2009 (5) TMI 897 - HC - Customs

Summary

Issues involved: Challenge to detention orders at pre-execution stage.

Issue 1: Detention orders challenged at pre-execution stage
The writ petition challenged detention orders at the pre-execution stage for the petitioners, Diwakar Gupta and Amit Kohli, related to illegal trading of psychotropic substances. The detaining authority considered this activity as falling under "illicit traffic" as per the PIT-NDPS Act. However, the substances involved were not listed in Schedule-I of the NDPS Rules. A previous judgment in a similar case found that export of these substances did not constitute illicit traffic, leading to the setting aside of detention orders. The present petitioners' case was deemed virtually identical to that of co-accused individuals whose detention orders were already set aside post-execution.

Issue 2: Precedent and legality of detention orders
Counsel for the petitioners cited a Supreme Court decision emphasizing that if a detention order is clearly illegal, the individual should not be compelled to go to jail. The Supreme Court's ruling clarified that the grounds for challenging a detention order at the pre-execution stage were illustrative, not exhaustive. Considering the similarity of the present case to the previous judgment where detention orders were found to be illegal, the High Court deemed it futile to enforce the detention orders for the petitioners. Therefore, the court directed the setting aside of the detention orders for Diwakar Gupta and Amit Kohli, following the precedent set in the case of Rajesh Sharma and Nafe Singh.

Issue 3: Disclosure of detention orders
Initially, the detention orders for the petitioners were not on record, but were later provided by the petitioners themselves. The Additional Solicitor General raised concerns about how the petitioners obtained these orders without being served. The petitioners assured they could explain the circumstances, leading to the filing of an affidavit providing some explanation. The court decided not to comment on the explanation given and left it to the respondents to investigate further.

In conclusion, the High Court set aside the detention orders for the petitioners, Diwakar Gupta and Amit Kohli, at the pre-execution stage, based on the precedent established in a similar case where detention orders were found to be illegal. The court also addressed the issue of the petitioners obtaining the detention orders before being served and left it to the respondents to investigate the circumstances.