2009 (7) TMI 1223 - HC - Customs

Detention of person - territorial jurisdiction - Maintainability of petition - Held that - even if we are to consider the question of territorial jurisdiction from the standpoint of Article 226 (2) of the Constitution of India this Court would certainly have jurisdiction to entertain the present writ petition - whether the present case is viewed from the standpoint of Article 226(1) or from the standpoint of Article 226(2) this Court would have territorial jurisdiction to entertain the present writ petition. Validity of detention order - the retraction letter of Kiran Vora dated 28.02.2001 had not been placed/ considered by the detaining authority - case of petitioner is also that the detention order has lost its relevance due to efflux of time - Held that - the detention order in the present case has lost its relevance through the combined effect of passage of time and lack of any evidence of any prejudicial activity on the part of the proposed detenu (Mukesh Vora) - the fact that this writ petition is maintainable even at the pre-execution stage coupled with the fact that in the passage of over eight years since the passing of the detention order there is no evidence on record of any prejudicial activity on the part of the proposed detenu Mr Mukesh Vora in itself is sufficient for us to conclude that the detention order has lost its relevance today. The detention order be cancelled - petition allowed.

Issues Involved:

1. Territorial jurisdiction of the High Court to entertain the writ petition.
2. Legality of the detention order due to non-placement/non-consideration of a relevant document.
3. Staleness of the detention order due to efflux of time.

Detailed Analysis:

1. Territorial Jurisdiction:

The respondents raised a preliminary objection regarding the territorial jurisdiction of the Delhi High Court to entertain the writ petition. They argued that all material events occurred outside Delhi, except for the issuance of the detention order and grounds of detention. The court noted that the respondents did not raise this plea in their counter-affidavit but considered it due to its strong urging. The court held that the issuance of the detention order and the drawing up of the grounds of detention constituted a material part of the cause of action, thus conferring jurisdiction under Article 226(2) of the Constitution. The court also referred to Article 226(1), which empowers a High Court to issue writs to persons, authorities, or governments within its territorial limits irrespective of where the cause of action arose. The court concluded that the Delhi High Court had jurisdiction to entertain the writ petition.

2. Legality of the Detention Order:

The petitioner argued that the detention order was illegal from its inception because a relevant document, the retraction letter of Kiran Vora dated 28.02.2001, was not placed before or considered by the detaining authority. The court noted that the detention orders of the co-detenus Iqbal Mehra and Kiran Vora were revoked based on the Advisory Board's opinion that the retraction letter was not considered. The respondents contended that it could not be established whether the retraction was not placed before the detaining authority. The court observed that the index of documents appended to the grounds of detention in the case of the co-detenu Iqbal Mehra mentioned the retraction application, indicating its placement. However, the court emphasized that the issue was not just non-placement but non-consideration of the retraction statement. The court concluded that while it could not ascertain whether the detention order in the case of the petitioner's husband suffered from the same defects as the co-detenus, the order had lost its relevance due to the passage of time.

3. Staleness of the Detention Order:

The petitioner argued that even if the detention order was valid when issued, it had become stale due to the efflux of time, severing the link between the order and its object. The court referred to its decision in Gopa Manish Vora v. Union of India, where it relied on the Supreme Court's decision in Maqsood Yusuf Merchant v. Union of India. The court noted that there was no evidence that the proposed detenu, Mukesh Vora, had indulged in any prejudicial activities after the passing of the detention order on 13.03.2001. The respondents argued that the petitioner could not take advantage of his own wrong by absconding. The court observed that preventive detention is not a punishment for a past wrong but a means to prevent future prejudicial activities. The court concluded that the detention order had lost its relevance due to the passage of time and the lack of evidence of any prejudicial activity by the proposed detenu.

Conclusion:

The court held that the writ petition was maintainable even at the pre-execution stage and that the detention order had lost its relevance due to the passage of time and lack of evidence of prejudicial activity. Consequently, the court directed that the detention order be canceled and allowed the writ petition to the aforesaid extent, with no order as to costs.

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