TMI Blog2008 (5) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... a sensitive position and owed a greater degree of duty than an ordinary citizen. The Petitioner ought to have surrendered and then urged whatever grounds are available to him. The Petitioner has made a mockery of the detention order by evading the same for the last more than 7 years. The Petitioner is not entitled to invoke the discretion of writ jurisdiction on this ground also. The Petition is dismissed. - 599 of 2007 - - - Dated:- 16-5-2008 - Vikramajit Sen and Rajiv Sahai Endlaw, JJ. [Judgment per : Rajiv Sahai Endlaw, J.]. - The Petitioner was employed as Assistant Grade II with the Airport Authority of India (AAI) constituted by an Act of Parliament, to manage Airport and related services including of cargo handling. The Petitioner, between 19th January, 1998 to 16th May, 1998 was posted at the Import Counter of the Cargo Terminal at IGI Airport, New Delhi. On 17th June, 1998 i.e., after the Petitioner had been transferred from the Import Counter, two consignments of goods imported in the name of Marita Enterprises and S.N. Impex from Hong Kong were seized by the Customs Authorities and were found to contain goods and of the value, otherwise than declared. Investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this petition is dismissed." 4. The Petitioner preferred a Special Leave Petition to the Hon'ble Supreme Court in which the following order was made on 11th May, 2001 : 'Prayer for exemption from surrendering is rejected. Special Leave Petitions are dismissed.' 5. The Petitioner preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal against the adjudication order levying penalty of Rs. 10 lacs on him. The Tribunal vide order dated 8th October, 2003 allowed the appeal of the Petitioner. The counsel for the Petitioner has placed reliance on para 12 of the order of the Tribunal which is as under : "12. However, we notice that imposition of penalty on Shri Sudhir Malhotra, an employee of AAI is not justified as his alleged acts of omission or commission are not demonstrated to be in any way connected with the missing 65 consignments. We accordingly set aside the penalty imposed on Shri Sudhir Malhotra." 6. The Petitioner made representation dated 11-4-2005 for revocation of the detention order dated 4-8-2000 to Govt. of India and Govt. of N.C.T. of Delhi, respectively. The said representation was dismissed vide communications dated 12-7-2005 and 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter being at pre-execution stage. Reliance was placed on UOI v. Vidya Bagaria [(2004) 5 SCC 577)]; Naresh Kr. Goyal v. UOI [(2005) 8 SCC 276)] and Sayed Taher Bawamiya v. Joint Secretary [(2000) 8 SCC 630]. 9. We cannot lose sight of the fact that the Apex Court in Additional Secretary to the Government of India and Ors v. Smt. Alka Subhash Gadia and Another [1991 (53) E.L.T. 481 (S.C.) = 1992 Supplementary (1) SCC 496], while permitting the judicial review at pre-execution/pre-detention stage, has limited the scope thereof to the five grounds mentioned therein. These grounds were in Administration of NCT of Delhi v. Prem Singh [1995 Supp (4) SCC 252] held to be the only permissible grounds on which at pre-detention stage, the detention order could be quashed. Again, in Subhash Muljimal Gandhi's case [1994 (5) JT (SC) 858] it was clarified that the other contingencies if any, for quashing the detention order at pre-detention stage must be of the same species as the five grounds aforesaid. 10. We are of the opinion that merely because the Petitioner, while evading detention, applies for revocation under Section 11, would not expand the scope of the judicial review and circumven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of detention is passed for extraneous reasons. However, this view is diametrically opposite to the Full Bench Judgment of this court that the vitiating factors must exist at the time of passing of the detention order with which we are bound and which was not noticed by the Division Bench. 14. Undoubtedly, the Apex court in Rajinder Arora case, at pre-detention stage held that delay in issuing show cause notice and in launching prosecution and even in issuance of detention order attract the Grounds (iii) and (iv) of Alka Gadia case. However, the Apex court in Sayed Taher Bawamiya and Naresh Kumar Goyal and Vidya Bagaria (supra) has held that delay in passing or execution of detention order is not a ground available at pre-detention stage. We are faced with the daunting task of reconciling the said apparent difference in views. With respect, we find that the Judgments in Alka Gadia case, Sayed Taher Bawamiya case and Naresh Kumar Goel case are of the Bench of three Hon'ble Judges respectively. The Judgment in Rajinder Arora case is of a Bench of two Hon'ble Judges. Further, Rajinder Arora case strikes a note contrary to consistent view otherwise of the Apex court. Rajinder Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the Petitioner had ceased to occupy the office which he had misused. We may, however, add that when the Apex court in Alka Gadia case has held that at pre-detention stage there is no right even to receive the grounds of detention, consequently, the judicial review on merits of the order cannot be available. The third contingency of Alka Gadia case, namely, 'that the order is passed for a wrong purpose' cannot be read as permitting judicial review as to merits of the detention order. If that were to be so, the Apex court would not have held that the scope of judicial review at pre-detention stage is limited. It is significant that the word used is 'purpose' and not 'reasons'. The ground under third condition is of mala fide and is to be established from evidence aliunde, as in Rajinder Arora case, of purpose for detention order being filing of complaint of torture against officials of sponsoring Authority. 18. The exoneration of the petitioner before the Tribunal was the only fresh ground pleaded by the petitioner for revocation of the detention order as well as before this court. Though, we have already stated that the same being an event subsequent to the passing of the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the two judgments, relied upon by the Senior counsel for the Petitioner, lay down the law to the said effect. The Petitioner having earlier filed the petition, which was dismissed as aforesaid is not entitled to maintain the present petition against the detention order, save on grounds if any which have become available since the earlier dismissal. 20. The ground of the detention order being bad for the reason of Petitioner having already been transferred from the Import Counter was available to the Petitioner at the time of preferring the earlier writ petition and cannot be urged again. 21. We may also record that we had during the hearing put it to the counsel for the Petitioner that the Petitioner appear before the court to get over the limitations in challenge at pre-execution/pre-detention stage. However, the same was not acceptable to the counsel for the Petitioner. 22. We also cannot forget that as many as 65 import consignments had gone missing in a short span. The same is not possible without the involvement of the officials of the AAI. If the Petitioner, in the short span of his posting at the Import Counter could be involved in it, the formation of a syndicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
