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ASHOK SADARANGANI Versus STATE OF PUNJAB & OTHERS

2014 (3) TMI 1096 - PUNJAB AND HARYANA HIGH COURT

Writ of habeas corpus - Detention order - Jurisdiction of Court to entertain the appeal - proceedings under COFEPOSA - detenu was absconding and evading detention - Held that - Since the detention order stands executed as of now, there cannot, therefore, exit any bar in considering the merits of the grounds of challenge urged by the detenu. The final consideration of the grounds urged is only after execution of the detention order as prayed by the Detaining Authority. The respondents could not s .....

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order. - Territorial jurisdiction - Held that: - merely because respondents No.5 & 6 have 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 .....

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eld 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 Authority was in fact granted ample opportunity and it could have filed a proper affidavit in a responsible manner dealing with the case on merits as well. However, the Detaining Authority chose not to file any .....

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OR, ADVOCATE FOR THE RESPONDENT JUDGEMENT M. JEYAPAUL, J. 1. Petitioner Ashok Sadarangani, father of Nitesh Sadarangani has filed the present criminal writ petition praying for issuance of an appropriate order quashing the impugned order of detention bearing No.PSA1200/85/SPL3(A) dated 12.3.2001 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (for short 'COFEPOSA') by the 5th and 6th respondents against Nitesh Sadarangani (hereinaft .....

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h Sadarangani. ii) On 12.10.2000, the detenu and one Amrut Solanki were arrested under Section 104 of the Customs Act, 1962 and were produced before the Magistrate on 13.10.2000. Bail application was allowed. However, the bail order was stayed on the request of the Department. Vide order dated 25.10.2000, bail granted to the detenu was cancelled by the Bombay High Court. iii) On 9.11.2000, the detenu was enlarged on bail by the Sessions Court. iv) On 12.3.2001, the impugned detention order was i .....

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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 201 .....

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petitions were dismissed alongwith a batch of other pre-execution petitions of various proposed detenues vide detailed common judgement dated 16.7.2013, which was extensively referred to by both the sides. vii) The Authorities were thus required to detain the detenu herein and to serve the detention order alongwith the grounds as per the observations contained in the said judgement dated 16.7.2013. viii) Even after the said judgement dated 16.7.2013, no effort was made to serve the detention or .....

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tion and thus, an order to proceed with the application sans Say (reply) was passed on 20.7.2013 and the applicant was held entitled to retain his passport. Thereafter, the detenu applied before the learned Magistrate concerned seeking permission to travel abroad. Notice of the said application was undisputedly served in the office of the Sponsoring Authority. Learned Magistrate heard the advocates for the detenu as well as the Sponsoring Authority and vide order dated 13.8.2013 was pleased to g .....

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ese orders which were passed in favour of the detenu after judgement dated 16.7.2013 passed by the Hon'ble Supreme Court. There was no coordination between the Sponsoring Authority, Detaining Authority and the Executing Authority. 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 or .....

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entations 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 annexed as Annexure P-11 and for passing any other order for securing the liber .....

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territorial jurisdiction of this Court. Copies of lease deed dated 9.1.2014 evidencing taking on lease a flat at Gurgaon, ticket dated 22.1.2014 of the detenu evidencing his travel proposal from Doha to Amritsar by Flight QR1071 on 27.1.2014 were annexed with the petition. It was also urged that burden to show that detention of a citizen is or would be in accordance with the procedure established by law has always been placed by the Courts on the public authorities because Article 21 of the Cons .....

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ondent No.5 sought time to file reply and hence the matter was posted for 24.2.2014, on which date again a short adjournment was granted and the matter was posted for 28.2.2014 and then for 5.3.2014. Mr. H.S.Deol, learned Advocate who had earlier filed memo of appearance alongwith Mr.Mansur Ali, learned Advocate, submitted that he had no instructions from respondents No.5 & 6 and as a consequence none appeared on their behalf. The matter was thus finally posted for 12.3.2014. Learned Sr.Advo .....

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tion 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 .....

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e fixed date to facilitate service of the detention order upon him. Accordingly, on 21.3.2014, the detenu again presented himself and the impugned detention order dated 12.3.2001 alongwith grounds and documents were then served upon him. 6. The detenu was compelled by this Court in terms of para 6 of the counter affidavit dated 10.3.2014 to surrender to the impugned detention order and service thereof was effected on the detenu. Thereafter, the petition was taken up for final hearing on merits. .....

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ame petition could be heard as a post-execution petition and considered accordingly and invited my attention, inter alia, to prayer clause (iv) to pass appropriate orders for securing personal liberty of the detenu. 8. Arguments submitted elaborately on both sides were heard. 9. Learned Sr.counsel appearing for the petitioner at the outset took me through the observations and findings contained in the detailed judgement dated 16.7.2013 of the Hon'ble Supreme Court. Learned counsel appearing .....

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ffect that unexecuted detention order cannot be quashed merely because the execution of the detention order was pending for several years on which the Authorities had no control, as the proposed detenu had been absconding or evading the execution of the order. It was further held therein that the detention order will have to be served alongwith the grounds and the materials relied upon leaving it upon the respective proposed detenu to challenge the correctness of the order. It was also observed .....

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ge 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 ord .....

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u seeking deletion of condition to surrender his passport in a case under the Customs Act, wherein it was also recorded that inspite of ample opportunities, the officer of Customs Department had failed to file his report/Say to the application and an order to proceed with the application sans Say was passed on 20.7.2013. It was further held that the applicant was entitled to retain his passport. iv) Thereafter the detenu applied before the learned Judicial Magistrate concerned seeking permission .....

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as well as the officer of the Sponsoring Authority (Investigating Officer) with their respective Advocates. v) The Sponsoring Authority or the Detaining Authority did not even challenge these orders which were passed in favour of the detenu after judgement dated 16.7.2013 of the Hon'ble Supreme Court. vi) Thus, even after said judgement dated 16.7.2013, the detenu was neither detained despite his appearance in Court seeking permission to go abroad nor was any effort made thereafter to preven .....

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g 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 th .....

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oach 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 petition is concerned, he could not justify the inaction and callousness of the Authorities in not serving the detention order upon the detenu even when he was present in Court on 13.8.2013. He further submitted that merits of the detention order were earlier considered by the Hon'ble Supreme Court and the petiti .....

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th. I have also carefully perused the records placed before me. I find that the following issues are to be determined:- i) Whether there exists any bar in considering the grounds of challenge urged by the petitioner in the light of dismissal of his earlier petition by the Hon'ble Bombay High Court as well by Hon'ble Supreme Court. ii) Whether no part of cause of action has arisen within the jurisdiction of this Court to consider the challenge to the impugned detention order. iii) Whether .....

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o any of the above issues. The findings in the earlier rejection by the Hon'ble Supreme Court were in fact in the context of examining the challenge to the detention order at pre-execution stage. Since the detention order stands executed as of now, there cannot, therefore, exit any bar in considering the merits of the grounds of challenge urged by the detenu. The final consideration of the grounds urged is only after execution of the detention order as prayed by the Detaining Authority. The .....

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ng 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 no .....

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detention order and grounds were served upon him in this Court, albeit that after the orders of this Court. The petitioner was thus detained in the jurisdiction of this Court. Therefore, I hold that merely because respondents No.5 & 6 have 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 detent .....

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Court. 16. In Umed Mal vs. Union of India, 1998 CRI.L.J. 3465 it has been held by the Full Bench of Rajasthan High Court that: "21. Applying the above tests, we cannot escape the conclusion that factual detention of a person at a particular place would supply cause of action for challenging the detention. ....... If detention has to retain its preventive character and is not to be allowed to become punitive in practice, if not in law, we have to reject the narrow construction put on the con .....

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ore hold that in this case, because of the service and execution of the detention order within the territories of the State of Rajasthan, this Court will have territorial jurisdiction 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, suffic .....

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y 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 Kerala and he was detained in the prison at Trivandrum in the State of Kerala. According to us, these are essential .....

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Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating- 'the ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu. His liberty was deprived in the same place and the grounds of detention was also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the petitioner is concerned and, therefore, a c .....

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into consideration the provision of Article 226(1A) read with provision of Article 19, Clauses (d) and (e) for the purpose of coming at conclusion that in relation to deprivation of liberty of the detenu having taken place within the territorial jurisdiction of the said Court, a part of cause of action was held to have arisen within the said jurisdiction. 24. Having regard to the fact that in the instant case the detenu is still detained in Siliguri Special Jail which is within the jurisdiction .....

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jection 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 .....

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isdiction his personal liberty is sought to be infringed, for necessary reliefs." 23. In D.N.Anand vs. Union of India, Ministry of Finance,1993(2) RCR(Criminal) 104, this Court having considered the fact that one of the residential addresses of the detenu although disputed by the Detaining Authority was within the jurisdiction of this Court held that the petition challenging the detention order issued in Delhi was maintainable. It has been observed therein in paragraph 15 as under:- "1 .....

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sits. Even in the detention order Annexure P-1, the petitioner has been described with his two addresses one is 7/4, Roop Nagar, Delhi and the second is 66, Mall Road, Ambala Cantt. The authorities 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." 24. In S.P.Goyal vs. Union .....

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ould certainly have the jurisdiction to entertain and decide the present writ petition." 25. In the case of Tejinder Singh Makkar vs. State of Punjab and others, CRWP No.912 of 2007 dated 13.2.2008, this Court relying upon Section 4 of the COFEPOSA Act, 1974 and the judgements in D.N.Anand's case (supra), Tirlok Nath Mittal vs. Union of India, 1994(1) RCR (Criminal) 247 and Mrs. Arvind Shergill vs. Union of India, 1999(4) RCR (Criminal) 781 observed as follows:- "Moreover, if the c .....

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ht 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 a .....

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se within the jurisdiction of that High Court and secondly and more importantly, it was in fact a second petition filed on the same set of facts which was barred under Rule 7 of the Allahabad High Court Rules, 1952. Thus, the said judgement is not applicable to the facts of the instant case. Therefore, the objections regarding lack of cause of action within the territorial jurisdiction of this Court stands rejected. 27. The Hon'ble Delhi High Court (DB) in Charan Singh vs. Union of India, LP .....

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2008 filed there against by the Union of India was heard and dismissed by the Hon'ble Supreme Court vide order dated 28.7.2008. 28. Moreover, when this Court declined to set aside the detention order before its execution and directed the detenu to surrender, the petitioner could have preferred a fresh petition or could have sought consideration of the instant petition, but after the surrender of the detenu. Since the petitioner chose to latter option, this Court was obliged to consider the m .....

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me 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 .....

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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 Court observed as follows:- "5. So far as the second point urged by the counsel viz. that there is no independent consideration of the representation by the detaining authority is concerned, we must mention that this point was not raised in the petition nor urged before the High Court. It is not even rai .....

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point." Thus, neither the technical objections nor alleged imperfect pleadings can deter the Court from considering a challenge to a preventive detention matter, that too, when the detention order stands executed. 32. I find that even after the said judgement dated 16.7.2013 of the Hon'ble Supreme Court, no effort was made to serve the order of detention on the detenu. Neither the Sponsoring Authority nor the Detaining Authority even sought cancellation of bail granted to the detenu. I .....

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with the application sans Say was passed on 20.7.2013. It was further held therein that the applicant was entitled to retain his passport. The absolute casualness, however, does not cease with this. Thereafter the detenu applied before the learned Judicial Magistrate concerned seeking permission to travel abroad. Notice in that application was undisputably served in the office of the Sponsoring Authority and learned Judicial Magistrate heard the learned Advocates for the detenu as well as for th .....

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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 als .....

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ions dated 8.11.2006 also refer to earlier Circular No.671/6/2001-Cus.VIII dated 12.7.2001 and Circular F.No.686/316/2001- Cus.VIII dated 25.8.2005. These Instructions also refer to a case where a COFEPOSA absconder appeared before the Court wherein the officers of the prosecution cell of the Sponsoring Authority were present, but he was not apprehended. To avoid this mistake, various measures were suggested in the said Instructions. 34. In A.Mohammed Farook vs. Jt. Secy. To G.O.I. and others, ( .....

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were really sincere and anxious to serve the order of detention without any delay, it was expected of them to approach High Court or at least the Court which initially granted bail for its cancellation. However, in the said case, no steps for cancellation of bail were taken after taking action under Section 7 of the COFEPOSA and the Authorities also did not bring to the notice of the Court about the order of detention passed against the detenu. Having held therein that no sincere and earnest eff .....

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nt enough to immediately challenge these orders passed in favour of the detenu after the judgement dated 16.7.2013 of the Hon'ble Supreme Court to prevent him from going abroad and 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 o .....

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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 stay on execution of the detention order. This proved absolute casualness vitiates the impugned detention order. It is a s .....

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ough for the sake of convenience these are the separate branches, however, for a detention purpose they are one and the same and they cannot pass on the responsibility to the other. They are all under the obligation to see that the law laid down by this court and the Apex Court is properly followed. We hope that all these authorities will take a note of these observations and will develop a procedure which will coordinate three branches, namely, Sponsoring Authority, DRI, Detaining Authority-PCB .....

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of the Sponsoring Authority concerning initiation of prosecution. In the instant case, offence under Customs Act, 1962 is referred, however, requisite satisfaction on the vital aspect concerning prosecution of the detenu in this case is not reflected from the grounds of detention. The Detaining Authority was thus not alive to the actual fact as to whether prosecution proceedings were initiated or were likely to be initiated against the petitioner in the offence alleged against him. The reliance .....

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utive 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 .....

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e subjective satisfaction and I find that detention order, therefore, suffers even on this count as well. 42. Further, I also find that affidavit dated 10.3.2014 affirmed by Smt.Medha Gadgil, Addl.Chief Secretary (Appeals & Security) is without any sense of responsibility and requisite care expected in a preventive detention matter. On solemn affirmation she has stated; "1) ..... In exercise of the said power, as the Detaining Authority after considering the case of the detenu, I have i .....

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. If the affidavit is to be believed, on this sole ground alone, the detention order would be patently illegal. In any event, such affidavit further fortifies absolute casualness in the matter of preventive detention which is fatal to the order of detention. 43. It is a matter of fact that the Detaining Authority has not alleged any further indulgence of the detenu in any prejudicial activity after the issuance of the impugned detention order on 12.3.2001. 44. On the allegation made on behalf of .....

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tigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court have taken. ....... ....15. In this case, admittedly the appellant has withdrawn the suit two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only .....

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e 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 meri .....

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oner has clearly shown in the memo of parties the address of the detenu at Gurgaon as well as at Pune. Similarly, non-disclosure of the first petition before the Hon'ble Supreme Court which was simply dismissed as withdrawn with liberty to approach the High Court is also not a material fact when the detenu has clearly admitted that his pre-execution challenge was rejected by Bombay High Court as well as the Hon'ble Supreme Court and the detailed final judgement dated 16.7.2013 passed by .....

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tion in the counter affidavit filed by it. 46. While setting aside the impugned detention order, I find it necessary to quote the following extract from the judgement of the Constitution Bench in Kamlesh Kumar Ishwardas Patel vs. Union of India, (1995) 4 SCC 51: "49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a lar .....

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specially 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 safeguard .....

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