2008 (2) TMI 923 - HC - Customs

Maintainability of petition - Jurisdiction - the order of detention is shown to have been passed at Gandhinagar (Gujarat). However, the petitioner has come up with a plea that it is being sought to be executed at Ludhiana, where he is residing - Held that - A person, whose fundamental right to life and liberty is threatened, has every right to approach the Court where any such authority, in the garb of an order of detention, seeks to curtail such life and liberty - the contention that this Court has no jurisdiction to entertain this petition is negated. The prayer as made by the petitioner for quashing of the detention order, which is not on record, cannot be answered in his favour. Petition dismissed.

Issues Involved:
1. Jurisdiction of the High Court to entertain the petition.
2. Maintainability of the writ petition at the pre-execution stage.
3. Inordinate delay in passing the detention order.
4. Non-application of mind in passing the detention order.
5. Detention order being beyond the scope of the Act.
6. Detention order based on vague and extraneous considerations.
7. Discriminatory nature of the detention order.

Detailed Analysis:

1. Jurisdiction of the High Court to Entertain the Petition:
The Court first addressed the question of jurisdiction, which is crucial to the matter. Section 4 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act) allows for the execution of detention orders at any place in India. The petitioner argued that since the order was being executed in Ludhiana, where he resides, the Punjab and Haryana High Court has jurisdiction. The Court cited previous judgments (D.N. Anand vs. Union of India, Tirlok Nath Mittal vs. Union of India, and Mrs. Arvind Shergill vs. Union of India) to support the view that jurisdiction is valid if the detention order is to be executed within the Court's territorial limits. Thus, the Court negated the respondents' contention that it lacked jurisdiction.

2. Maintainability of the Writ Petition at the Pre-Execution Stage:
The respondents argued that the writ petition was not maintainable at the pre-execution stage. However, the Court referred to the Supreme Court's judgment in Additional Secretary to the Government of India vs. Smt. Alka Subhash Gadia, which allows judicial review of detention orders at the pre-execution stage under limited circumstances, such as the order being passed on vague, extraneous, and irrelevant grounds. Thus, the Court found the petition maintainable.

3. Inordinate Delay in Passing the Detention Order:
The petitioner contended that there was an inordinate delay in passing the detention order, which vitiated its legality. The Court noted that the detention order was passed on 5.3.2004, following a series of investigations and statements recorded in 2000 and 2001. The delay was attributed to the thorough deliberations and procedural requirements. The Court did not find the delay to be inordinate or fatal to the validity of the order.

4. Non-Application of Mind in Passing the Detention Order:
The petitioner argued that the detention order was passed without proper application of mind. The Court examined the detailed investigation and the statements recorded, which implicated the petitioner in duty evasion and smuggling activities. The Court found that the detaining authority had applied its mind based on the evidence and circumstances presented.

5. Detention Order Being Beyond the Scope of the Act:
The petitioner claimed that the detention order was beyond the scope of Section 3(1) of the Act. The Court reviewed the grounds for detention, which included preventing the petitioner from engaging in smuggling activities. The Court held that the order was within the scope of the Act, as it aimed to prevent activities detrimental to the conservation of foreign exchange and prevention of smuggling.

6. Detention Order Based on Vague and Extraneous Considerations:
The petitioner alleged that the detention order was based on vague and extraneous considerations. The Court scrutinized the grounds for detention, which were supported by specific evidence and statements. The Court found the grounds to be clear, relevant, and specific, dismissing the petitioner's claim of vagueness and extraneous considerations.

7. Discriminatory Nature of the Detention Order:
The petitioner argued that the detention order was discriminatory as it was not passed against similarly situated persons. The Court noted that the petitioner's involvement was significant and central to the illegal activities, justifying the specific action against him. The Court did not find any discriminatory intent or action in the detention order.

Conclusion:
The Court dismissed the petition, holding that it had jurisdiction to entertain the petition, the writ petition was maintainable at the pre-execution stage, and the detention order was valid, within the scope of the Act, and based on relevant and specific grounds. The Court found no merit in the claims of inordinate delay, non-application of mind, vagueness, extraneous considerations, or discrimination.

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