2000 (8) TMI 1060 - SC - Customs

Detention orders - Held that - Appeal dismissed. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds.

Summary

Issues:
Challenge to detention order not served due to detenu evading service; Exercise of discretionary jurisdiction under Article 226 and Article 32 at the pre-execution stage.

Analysis:
The judgment dealt with an order of detention issued under the COFEPOSA Act against the brother of the petitioner, which had not been served due to the detenu leaving India and evading service for over 16 years. The petitioner challenged the detention order in the High Court, but the court declined to entertain the writ petition based on the decision in the case of Addl. Secy, to the Govt. of India v. Alka Subhash Gadia. The High Court concluded that it would not be appropriate to entertain the petition as the detenu had not surrendered and the order had not been served. An appeal by special leave petition and a separate writ petition under Article 32 were filed against this decision, which the Supreme Court intended to dispose of in the present judgment.

The Supreme Court referred to the Alka Subhash Gadia case, emphasizing that equitable jurisdiction under Article 226 and Article 32 should not be exercised when the proposed detenu successfully evades service of the order. The Court highlighted that interference with detention orders at the pre-execution stage is limited and should only occur in specific circumstances. These circumstances include instances where the order is not passed under the relevant Act, executed against the wrong person, for a wrong purpose, based on vague grounds, or by an authority lacking the power to do so. In the present case, the Court found that none of these exceptions applied, rejecting the argument that the exceptions were not exhaustive. The petitioner's claim that the order was vague, extraneous, or based on irrelevant grounds was dismissed since the order had not been executed, and the grounds were not on record.

Ultimately, the Supreme Court upheld the judgment of the Bombay High Court, dismissing both the appeal and the writ petition. The Court clarified that the issue regarding the bar of res judicata due to a prior writ petition filed in the Bombay High Court and subsequently withdrawn was not decided in the current proceedings.