TaxTMI 
TaxTMI 
2017 (11) TMI 302
X X X X Extracts X X X X
X X X X Extracts X X X X
....it Petition. 4. The petitioner before us is an Indian citizen and residing at the address mentioned in the cause title. The petitioner has set out at page 4 of the Petition, the events and developments leading to the issuance of the detention order. 5. It would be better if we refer to the detention order itself. A copy of the order of detention dated 11th February, 2011 has not been annexed to the memo of the present Petition, but we have called for the record of the two Petitions prior to this Petition filed by this very petitioner. The order of detention states that the Detaining Authority is satisfied that the petitioner residing at the above address should be detained with a view to preventing him in future from smuggling goods. In exercise of powers conferred by Section 3(1) of the COFEPOSA, the order directs that the petitioner be detained. That order reads as under:­ DETENTION ORDER No. PSA­1211/CR­2/SPL­3(A)­ Whereas I, Nandkumar Jantre, Secretary (Appeals & Security) to the Government of Maharashtra, Home Department, Specially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nama dated 11th June, 2010. A statement was recorded of the Courier Officer of M/s. TNT (I) Limited. The Courier Assistant of that entity was also summoned and he gave a statement. Then, a team of officers, under search warrant, was sent to search the business premises of the consignee. However, the premises were found to be locked. They were sealed for being searched at a later date. Then, it is stated that the premises were owned by one Ritesh Manohar Lanjewar. His statement was also recorded. He stated that the business premises were being used by the above entity/consignee on friendship basis. The said Ritesh Lanjewar, in his statement, stated that he knew the petitioner since last three years and he furnished the residential address and mobile number of the petitioner. 7. On the basis of the statement of the said Lanjewar, the Custom Officer visited the residential address of the petitioner and enquired about the keys of the shop from his wife. This was done because the petitioner was not available. The statement of the wife was also recorded. She stated that the petitioner was doing business of medicines and that she did not have any idea about the shop and keys of the shop.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s representation dated 14th January, 2011 was considered before passing detention order. 13. The show cause notice dated 9th December, 2010 issued by the Customs has also been referred in paragraph 29 of the grounds of detention. 14. Based upon all this and the nature and gravity of the offence, so also the well-organized manner in which the petitioner was engaged in prejudicial activities, that the Detaining Authority recorded his satisfaction and conclusion that it is imperative that he should be detained under the COFEPOSA with a view to prevent him from indulging in smuggling activities in future. 15. The Detaining Authority also referred to the documents mentioned in the list and which was served alongwith the grounds of detention. The Detaining Authority thereafter recorded his further satisfaction in terms of paragraphs 33 to 38 of the said grounds of detention. 16. It is such a detention order which was not served on the petitioner and what the petitioner firstly did was to file a Writ Petition in this Court being Criminal Writ Petition No. 918 of 2011. That Petition was filed in this Court by the petitioner through an advocate and it was circulated for admission on 6th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the detenue and the affidavit in reply filed by Mr. Pralhad Jagtap, Police Inspector attached to the PCB Crime Branch, Bombay Police, indicates that after 14.02.2011 till 24.04.2011 no steps, whatsoever, were taken either by the DCB, CID, Unit­9 or by the Respondent No.2 who initiated the proposal for detention, to serve the detention order on the detenue in case the said authority was satisfied that he was absconding. In addition, the record placed before us, as of now, does not indicate that along with the detention order any further documents regarding the reasons for detention and the material relied upon, were served or sought to be served on the detenue. 6. Hence, by way of interim relief, stay to the operation of the detention order dated 11.02.2011 till the next date. 7. We direct the detaining authority as well as the Respondent No.2 to file affidavit in reply by 20th June, 2011. Let the petition be listed for final hearing peremptorily on 01st July, 2011 and the concerned record shall be placed before us by both the authorities on the next date." 18. The record indicates that Rule was issued on this Petition on 3rd May, 2011. The affidavit­in­reply was f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r at the pre­execution stage. Such a ground/contingency is not covered by any of the exceptions set out in Alka Gadia's case (supra). 21. Therefore, the above noted grounds were duly considered and the Court, while passing that order, held that there was subjective satisfaction, properly recorded by the competent authority duly authorized to pass the detention order and therefore, found no substance in any of the three grounds which were raised before it. Consequently, it held that there is no exception to the general rule in this case so as to quash the order of detention at pre­execution stage. The Division Bench found no merit in the Petition. It came to be rejected. 22. On pronouncement of the judgment by the Division Bench, the counsel for the petitioner, on 30th September, 2013, prayed that the ad­interim order passed in Criminal Writ Petition No. 918 of 2011, which was dismissed on 30th September, 2013, be continued as the petitioner intends to approach the Hon'ble Supreme Court of India. The Division Bench, on hearing both sides, found that as there was an interim relief operating from 3rd May, 2011, that deserves to be continued for a period of four w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....em in Indian markets. He has discontinued his business and now works as a real estate agent. He is permanently residing at the very address which has been mentioned in the cause title of that Petition. The petitioner categorically stated in that Petition, namely, the subsequent Petition that Criminal Writ Petition No.918 of 2011 (first Petition) was filed in this Court on 30th March, 2011 and after the interim order therein by a detailed judgment, the same was dismissed on 30st September, 2013. The Special Leave Petition challenging that judgment and order of this Court was also dismissed on 22nd April, 2016 but the protection granted by this Court on 3rd May, 2011 continued till 22nd April, 2016. After 22nd April, 2016, the detaining authority is not injuncted or restrained from executing the detention order. Thus, there was no legal impediment in execution and service of the same upon the petitioner. The petitioner was all the while residing at the same residential address and since 2005. At best, he has been travelling and staying in Mumbai and Ahmedabad, Gujarat. Still the detaining authority did not take any concrete steps to execute the order of detention and neither detained....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n, have failed to take any concrete steps to execute the detention order after the Special Leave Petition of the petitioner was dismissed on 22nd April, 2016 and the interim stay was vacated. 30. In the same memo of the second Criminal Writ Petition, in paragraph 21(e), the petitioner had averred that the inordinate delay of around 10 months in execution of the detention order would reveal that the live link is snapped and the object of the detention order is wholly frustrated. 31. There is no evidence on record that the petitioner having indulged in anti­social activities since 2010 till the filing of second Petition. The petitioner in that Petition also referred to the law and the principles emerging from several judgments of the Hon'ble Supreme Court. 32. In paragraph 22 of the second Petition, the petitioner averred as under : "22. The Petitioner states that the grounds raised in this Writ Petition seeking annulment of the order of detention at a preexecution stage is entirely different from the grounds which were raised in the earlier Criminal Writ Petition No. 918 of 2011. The Present Writ Petition is a result of subsequent developments as set out aforesaid, which....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s placed for admission on 23rd march, 2017. On 23rd March, 2017, neither the petitioner nor his Advocate appeared. As a last chance or indulgence, the Petition was adjourned to 20th April, 2017. On 20th April, 2017, after hearing both sides, the Court made the following order: "1. Heard Mr. Mohite, the learned counsel for the Petitioner and Mr. Shinde and Mr. Yagnik for the State. Mr. Mohite for the Petitioner seeks leave to withdraw the Petition with liberty to raise all the grounds of challenge open as per the decision of the Apex Court in the case of Subhash Popatlal Dave Vs. Union of India. 2. Leave with liberty is granted. Writ Petition is dismissed as withdrawn in the light of the above decision of the Apex Court." 37. Mr. Talekar has strongly relied upon this order to submit that pursuant to the liberty granted by this Court, this third Petition is maintainable. 38. The petitioner sought leave to withdraw the second Petition with liberty to raise all the grounds of challenge open as per the decision of the Hon'ble Supreme Court in the case of Subhash Popatlal Dave v/s Union of India & Anr., reported in 2014 (1) SCC 280. 39. Mr. Talekar submits that post withdrawal o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alekar submits that true it is that it is the third round of litigation, but we must note the outcome of the earlier Writ Petitions and specifically the point that the ground of delay was not available for being raised. The decision of the Hon'ble Supreme Court in Alka Gadia's case prevented the petitioner from raising this ground or any ground other than those specifically carved out for challenging the detention order at the pre­execution stage. Therefore, any concession on the point of law by the petitioner's Advocate while arguing the first Criminal Writ Petition would not bind him. All the more, when the question is of the petitioner's personal liberty and the complaint is that the mandate of Articles 21 and 22 of the Constitution of India is violated. The petitioner, therefore, advisedly did not press the said ground of delay. In any event, Mr. Talekar would submit that it was unavailable. It was noticed only after the Supreme Court dismissed the Special Leave Petition on 22nd April, 2016. The petitioner, therefore, was advised firstly to seek revocation of the order of detention relying upon the judgment in the case of Subhash Popatlal Dave (supra). It is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mr. Talekar, the instant Petition is maintainable and should be allowed. 44. Mr. Talekar has relied upon the following judgments in support of his contentions:­ 1. Subhash Popatlal Dave vs. Union of India, reported in (2012) 7 SCC 533; 2. Election Commission of India vs. St. Mary's School & Others, reported in (2008) 2 SCC 390; 3. Malini Mukesh Vora vs. Union of India & Ors., reported in ILR (2010) I Delhi 35; 4. K.S. Puttaswamy vs. Union of India, reported in 2017 SCC Online SC 996; 5. Ghulam Sarvar vs. Union of India & Ors., reported in (1967) 2 SCR 271; 6. Lallubhi Jogibhai Patel vs. Union of India & Ors., reported in (1981) 2 SCC 427; 7. Kirit Kumar Chaman Lal Kundaliya vs. Union of India & Ors., reported in 1981 (2) SCC 436; 8. Deepesh Mahesh Zaveri vs. Union of India & Ors., reported in 1998 (2) Mh.L.J. 634; 9. V.M. Salgaocar and Bros. Pvt. Ltd. vs. Commissioner of Income Tax, reported in (2000) 5 SCC 373; 10. T.P. Moideen Koya vs. Govt. Of Kerala and Others, reported in (2004) 8 SCC 106; 11. Chandi Prasad and Ors. vs. Jagdish Prasad and Ors., reported in (2004) 8 SCC 724; 12. Srikant vs. District Magistrate, Bijapur and Others, reported in (2007) 1 SCC 4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd withdrew the second Writ Petition. Now, in the garb of a further representation to the Detaining Authority under Section 11 of the COFEPOSA for revocation of the impugned detention order being rejected, we should not entertain this ground in the third Criminal Writ Petition. The argument of Mr. Yagnik is that this objection is not based on the principle of res judicata or constructive res judicata, both of which are not applicable in the case of withdrawal of Petition of habeas corpus or challenging a preventive detention order. However, equally important is the principle of finality of judgments and orders. That is the principle which, cutting across the nature of the litigation, applies with full force to Writ Petitions under Article 226 of the Constitution of India. Mr. Yagnik would submit that there is no licence to abuse the process of this Court. The petitioner cannot, by giving up his challenge on the ground of delay on his own though available earlier, now turn around and state that the said plea or ground be allowed to be raised in the third round. This third round is not available as of right. Mr. Yagnik would submit that if this rule is not followed, there would be mu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at there is a proclamation issued and now, further steps would be taken in furtherance thereof. It is in these circumstances that Mr. Yagnik would rely upon the orders passed under Section 7(1) (a) and (b) of the COFEPOSA. For all these reasons and further relying upon the judgment delivered by a Division Bench of this Court in Criminal Writ Petition Nos. 506 and 970 of 2014 dated 1st August, 2014, in the case of Smt. Khushbu Sandeep Jain Vs. State of Maharashtra and others and Anjana Rikabchand Mehta Vs. The State of Maharashtra and others, the submission is that the Petition be rejected. 49. For properly appreciating above contentions and the preliminary objection, we must first note some undisputed facts. 50. Mr. Talekar has been fair in pointing out that earlier two Criminal Writ Petitions were filed. He has submitted that a concession was given by the counsel appearing for the petitioner at the hearing of the first Criminal Writ Petition that the ground of delay in execution and service of the detention order is not available considering the principles or exceptions carved out in Alka Gadia's case. We proceed on the footing that there was a concession of law and given by....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... words". There is no aura of finality attached to the said expression. The use of the expression suggests that the five examples were intended to be exemplars and not exclusive (sic exhaustive). On the other hand, the Hon'ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power. 46. It is only in Sayed Taher Bawamiya case that another three­Judge Bench considered the ratio of the decision of this Court in Alka Subhash Gadia case and observed that the courts have the power in appropriate cases to interfere with the detention orders at the pre­execution stage, but that the scope of interference was very limited. It was in such context that the Hon'ble Judges observed that while the detention orders could be challenged at the pre­execution stage, that such challenge could be made only after being prima facie satisfied that the five exceptions indicated in Alka Subhash Gadia case had been fulfilled. Their Lordships in para 7 of the judgment in Sayed Taher case held that the case before them did not fall under any of the five exceptions to enable the Court to interfere. Their Lordships also re....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 49. The law is never static but dynamic, and to hold otherwise, would prevent the growth of law, especially in matters involving the right of freedom guaranteed to a citizen under Article 19 of the Constitution, which is sought to be taken away by orders of preventive detention, where a citizen may be held and detained not to punish him for any offence, but to prevent him from committing such offence. As we have often repeated, the most precious right of a citizen is his right to freedom and if the same is to be interfered with, albeit in the public interest, such powers have to be exercised with extra caution and not as an alternative to the ordinary laws of the land. 50. In the light of the above, let the various special leave petitions and the writ petitions be listed for final hearing and disposal on 7­8­2012 at 3.00 p.m. This Bench be reconstituted on the said date, for the aforesaid purpose." 53. It is equally true that thereafter, the Hon'ble Supreme Court speaking through the same Hon'ble Judges, pronounced the final Judgment in Subhash Popatlal Dave vs. Union of India & Another. (2014) 1 SCC 280. That judgment decides the reference finally. 54. It was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f detention ought to be served on him once he gains knowledge that the order of detention is in existence so as to offer him a plank to challenge even the grounds of detention after which the courts will have to examine whether the order of detention which was passed at the relevant time but could not be served was based on sufficient material justifying the order of detention. Remedy to this situation has already been offered by this Court in Union of India v. Parasmal Rampuria wherein it was observed as under : (SCC p.403, para 5) "5. .... the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution of India." 18. The consequence that follows from the above is that each individual/proposed detenu will have to be served with the order of detention which had been passed against him along with the grounds and the materials relied upon by the authorities to pass the order of detention leaving i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... even before it was executed, it is not open for them to contend that it should be quashed because there is no live link between the existing/subsequent situation and the previous situation when the order of detention was passed overlooking that they succeeded in pre­empting the order by challenging it at the pre­execution stage never allowing the matter to proceed so as to examine the most crucial question whether there were sufficient material or grounds to pass the order of detention. 21. Subsequent events or conduct in any view would be a matter of consideration for the authorities before whom the representation is filed after the grounds are served on the detenu and cannot be gone into when the only question raised is regarding the correctness and legality of the order of detention. The alternative view is bound to operate as a convenient tool in the hands of the law­breakers which has not been approved earlier by this Court in the decisions referred to earlier. 22. A fallout and consequence of the aforesaid discussion, therefore, in my view, is that the order of detention cannot be quashed and set aside merely due to long lapse of time on the specious plea that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rily resides; and thereupon the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct thesaid person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub­section (1) shall be cognizable". 42. It can be seen from the said Section 7 that in a case where proposed detenu is absconding or concealing himself, the Government may report the matter to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....assed by the High Court of Bombay. It is true that the High Court acts through a Judge or Judges nominated by the Chief Justice for that purpose, and although an application under S. 491 may be heard by a Division Bench of this Court the judgment that it ultimately pronounces is not the judgment of that Division Bench but the judgment of the High Court. The Division Bench acts on behalf of the High Court and as the High Court for the purpose of hearing and disposing of an application under S.491. Therefore when the decision is given, it is the decision of the High Court. There is no provision either in the Letters Patent or in any of the rules framed by the High Court for a Judge or Judges of the High Court to exercise independent jurisdiction in matters coming under S.491. The question still remains whether in cases that may not fall under S.491 and which may fall under Art. 226 there is any independent jurisdiction conferred upon any Judge of the High Court to issue writs contemplated by Art. 226. It is clear that even under Art. 226 it is only the High Court that can issue a writ for the enforcement of a fundamental right. The jurisdiction is conferred upon the High Court as suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....take which is of a purely technical and procedural character. Such an appeal is very often irresistible, but fortunately in this case, as I shall presently point out, it is unnecessary to be apprehensive as to the right of a citizen to enforce his fundamental rights. Although the decision of the High Court refusing a writ or order under Art. 226 may become final qua the High Court, it is not as if the Constitution does not provide other remedies to the citizen. He has a right, an independent right, to approach the Supreme Court under Art. 32. The powers of the High Court and the Supreme Court in this respect are concurrent, and notwithstanding the refusal of the High Court to enforce the fundamental rights of the citizen, he can approach the Supreme Court in its primary jurisdiction. Apart from that there is a right of appeal given to the citizen from an order of refusal of the High Court to enforce his fundamental rights. He has the right to ask the Supreme Court to grant him special leave to appeal under Art. 136. Therefore it is not as if the citizen is without a remedy in the event of the High Court refusing to review its own judgment, however erroneous that judgment may be." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... conduct is irrelevant. 61. If that is the law, then, we would be justified in the approach that we adopt in this case or the view that we eventually take. 62. In the later unreported judgment (supra) brought to our notice by Mr. Yagnik, though there is no reference to the two judgments of the Hon'ble Supreme Court, we would be failing in our duty if we do not refer to them. 63. In T.P. Moideen Koya vs. Govt. of Kerala and Others, reported in (2004) 8 SCC 106, the facts were that the residence of one gentleman was searched, gold biscuits of foreign origin and Indian currency and foreign currencies were recovered and some documents and a computer with accessories were also seized. The statements were recorded and the seized material showed that the petitioner Koya before the Supreme Court had dealt with 290 smuggled gold biscuits valued at Rs. 1.5 crores. The details were mentioned and thereafter, a detention order was passed on 21st January, 2002. The petitioner Koya absconded and proceedings under Section 7(1) of the COFEPOSA had to be initiated. Thereafter, he surrendered before the Court of Additional Chief Judicial Magistrate on 4th September, 2002 and was taken in custo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....titioner prays for setting him at liberty. If a person under detention files a writ of habeas corpus under Article 226 of the Constitution before the High Court and the writ petition is dismissed (whether by a detailed order after considering the case on merits or by a non­speaking order) and the said decision is not challenged by preferring a special leave petition under Article 136 of the Constitution and is allowed to become final, it would still be open to him to file an independent petition under Article 32 of the Constitution seeking a writ of habeas corpus. 12. However, the position here is quite different. After the habeas corpus petition seeking quashing of the detention order passed against the petitioner and for setting him at liberty had been dismissed by the Kerala High Court, the matter was carried in appeal to this Court by filing a petition under Article 136 of the Constitution. After leave was granted, the appeal was dismissed by a detailed judgment wherein all the contentions raised laying challenge to the detention order and also to the continued detention of the petitioner had been considered. The question is whether, even in such circumstances, a subsequen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erving out the detention order, the objection being of importance, the Hon'ble Supreme Court considered the issue of maintainability, referred the T.P.Moideen's case and then held thus:­ "8. Whether any new ground has been taken has to be decided by the court dealing with the application and no hard­and­fast rule can be laid down in that regard. But one thing is clear, it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds." 67. The conclusion is, whether any new ground has been taken, has to be decided by the Court dealing with the application and no hard­and­fast rule can be laid down in that regard. It is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds. 68. It is precisely this test which we have applied to the facts and circumstances of the present case. We are not laying down any general rule. Eventually, in all such matters, facts and circu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on, the distinction between acts where punishments are provided and the acts where arrest and prosecution are not contemplated pales into insignificance. We must remember: the person who violates foreign exchange regulations or indulges in smuggling activities succeeds in frustrating the development and growth of the country. His acts and omissions seriously affect national economy. Therefore, the relevance of provision for preventive detention of the anti­social elements indulging in smuggling and violation and manipulation of foreign exchange in COFEPOSA continues even after repeal of FERA. 59. The menace of smuggling and foreign exchange violationshas to be curbed. Notwithstanding the many disadvantages of preventive detention, particularly in a country like ours where right to personal liberty has been placed on a very high pedestal, the Constitution has adopted preventive detention to prevent the greater evil of elements imperiling the security, the safety of State and the welfare of the Nation. 60. On the touchstone of constitutional jurisprudence, asreflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i Devi (supra), the Supreme Court held that a preventive detention order has a life. If an argument of the nature canvassed, that because time has gone by after its passing and it being not served is accepted unmindful of the contumacious conduct of the detenu, then, the whole object and purpose of the law and the detention order is frustrated. In paragraph 68 of decision in Dropti Devi's case, the Hon'ble Supreme Court brought into focus the issue of contumacious conduct and the principle that one cannot take advantage of ones' own wrong. If that is applied equally in such matters, then, ignoring the binding judgments would be violating the judicial discipline. It is precisely that course and adherence to judicial discipline which enables us to uphold the preliminary objection in this case. 72. The petitioner is a COFEPOSA detenu. He was throughout advised by the competent legal brains. He had the advantage of best legal assistance. He was briefing counsel and the senior counsel throughout. He could have pressed, at least in the second Writ Petition, all these grounds which are now pleaded. We have referred to the earlier pleadings and heavily relied upon by Mr. Yagni....