2014 (3) TMI 1096 - HC - Customs

Writ of habeas corpus - Detention order - Jurisdiction of Court to entertain the appeal - proceedings under COFEPOSA - detenu was absconding and evading detention - Held that - Since the detention order stands executed as of now there cannot therefore exit any bar in considering the merits of the grounds of challenge urged by the detenu. The final consideration of the grounds urged is only after execution of the detention order as prayed by the Detaining Authority. The respondents could not show any binding precedent where the Courts have refused to consider the challenge of a detenu in a habeas corpus petition after execution of the detention order merely because challenge was unsuccessful at pre- execution stage. Even otherwise the main ground of absolute casualness even after judgement dated 16.7.2013 was not raised earlier by the detenu. This Court cannot permit the Authorities to take shelter under such technical pleas in a writ petition filed challenging preventive detention order. Territorial jurisdiction - Held that - merely because respondents No.5 pursuant whereto the detenu may be released we are of the opinion that a part of the cause of action has arisen within the jurisdiction of this Court and as such the writ application is maintainable. The Detaining Authority was in fact granted ample opportunity and it could have filed a proper affidavit in a responsible manner dealing with the case on merits as well. However the Detaining Authority chose not to file any proper affidavit dealing in details with the merits of the case - the prayer for quashing of the impugned detention order No.PSA1200/85/SPL3(A) dated 12.3.2001 executed upon the detenu Nitesh Ashok Sadarangani is allowed - appeal allowed.

Summary

Issues Involved:
1. Bar on considering grounds of challenge post earlier rejection.
2. Territorial jurisdiction of the Court.
3. Failure to serve detention order post-Supreme Court judgment.
4. Relevance of recourse to ordinary punitive law in preventive detention.

Detailed Analysis:

1. Bar on Considering Grounds of Challenge Post Earlier Rejection:
The Court found no merit in the respondents' claim that the grounds of challenge could not be reconsidered post earlier rejection by the Supreme Court and Bombay High Court. The previous rejections were at the pre-execution stage. Since the detention order was now executed, the Court could consider the merits of the grounds of challenge. The Court emphasized that there is no binding precedent preventing the consideration of a habeas corpus petition post-execution merely because of earlier unsuccessful pre-execution challenges. The main ground of casualness post-16.7.2013 was not raised earlier by the detenu, thus permitting the Court to consider it now.

2. Territorial Jurisdiction of the Court:
The Court held that it had territorial jurisdiction to entertain the petition. The detenu had a residence in Gurgaon, Haryana, and part of the cause of action, including the service of the detention order, occurred within the jurisdiction of this Court. The Court referenced several precedents, including Umed Mal vs. Union of India and others, supporting the view that the factual detention of a person at a particular place supplies cause of action for challenging the detention. The objections raised by the respondents regarding jurisdiction were rejected based on consistent judicial views and the specific facts of the case.

3. Failure to Serve Detention Order Post-Supreme Court Judgment:
The Court noted that even after the Supreme Court's judgment on 16.7.2013, no effort was made to serve the detention order on the detenu. The Sponsoring Authority and Detaining Authority failed to seek cancellation of bail or prevent the detenu from traveling abroad. The Court found absolute casualness and lack of coordination between the authorities. This laxity and casualness vitiated the detention order. The Court referenced precedents such as A.Mohammed Farook vs. Jt. Secy. To G.O.I. and others, where similar failures to serve detention orders led to quashing.

4. Relevance of Recourse to Ordinary Punitive Law in Preventive Detention:
The Court found that the Detaining Authority failed to consider the factual position regarding recourse to ordinary punitive law. The grounds of detention did not reflect any satisfaction concerning the initiation of prosecution against the detenu. The Court held that the Detaining Authority must inquire about the status of prosecution proceedings and record its satisfaction regarding the sufficiency of ordinary criminal law before resorting to preventive detention. The failure to do so indicated non-application of mind, vitiating the detention order. The Court cited cases like Rekha vs. State of Tamil Nadu, emphasizing the necessity of considering ordinary law before preventive detention.

Conclusion:
The Court quashed the impugned detention order No.PSA1200/85/SPL3(A) dated 12.3.2001 and ordered the immediate release of the detenu. The Court criticized the laxity and casualness of the authorities and emphasized the importance of procedural safeguards in preventive detention matters.