2015 (5) TMI 1041 - HC - Customs

Order of detention at the pre-execution stage - Petitioner deliberately evaded arrest and absconded after getting summons issued by the Superintendent - Whether the petitioner was available in India - Petitioner submitted that even if the he arrived at Calcutta or Srinagar or any other place in India, it should be taken that he was available in India. Also the freedom of the citizen is paramount and his freedom cannot be denied on the mere fact that he had gone abroad. Held that - failure to appear without reasonable excuse would be an offence which would render the defaulter liable for punishment of imprisonment. A citizen who has evaded the process of law shall not be heard to say that his fundamental rights are in jeopardy. The law -breaker is not entitled to take advantage of his own contumacious conduct and claim protection of the freedom. The submission made by the learned counsel for the petitioner that even if the person concerned arrives at any part of India, it should be taken that he was available at the place, cannot be taken as a ground for challenging the order of detention at its pre -execution stage. That is a matter to be considered after the order of detention is executed and the facts are analysed and considered on the basis of the documentary and other material evidence. The individual liberty of a citizen when pitted against the economic security of the country, we have no doubt that the latter shall prevail. The challenge to the order of detention at its pre -execution stage can be entertained only in exceptional circumstances and for cogent reasons and not on the grounds which probably the detenu may be able to sustain while considering the challenge to the order of detention after its execution. Therefore, the petitioner has not made out any exceptional reason to justify the challenge against Ext. P4 order of detention at its pre -execution stage. - Decided against the petitioner

Summary

Issues Involved:
1. Maintainability of the Writ Petition at the pre-execution stage.
2. Right to obtain a copy of the detention order before execution.
3. Validity of the detention order under the COFEPOSA Act.
4. Delay in executing the detention order and its implications.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition at the pre-execution stage:
The petitioner initially challenged the detention order through his father-in-law, but the court raised an objection regarding the maintainability of the petition by someone other than the person against whom the order was issued. Consequently, the petitioner himself filed a writ petition, making the earlier petition infructuous.

2. Right to obtain a copy of the detention order before execution:
The petitioner obtained a copy of the detention order under the Right to Information Act, which was disputed by the respondents. The court referenced the Supreme Court's decision in Subhash Popatlal Dave v. Union of India, which held that the grounds for detention need to be served only after detention, and the Right to Information Act does not apply to preventive detention cases at the pre-execution stage. Additionally, the court cited Mariamma Antony v. State of Kerala, which stated that a person against whom a detention order is passed is not entitled to receive a copy of the order or the grounds for detention before execution.

3. Validity of the detention order under the COFEPOSA Act:
The court reiterated that a person against whom a detention order is issued under Section 3 of the COFEPOSA Act is not entitled to a copy of the order or related documents before execution. The Supreme Court in Alka Subhash Gadia and Subhash Popatlal Dave cases held that an order of detention can be challenged at its pre-execution stage but not on the grounds of not receiving the detention order beforehand. The COFEPOSA Act allows for the execution of detention orders anywhere in India, and the constitutional provisions under Article 22 exclude the necessity of informing the grounds of arrest for preventive detention laws.

4. Delay in executing the detention order and its implications:
The petitioner argued that the delay of ten years in executing the detention order rendered it invalid. However, the court noted that the petitioner had evaded arrest and absconded, as evidenced by the returned summons and the petitioner's travel records. The Supreme Court in Subhash Popatlal Dave's case emphasized that long delays due to the detenu's evasion do not invalidate the detention order. The court also referenced Bhawarlal Ganeshmalji v. State of Tamil Nadu and Union of India v. Arvind Shergill, which held that the delay caused by the detenu's conduct strengthens the link between the detention order and its purpose.

The court concluded that the petitioner deliberately evaded arrest and absconded, and thus, the challenge to the detention order at the pre-execution stage was not justified. The petitioner's argument that his presence in India, irrespective of the specific location, should suffice for challenging the order was rejected. The court emphasized that individual liberty must be balanced against the economic security of the country, and in this case, the latter prevails. The writ petitions were dismissed for lack of merit.

Conclusion:
The court dismissed the writ petitions, holding that the petitioner had not made out any exceptional reason to justify the challenge against the detention order at its pre-execution stage. The petitioner's evasion and absconding behavior invalidated his claims, and the delay in executing the order did not render it invalid.