Supreme Court, there was neither proper opposition by the Sponsoring Authority or the Detaining Authority to the prayer for grant of permission to travel abroad nor was any effort thereafter taken to serve the detention order when the detenu was leaving for abroad despite absence of any sta .....

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..... 40. In Ashutosh Lahiry vs. State of Delhi, AIR 1953 SC 451, Six Judges' Bench of Hon'ble Supreme Court observed thus: 11. .....There could be no public proof of 'mala fides' on the part of the Executive Authorities than a use of extraordinary provisions contained in the Act for the purposes for which ordinary law is quite sufficient..... 41. In Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244 and Munagala Yadamma vs. State of Andhra Pradesh and others (2012) 2 SCC 386, it was held by the Hon'ble Supreme Court that if the offences alleged are of a nature which can be dealt with under the ordinary law of the land, taking recourse to the preventive detention as a substitute for the ordinary punitive law would be contrary to the Constitutional guarantees enshrined in Article 19 21 of the Constitution of India. Therefore, it was necessary for the Detaining Authority to record its satisfaction regarding the actual status of the prosecution proceedings or its possibility under ordinary criminal law and then to arrive at a satisfaction as to why the same was not sufficient before resorting to drastic provisions of preventive detention. Lack of such an exercise v .....

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..... t two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court's reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the mater was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable. 16. As the issue of suppression was the only ground on which the High Court has rejected the appellant's plea for relief, we would ordinarily have set aside the order of the High Court in view of our finding and remanded back to the High Court for decision of the matter on merits. But the matter has been argued on merits before us and we are in a position to dispos .....

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..... le, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be jealously watched and enforced by the Court. Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission : May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralyse the India economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to t .....

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