TaxTMI 
TaxTMI 
2014 (3) TMI 1096
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....llows. i) On 11/12.10.2000, officers of SIU M&P Wing intercepted and seized the vehicles containing foreign origin goods including cigarettes which was followed by search at various premises and recording of incriminating statements of various individuals including the detenu Nitesh 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 issued by Joyce Shankaran, Principal Secretary to the Government of Maharashtra, on receipt of proposal from the Customs Authorities on the basis of the 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....
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....tice 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 grant the detenu herein permission to travel abroad for the period from 15.8.2013 to 1.11.2013 vide order dated 13.8.2013. The roznama of the said Court proceedings shows the presence of the detenu herein as well as the officer of the Sponsoring Authority (Investigating Officer) with their respective advocates. It also records that advocate for the Department (Sponsoring Authority) filed Say/reply to the application. x) 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 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 s....
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....urt stayed the execution of the impugned detention order till 17.2.2014. When the matter was taken up on 17.2.2014, learned advocate appearing for respondent 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.Advocate Mr.R.S.Rai alongwith learned Advocate Ms.Ashima Mor appeared for respondents No.5 & 6 and opposed the petition. A counter affidavit dated 10.3.2014 was also placed on record inadvertently showing the detenu as petitioner in the cause title. Paragraph 6 of the above counter affidavit read as follows:- "6. With reference 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 ....
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....Hon'ble Supreme Court. Learned counsel appearing for the Detaining Authority also took me through the very same judgement. 10. It is seen that in the said judgement dated 16.7.2013 of a Three Judges' Bench of the Hon'ble Supreme Court, all the three Hon'ble Judges gave their separate judgements. The then Hon'ble the Chief Justice in his minority judgement recorded relevant facts and was pleased to quash and set aside the impugned detention order. Whereas, the other two Hon'ble Judges dismissed the petitions holding to the effect 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 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 c....
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....ll 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 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 as per the terms of the judgement of the Hon'ble Supreme Court dated 16.7.2013. vii) He submitted that delay and casualness in execution may be considered only from 16.7.2013 and not before that, in view of the above judgement dated 16.7.2013. viii) Learned Sr.counsel appearing 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 demon....
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....tion order and detain the detenu even after judgement of the Hon'ble Supreme Court dated 16.7.2013, when he appeared in Court on 13.8.2013 vitiates the order of detention. iv) Whether respondents are correct in claiming that ascertaining the actual position regarding recourse to ordinary punitive law of the land is wholly irrelevant having no bearing whatsoever on the issue of preventive detention. 14. I do not find any merit in the stand taken by the respondents to 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 respondents could not show any binding precedent where the Courts have refused to consider the challenge of a detenu in a habeas corpus petition after execution of the detention order, merely because challenge was u....
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....at: "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 concept of partial cause of action by the Division Bench in Sewa Ram's case (supra) and accept a liberal, pragmatic and practical construction which would be in consonance with the letter and spirit of Art.226(2) of the Constitution. 23. We are of the opinion that service of the detention order and taking of the detenue in custody in execution of such an order within the territories of the State of Rajasthan shall supply part of cause of action for challenging the detention order. 24. We therefore 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 he....
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....i.L.J. 889, Desai, J. (as His Lordship then was) speaking for the Division Bench of Gujarat High Court held that 'as initial detention of detenu which was at Baroda is continued, the same furnishes a part of cause of action to the detenus which arises within the jurisdiction of this Court'. So taking 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 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." 21. In Reena Ranka vs. Union of India, 1991 CrI.L.J. 3195, i....
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....ala 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 of India, 2003(1) RCR (Criminal) 83, after considering, inter alia, the said judgement in D.N.Anand's case (supra), this Court held as follows:- "13. ...... The petitioner is also apprehending his arrest at the place of his residence i.e. Ludhiana, within the territorial jurisdiction of this court. Under these circumstances, in my opinion, it can certainly be said that a part of the cause of action has arisen within the territorial jurisdiction of this court. That being so, this court would 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:- ....
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.... 10 days thereafter so as to enable the appellant to take recourse to appropriate remedies. It is to be noted that SLP(Crl.) 5157- 5158/2008 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 merits of the petition as post-detention petition, albeit after surrender of the detenu. It is a settled position of law that if any petition has not matured initially, the Court can await its maturity for consideration thereafter. No right was conferred upon the Detaining Authority to absolve herself from the obligation to satisfy this Court regarding the validity of the order of detention issued by her. 29. In Ummu Sabeena vs. State of Kerala and others, (2011) 10 SCC 781, the Hon'ble Supreme Court held that in dealing with writ petitions of habea....
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....ht cancellation of bail granted to the detenu. It is also seen that while passing the order dated 24.7.2013, the Court of Sessions at Mumbai allowed the prayer of the detenu seeking deletion of condition to surrender his passport in the offence under the Customs Act. It was also recorded by the Court of Sessions at Mumbai that inspite of ample opportunities afforded, the officer of the Customs Department, i.e. the Sponsoring Authority had failed to file his reply/Say to the application. Therefore, an order favourable to the detenu to proceed 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 the Sponsoring Authority and was pleased to grant the detenu herein permission to leave for abroad for the period from 15.8.2013 to 1.11.2013 vide order d....
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....e 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 efforts were made and no urgent and effective steps were taken to serve the detention order on the petitioner therein the order of detention imposed therein was quashed. The judgement of the Hon'ble Supreme Court in Bhanwarlal Ganeshmalji vs. State of Tamil Nadu, (1979) 1 SCC 465 was also considered in the said judgement in P.M.Hari Kumar's case (supra). 36. Even in the instant case, there is no dispute on the fact that neither the Sponsoring Authority nor the Detaining Authority was diligent 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 ....
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.... factual infirmity in the impugned detention order. In the instant case, in the grounds of detention, the Detaining Authority has failed to advert to the factual position regarding recourse to ordinary punitive law of the land. The Detaining Authority is obliged to inquire about the status of the prosecution proceedings, if any, and if there is none, about the stand 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 of the petitioner on Somnath Kundu vs. Union of India and others, 1987 (32) ELT 657(Delhi) and Shri Ram Goyal vs. Union of India, 1984 Criminal Law Journal 1048 is therefore apt and the detention order is vitiated on the vice of non-application of mind on this very vital aspect. 40. In Ashutosh Lahiry vs. State of Delhi, AIR 1....
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....rder 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 the Detaining Authority regarding concealment or suppression of facts, I find it appropriate to refer on this aspect a leading judgement of the Hon'ble Supreme Court in M/s S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and others, (2004) 7 SCC 166 wherein it has been held as follows:- "13. As a general rules, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant 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 th....
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.... find any merit in these technical objections of suppression of facts raised on behalf of the Detaining Authority which chose not to deal with the merits of the limited grounds raised in the petition 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 large scale and are involved in other anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenus the cases do not justify interference with the orders of the detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more....