2015 (1) TMI 980 - HC - Customs

Validity of detention order - Recovery of banned substances - Detention order of co-accused not confirmed however, that of appellant were confirmed - Held that - in Deepak Bajaj (2008 (11) TMI 655 - SUPREME COURT), a two Judge Bench decision stated that the five grounds outlined in Alka Gadia (1990 (12) TMI 216 - SUPREME COURT OF INDIA) are only illustrative and not exhaustive . The Court in Deepak Bajaj (supra) then proceeded to consider the challenge - on the merits of the detention order. This Court is of the opinion, with due deference that the rather elaborate reasoning in Alka Gadia (supra) preceding the very limited number of exceptions mentioned in that judgment cannot be said to have been expanded in Deepak Bajaj (supra), since in the latter case, firstly, no exceptional feature is discussed, and, secondly - rather more importantly - the judgment was by two Judges. The observations in Deepak Bajaj (supra) with respect, cannot be taken as having changed the rule and principle in Alka Gadia (supra). Court does not perceive any facts which would fall within the exception spelt out in Alka Gadia (supra) compelling a merits consideration of the impugned detention order that has not been served upon the petitioner. Consequently, this Court declines to entertain this petition, which is dismissed. - Decided against appellant.

Summary

Issues:
Challenge to detention order's validity and enforceability.

Analysis:
The petitioner sought a declaration that the detention order against him was void and unenforceable. The facts revealed that the petitioner was arrested in connection with narcotics and psychotropic substances. The detention order against the petitioner was confirmed, unlike his co-accused. The petitioner argued that the detention order should be quashed due to the non-confirmation of orders against his co-accused. The petitioner relied on legal precedents to support the argument that the court's power under Article 226 is not limited by the execution of a preventive detention order. The petitioner contended that the detention order was legally unsustainable. However, the court noted that the detention order against the petitioner was confirmed, unlike his co-accused whose orders were revoked. The petitioner also cited cases where unexecuted detention orders were quashed, but the court found those cases not applicable to the current situation. The petitioner emphasized that challenges against preventive detention orders should be entertained even at the pre-detention stage, citing legal judgments to support this argument.

The court referred to previous judgments outlining limited circumstances in which challenges against preventive detention orders could be entertained before execution. The court emphasized that such extraordinary powers should be used sparingly and only when no other efficacious remedy is available. The court noted that the petitioner's bail had been cancelled, and he had not surrendered, which impacted his credibility before the court. The court found no exceptional circumstances compelling a merits consideration of the detention order that had not been served on the petitioner. Consequently, the court declined to entertain the petition and dismissed it. The court highlighted that the petitioner's conduct of evading the law and not surrendering despite the cancellation of his bail further disentitled him from seeking relief from the court. The court, therefore, found no grounds to interfere with the impugned order and dismissed the writ petition accordingly.