TMI Blog1999 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... thority cannot be denied the right to file an appeal. The fact that the Union of India has not joined as appellant would not affect the right of the statutory authority in seeking redressal against the order by which it is aggrieved. The Union of India has been made party respondent and in our opinion, rightly so when it did not join as appellant. On behalf of the Union of India, representation has been made to the effect that it is supporting the stand of appellant herein. 3.Since the order under appeal is an interlocutory order, we after having heard the Learned Counsel at length, are of the view that the decision in the appeal should be confined only to the limited extent as to considering whether the Learned Single Judge was right in ordering stay of the operation of the impugned order of detention pending disposal of the writ petition. This is for the reason that the writ petition has been filed questioning the order of detention even before effect was given to the said order of detention i.e. at the pre-execution stage. The Learned Single Judge has, in the judgment under appeal, noted the contentions advanced on behalf of the respondent-writ petitioner assailing the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr. reported in 1991 (53) E.L.T. 481 (S.C.) = 1992 Supp. (1) SCC 496 whereby it was held as under : "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 prior to their execution on any other grounds does not amount to the abandonment of the said power or to their denial to the proposed detenue, but prevents their abuse and the perversion of the law in question". 8.The same view has been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in connection with D.R.I.F. No. 61/Cal/APP/98 of Directorate of Revenue Intelligence, has recorded certain very relevant facts. It would be appropriate to extract certain portions of the said judgement, which read as under : "Pursuant to an information received by the officers of Directorate of Revenue Intelligence, Calcutta, an investigation was initiated and it was being carried out with respect to the basic allegation that M/s. Associated Industries were engaged in illegal importation of (i) RBD. Palmolin Oil (ii) Mulberry Raw Silk (iii) HDPE (iv) Copper Cathode and evasion of customs duty and sale thereof running in crores of rupees. The accusation in the case was that More Group of Industries, while using forged advance licence had imported the aforesaid articles and had sold those to M/s. Associated Industries. It is alleged that the present petitioner, S.S. Sharma being the trusted agent of More Group and also being a partner of M/s. Associated Industries had active involvement in the deal. 13.Obviously, for the purpose of investigation/inquiry into the case, summons under Section 108 of the Customs Act were issued directing the petitioner to attend the office of DRI a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prayer by the impugned order dated 27-5-1998 passed in Criminal Misc. Case No. 210 of 1998. 15.The ground for refusal of bail by the Chief City Sessions Court, Calcutta had two folds, one being that the petitioner, by not reporting himself to the I.O., had violated the condition imposed on him at the time of granting anticipatory bail and, secondly because of the nature of the offence alleged being as such, that the petitioner was not entitled to in enlarged at the present state. 16.Counsel for the appellant very emphatically urged that there was no act of violation of the condition of the anticipatory bail on the part of the petitioner, inasmuch as, there was, in fact, no arrest made of the petitioner subsequent to grant of the anticipatory bail and, in that view of the matter, there was neither any necessity of his being enlarged on anticipatory bail or for abiding by the condition of the said bail to see the I.O. everyday in his office (as per terms of the anticipatory bail). In this regard, I am, however, of the considered opinion that the petitioner would be most certainly supposed to have availed the protection/privilege of the anticipatory bail inasmuch as, it was onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upholding the order of the Chief Judge, City Sessions Court, refusing bail is dated 5th June, 1998 whereas the order granting bail to the petitioner is dated 23rd June, 1998 in C.R.L. No. 1594 of 1998. 19.In the said order dated 23-6-1998, the case pleaded by the petitioner has been set out, which reads as under; "Apprehending his arrest the petitioner filed an application under section 438 of the Code of Criminal Procedure 1973 before the Learned Chief Judge Sessions Court and was registered as Criminal Misc. Case No. 176/98. After hearing the parties and perusing the papers placed by both the parties the Learned Judge allowed anticipatory bail on certain conditions for a period of ten days from 11-5-1998. A prayer was made on behalf of the Special P.O. to stay the operation of the said order which was rejected by the Learned Judge. No application for cancellation of the said order of anticipatory bail was ever preferred by the opposite party. The further case of the petitioner is that pursuant to the order of anticipatory bail, the petitioner surrendered before the Learned Chief Metropolitan Magistrate for his release on regular bail which was adjourned till 21-5-1998 on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner shall meet the Investigating Officer as and when required by him. 22.From the above orders, it will be seen that in the order granting bail, the Court proceeded on the premise that the accused had surrendered before the Court. This is in sharp contrast to the facts as recorded in the judgement dated 5th June, 1998 wherein it has been observed that no arrest was made subsequent to the grant of anticipatory bail in support of the petitioner's submissions that there was no violation of the conditions of the anticipatory bail. 23.For the above reasons, we are of the view that the circumstances as to the respondent-writ petitioner 'being in custody' in respect of the same allegations but had been enlarged on bail on 23rd June, 1998 which weighed with the learned single Judge cannot constitute a ground for staying the operation of the impugned order of retention. 24.The ratio of Harnek Singh's case (AIR 1982 SC 682) is not applicable to the instant case. In that case, the grounds of detentions were the same which were the subject matter of offences with which the petitioner was charged and in that case had been granted bail. The Supreme Court held that the detention on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the order or detention is served upon the petitioner's son, he can raise the said issue before the appropriate authority. It is, therefore, not a case where an order of detention is sought to be executed only for the purpose of harassing and humiliating the petitioner's son by initiating a false case of smuggling. The Supreme Court on similar ground has refused to interfere with the case of Alka Subhash Gadia (Supra). In that case it has been clearly held that factual background may not be a relevant consideration at this stage. It is also not a case where the order of detention has been passed long time back." 27.Although several questions of importance had been raised before us keeping in view the order proposed to be passed we did not consider it necessary to go into the same. We may, however, notice the questions which have been argued at length viz. whether an application for anticipatory bail was maintainable when merely a notice under Section 108 of the Customs Act had been served; and whether any order of detention is yet to be served upon the detenu within the jurisdiction of this court, this court will have jurisdiction to entertain any writ application or issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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