2008 (5) TMI 689 - HC - Customs

Issues Involved:
1. Parameters within which the Writ Court can provide protection at the pre-execution stage of preventive detention orders.
2. Territorial jurisdiction of the High Court.
3. Delay in the passing and execution of preventive detention orders.
4. Validity of the detention order based on the grounds of over-invoicing and abetment.
5. Impact of the Settlement Commission's order on the preventive detention order.
6. Applicability of Section 188 of the Criminal Procedure Code to offences committed outside India.

Issue-wise Detailed Analysis:

1. Parameters within which the Writ Court can provide protection at the pre-execution stage of preventive detention orders:
The Court highlighted the five exceptions from the case of *Addl. Secy. to the Govt. of India v. Alka Subhash Gadia* under which courts may interfere with detention orders at the pre-execution stage: (i) the order is not passed under the relevant Act, (ii) it is executed against the wrong person, (iii) it is passed for a wrong purpose, (iv) it is based on vague, extraneous, or irrelevant grounds, or (v) the authority lacked the power to pass the order. The Court emphasized that these exceptions are exhaustive and must be strictly adhered to.

2. Territorial jurisdiction of the High Court:
The Court addressed the objection regarding territorial jurisdiction, noting that the Union Government's presence throughout India does not allow a litigant to choose any court arbitrarily. The significant part of the cause of action should arise within the territorial jurisdiction of the chosen court. The Court referenced *Kusum Ingots and Alloys Ltd. v. Union of India* and other cases to clarify that the doctrine of forum conveniens should guide the exercise of jurisdiction. The Court concluded that while the Bombay High Court would be the appropriate forum, it would still proceed with the case due to the limited nature of arguments permissible at the pre-execution stage.

3. Delay in the passing and execution of preventive detention orders:
The Court rejected the argument of inordinate delay, citing *Sunil Fulchand Shah v. UOI* and other cases, which established that the validity of a detention order is determined at the time of its passing, not by subsequent events. The Court noted that any delay orchestrated by the petitioner himself would not entitle him to relief.

4. Validity of the detention order based on the grounds of over-invoicing and abetment:
The Court examined the Settlement Commission's order and found that the petitioner was involved in over-invoicing, which is a violation of the Customs Act. The Court disagreed with the Commission's reasoning that the petitioner could not be penalized for acts committed outside India, emphasizing that abetment of an offence committed in India can attract liability. The Court referenced *Union of India v. Sampat Raj Duggar* to support its conclusion.

5. Impact of the Settlement Commission's order on the preventive detention order:
The Court noted that the Settlement Commission had granted immunity from penalty but not from prosecution. The Court clarified that preventive detention is distinct from prosecution and penalty proceedings, and the Settlement Commission's order did not affect the validity of the detention order.

6. Applicability of Section 188 of the Criminal Procedure Code to offences committed outside India:
The Court discussed Section 188, which deals with offences committed outside India, and concluded that abetment of an offence committed within India by a person outside India can be prosecuted under this section. The Court referenced *Ajay Agarwal v. Union of India* to support its interpretation.

Conclusion:
The Court dismissed the petitions, finding that the petitioners had not established any of the Gadia exceptions to warrant interference at the pre-execution stage. The Court emphasized the narrow scope of judicial review in such cases and refrained from imposing costs on the petitioners.

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