2012 (2) TMI 567 - HC - Customs

Summary

Issues Involved:
1. Maintainability of pre-execution challenge against preventive detention order.
2. Inordinate delay in the execution of the detention order.
3. Whether the proposed detenu was absconding.
4. Validity of the detention order based on a solitary incident.

Summary:

1. Maintainability of Pre-execution Challenge:
The court considered whether an order of preventive detention could be challenged at the pre-execution stage. It referred to the decisions in *Alka Subhash Gadia* and *Deepak Bajaj*, concluding that pre-execution challenges are maintainable in exceptional cases. The court upheld the contention that a pre-execution challenge against a preventive detention order is maintainable in exceptional cases, rejecting the respondents' argument that the legality of the detention order could only be considered post-execution.

2. Inordinate Delay in Execution:
The court examined the delay in executing the detention order dated 27.8.2008, which remained unexecuted for more than three years. It noted that despite the proposed detenu's regular court appearances and the respondents' failure to provide a proper explanation for the delay, the detention order had not been executed. The court found that the delay indicated a lack of genuine satisfaction regarding the necessity of immediate detention, thereby snapping the live and proximate link between the grounds of detention and its purpose.

3. Whether the Proposed Detenu was Absconding:
The court evaluated the respondents' claim that the proposed detenu was absconding. It noted that the proposed detenu had been appearing before courts in Chandigarh and was arrested on 24.7.2011 in execution of a warrant issued by the Special Court, NDPS Act cases, Vadakara. The court concluded that the proposed detenu was not absconding and that the respondents' efforts to execute the detention order were feeble and insufficient.

4. Validity of the Detention Order Based on a Solitary Incident:
The court considered the petitioner's contention that the detention order was based on a solitary incident without previous prejudicial activities. The court noted that the respondents did not refute this contention. It concluded that the order of detention was issued either with a wrong purpose or on vague grounds, making it unsustainable.

Conclusion:
The court quashed the detention order dated 27.8.2008 u/s 3(1) of the PITNDPS Act, as the inordinate delay in its execution, lack of proper explanation, and absence of good reasons rendered it ineffective. The writ petition was allowed, and the detention order was quashed.