TaxTMI 
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2026 (3) TMI 218
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....eferred to as the 'COFEPOSA Act'), by which the petitioner was ordered to be detained and kept in Tihar Jail, New Delhi. 2. The petitioner has also challenged the order dated 12.12.2019 passed by the learned Chief Metropolitan Magistrate (CMM), Patiala House Courts, New Delhi in Case no. 14556/2018, titled Customs v. Vinod Kumar Pathror, declaring the petitioner as a Proclaimed Offender pursuant to proceedings initiated under Section 7(1) (a) of the COFEPOSA Act. 3. The challenge to the detention order is admittedly at the pre-execution stage, as the petitioner has not been taken into custody pursuant to the impugned order. CASE OF THE RESPONDENTS 4. The background of the present petition is that the Director General of Foreign Trade (DGFT), Ministry of Commerce issues licenses to exporters under various schemes as an incentive to them for making exports and increasing the quantum of the same. The licenses are also called "scrips" and carry a monetary value. The scrips can be utilized for payment of customs duty or for the import of any item which is in the Open General List (OGL), that is, freely importable. These scrips are also tradable commodities by themselves in a....
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.... to respond to the allegations and participate in the proceedings, however, the petitioner neither responded to the said notices nor appeared before the concerned officers for investigation. 10. Thereafter, a complaint dated 02.12.2015 was filed under Sections 174 and 175 of the Indian Penal Code (IPC), 1860 for non-compliance with the summons by Shri Sharafat Hussain and the petitioner. The learned Additional Chief Metropolitan Magistrate (ACMM) issued summons dated 02.02.2016 directing the petitioner to appear in person on 15.03.2016. However, the petitioner herein neither appeared nor responded to the summons. 11. The matter was further referred to the Directorate General of Vigilance (DGOV) and other agencies and details of petitioner's alleged role were forwarded to the Directorate of Revenue Intelligence (DRI) for issuance of a Look Out Circular. Since the petitioner was not appearing and cooperating in the investigation, a red alert was issued against the petitioner. 12. Thereafter, an FIR bearing No. 0151/2016 dated 19.09.2016 was registered by the Cyber Crime Cell against the petitioner and Shri Sharafat Hussain. An arrest warrant was issued by the learned Chief M....
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....counsel for the respondents, by placing reliance on a judgment of this Court in Pawan Gupta v. Union of India & Anr., 2024:DHC:7969: DB, submits that a person who has deliberately avoided execution cannot be permitted to invoke the doctrine of snapping of live and proximate link to contend that the order has become stale on account of delay. He further contends that where the delay in execution is attributable to the conduct of the proposed detenue and proceedings under Section 7 of the COFEPOSA Act have been duly initiated, the detention order cannot be assailed at the pre-execution stage. 20. By placing reliance on the judgment of the Supreme Court in Subhash Popatlal Dave v. Union of India, (2012) 7 SCC 533, the learned counsel for the respondents contend that a person who has absconded or evaded execution of a detention order cannot be heard to contend that the detention order has become stale on account of delay, as such an argument would amount to permitting the law-breaker to take advantage of his own wrong. 21. The learned counsel for the respondents further submits that the reliance placed by the petitioner on the decision in Additional Secretary to the Govt. of Indi....
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.... petitioner that the present case squarely falls within the recognised exceptions permitting pre-execution interference as laid down, particularly in the view that the impugned detention order does not mention anything about allegation of scrips that is alleged on the petitioner and only mentions that petitioner is prevented from abetting smuggling goods informer. 26. It is contended by the learned counsel for the petitioner that the impugned detention order passed against the petitioner is dated 02.01.2018 and whereas the respondent authorities have filed an application under Section 7(1)(a) of the COFEPOSA Act on 11.09.2018, that is, after a considerable delay of about 9 months and respondent authorities have failed to explain the same. 27. The learned counsel for the petitioner submits that apart from invoking proceedings under Sections 82 and 83 of the Cr.P.C., the respondent authorities failed to take any diligent steps to execute the detention order. Placing reliance on a decision in A. Mohammed Farooq v. Joint Secretary to the Government of India., (2000) 2 SCC 360, it is submitted by the learned counsel for the petitioner that unless the delay in execution is satisfac....
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....e 226 to judicially review a detention order even at the pre-execution stage. 33. It is further submitted by the learned counsel for the petitioner that, the mere fact that the petitioner has been declared a Proclaimed Offender, does not bar the maintainability of the present Writ petition, as a proclamation order cannot eclipse constitutional remedies where the foundational detention order itself is under challenge. ANALAYSIS/ CONCLUSION 34. We have considered the submissions made by the learned counsels for the parties. 35. The issue before us is, as to whether we should entertain the present petition, which challenges the impugned order of detention at a pre-execution stage. 36. As far as the jurisdiction of the Court to entertain a challenge to a preventive detention order prior to its execution is concerned, the law is now well settled inasmuch as the Supreme Court has repeatedly held that, though there is no complete bar on the exercise of such jurisdiction, the general principles that govern the exercise of such jurisdiction would still be applicable, including those of self-restraint of a Court to come to the aid of a person who is absconding from the law. In....
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....pproaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power....
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....ish to the detenu the order of detention but also the grounds of detention and the documents relied upon for passing the detention order " 37. In Subhash Popatlal Dave (supra), the Supreme Court clarified that the five exceptions that had been carved out in the judgment in Alka Subhash Gadia (supra), were not intended to be exclusive as far as the challenge to a detention order at a pre-execution stage is concerned. However, by a ratio of 2:1 (Justice Gyan Sudha Misra and Justice Chelameswar), it was held that though the preventive detention order can be challenged beyond the five grounds which have been enumerated in the case of Alka Subhash Gadia (supra), a detenue who has absconded, cannot be allowed to challenge the said order at the pre-execution stage taking advantage of the long lapse of time for which it remained unexecuted. We may quote from the opinion of Justice Gyan Sudha Misra, as under:- "14. From the ratio of the aforesaid authoritative pronouncements of the Supreme Court which also includes a Constitution Bench judgment having a bearing and impact on the instant matters, the question which emerges is that if the order of detention is allowed to be challe....
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....This, in my view, would render the very purpose of preventive detention laws as redundant and nugatory which cannot be permitted. On the contrary, if the order of detention is allowed to be served on the proposed detenue even at a later stage, it would be open for the proposed detenue to confront the materials or sufficiency of the material relied upon by the authorities for passing the order of detention so as to contend that at the relevant time when the order of detention was passed, the same was based on non-existent or unsustainable grounds so as to quash the same. But to hold that the same is fit to be quashed merely because the same could not be executed for one reason or the other specially when the proposed detenue was evading the detention order and indulging in forum shopping, the laws of preventive detention would surely be reduced into a hollow piece of legislation which is surely not the purpose and object of the Act. 16. Therefore, in my view, the order of detention is not fit to be quashed and should not be quashed merely due to long lapse of time but the grounds of detention ought to be served on him once he gains knowledge that the order of detention is i....
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....as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law. xxx 27. The question whether the five circumstances specified in Alka Subhash Gadia case (supra) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive.4 But that does not persuade me to hold that such a scrutiny ought-to be undertaken with reference to the cases of those who evaded the process of law." 39. This Court in Pawan Gupta (supra), considering the above judgment and the judgment of the Division Bench of this Court in Mohd. Nashruddin Khan (supra), refused to exercise its jurisdiction under Article 226 of the Constitution of India, in favour of the petitioner therein who had also been declared as an absconder. 40. From the above, it can be gathered that....