2009 (2) TMI 810 - HC - Customs

Execution of detention order - the said detention order has remained unexecuted mainly for the reason that the proposed detenu has remained outside India - whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it?

Issues Involved:
1. Maintainability of the writ petition challenging the detention order at the pre-execution stage.
2. Whether the detention order has lost its relevance due to the passage of time and lack of prejudicial activities by the proposed detenu.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition:
The primary issue was whether the writ petition challenging the detention order at the pre-execution stage was maintainable. The petitioner argued that the writ petition was maintainable, even at the pre-execution stage, under certain circumstances, as supported by several Supreme Court decisions. The respondents countered that the writ petition was not maintainable since the detention order had remained unexecuted, relying on the decision in Alka Gadia (1992 Supp (1) SCC 496) and other cases.

The court examined the conflicting views in various Supreme Court decisions on whether the five exceptions mentioned in Alka Gadia were exhaustive or illustrative. The court noted that some decisions, such as N.K. Bapna (1992) 3 SCC 512 and Subhash M. Gandhi (1994) 6 SCC 14, suggested that the exceptions were exhaustive. In contrast, other decisions, including Deepak Bajaj (WP(Crl) 77/2008) and Maqsood Yusuf Merchant (Crl. A. 1337/2008), indicated that the exceptions were illustrative.

The court concluded that the five situations mentioned in Alka Gadia were illustrative and not exhaustive, following the reasoning in Deepak Bajaj. The court emphasized that the High Court has the power to entertain grievances against detention orders at the pre-execution stage in proper cases, even beyond the five situations mentioned in Alka Gadia.

2. Relevance of the Detention Order:
The second issue was whether the detention order had lost its relevance due to the passage of time and the lack of prejudicial activities by the proposed detenu. The petitioner argued that the detention order, issued on 17.08.2001, had lost its relevance by 2009, as there had been no allegation of prejudicial activity by the proposed detenu during the intervening period. The petitioner cited the ground that there was no live link and nexus justifying the execution of the detention order.

The respondents contended that the live link and nexus for executing the detention order had not been snapped, emphasizing that the proposed detenu had concealed himself in a foreign country, making it unverifiable whether he had indulged in prejudicial activities.

The court referred to the decision in Maqsood Yusuf Merchant, where the Supreme Court observed that the continuation of a detention order, which had not been executed for several years and where the proposed detenu had not indulged in similar activities during that period, would be an exercise in futility. Applying this reasoning, the court found that there was no evidence of the proposed detenu indulging in prejudicial activities for over seven years since the detention order was issued. The court concluded that the live link between the prejudicial activities and the purpose of detention had snapped due to the passage of time.

Conclusion:
The court held that the writ petition was maintainable at the pre-execution stage, even in circumstances other than those mentioned in Alka Gadia. The court also found that the detention order had lost its relevance due to the lack of prejudicial activities by the proposed detenu for over seven years. Consequently, the court directed that the detention order should not be given effect to any further, allowing the writ petition to the extent indicated. The court clarified that this order would not prevent the respondents from continuing with their prosecution or launching fresh prosecutions against the proposed detenu for his alleged wrongs.

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