2014 (3) TMI 1098 - HC - Customs

Writ of habeas corpus - Detention order - Jurisdiction of Court to entertain the appeal - proceedings under COFEPOSA - non-placement before the Detaining Authority of vital documents having a bearing on the subjective satisfaction, non-consideration and non-advertence thereto in the grounds of detention by the Detaining Authority - Held that - in the instant petition, challenge to the impugned detention orders was not considered at pre-execution stage and the petitioners were compelled to surrender to the detention orders. Since the detention orders stand executed as of now, there cannot, therefore, exist any bar in considering the merits of the grounds of challenge urged by the petitioners. The final consideration of the grounds urged is only after execution of the detention orders. Respondents could not show any binding precedent where the Courts have refused to consider the challenge of a detenu in a writ petition despite the execution of the detention order merely because challenge was unsuccessful at pre- execution stage. Even otherwise, the main ground of non-placement, non- consideration and non-advertence to vital documents was not decided earlier on merits in the absence of requisite grounds and documents relied upon. This Court cannot permit the Authorities to take shelter under such technical pleas in the matter of a writ petition in a preventive detention matter. Territorial jurisdiction - Held that - the petitioners have also a residence in Karnal in the State of Haryana. Their father resides in Karnal. Their birth place, as evident from their passports, is also Karnal. It is not denied that the attempt to serve the detention order was made at Karnal. The Detaining Authority deputed its representative for the purpose of service of detention order and grounds upon the petitioners in the jurisdiction of this Court and thereupon, the detention orders and grounds were served upon them in the jurisdiction of this Court, albeit after the orders of this Court. The petitioners were thus detained in the jurisdiction of this Court. Therefore, I hold that merely because the respondents have doubts on the bona-fides of the petitioners in invoking jurisdiction of this Cout, it cannot be said that no part of cause of action has arisen in the jurisdiction of this Court, to consider the challenge to the detention orders, muchless after its execution in the jurisdiction of this Court by compelling the petitioners to surrender to the respective detention orders. There cannot be any criminal prosecution under FEMA in the absence of any statutory provision for the same. Although consideration of the possibility of adjudication proceedings is reflected in the grounds of detention, however, consideration of the possibility of criminal prosecution of the petitioners under other ordinary laws of land is not even reflected in the grounds of detention. This infirmity alone is sufficient to vitiate the detention orders. The prayer for quashing of the impugned orders of detention Nos. bearing F. No. 673/09/2010-CUS.VIII dated 2nd June, 2010 and F. No. 673/10/2010-CUS.VIII dated 2nd June, 2010, which were executed upon the petitioners, is allowed and the impugned detention orders against the petitioners are quashed and set aside - petition allowed - decided in favor of petitioner.

Summary

Issues Involved:
1. Maintainability of the challenge at pre-execution stage.
2. Territorial jurisdiction of the Court.
3. Alternative remedy before the Advisory Board.
4. Non-placement and non-consideration of vital documents by the Detaining Authority.
5. Validity of the impugned detention orders.

Issue-wise Detailed Analysis:

1. Maintainability of the Challenge at Pre-execution Stage:
The Court found strong merit in the objections regarding the maintainability of the challenge at pre-execution stage based on the Full Bench judgment cited by the respondents. The Court held that since the Hon'ble Supreme Court and this Court had earlier refused to exercise jurisdiction to quash the impugned orders at pre-execution stage, this Court was also not inclined to entertain the challenge to the detention orders at pre-execution stage. The prayer for considering the validity of the impugned detention orders at pre-execution stage was thus rejected.

2. Territorial Jurisdiction of the Court:
The Court held that the petitioners have a residence in Karnal, Haryana, and their detention orders were served within the jurisdiction of this Court. The Court found that a part of the cause of action had arisen in the jurisdiction of this Court, making the petition maintainable. The Court cited various precedents where similar facts constituted part of the cause of action within the territorial jurisdiction of the concerned High Court.

3. Alternative Remedy Before the Advisory Board:
The Court rejected the respondents' contention that the writ petition was not required to be considered due to the alternative remedy available before the Advisory Board. The Court cited judgments of the Hon'ble Supreme Court, which held that a writ petition under Article 32 or 226 is maintainable even if a representation is pending before the Advisory Board. The Court proceeded to dispose of the writ petition on merits.

4. Non-placement and Non-consideration of Vital Documents:
The Court found that several vital documents, including complaints and court proceedings, were not placed before the Detaining Authority. These documents had a direct bearing on the subjective satisfaction of the Detaining Authority. The Court held that non-placement of these vital documents was fatal to the detention orders, as it indicated non-application of mind by the Detaining Authority. The Court cited several precedents where non-placement of relevant documents led to the quashing of detention orders.

5. Validity of the Impugned Detention Orders:
The Court found another fatal infirmity in the detention orders, noting that there cannot be any criminal prosecution under FEMA in the absence of any statutory provision for the same. The Court observed that the possibility of criminal prosecution under ordinary laws was not considered in the grounds of detention. The Court held that taking recourse to preventive detention as a substitute for ordinary punitive law would be contrary to constitutional guarantees. The Court quashed the impugned detention orders and set the petitioners at liberty.

Conclusion:
The Court quashed the impugned detention orders against the petitioners, finding that the non-placement of vital documents before the Detaining Authority and the failure to consider the possibility of criminal prosecution under ordinary laws vitiated the detention orders. The petitioners were released forthwith from custody.