2015 (9) TMI 1260 - HC - Customs

Quashing of detention orders - Non execution of detention order - activities of acquiring possessing hoarding selling and exporting NDPS items - incident took place on 23/24.10.2011 whereas the detention order was passed on 10.9.2013 - Non availability of relevant documents - detention order of the co-accused persons have already been revoked - Held that - Based on the averments made in the counter affidavit and the supporting documents to show the publication and citation under Section 82 of the Code of Criminal Procedure we hold that the petitioner is an absconder and he has been intentionally evading the execution of the detention order. - As per the counter affidavit the officers of respondent no.3 made an attempt to execute the detention order at the Delhi premises of the petitioner on 18.9.2013 however the landlord informed the officers that the petitioner had left the premises long back. - despite publication of order dated 20.11.2013 the petitioner did not surrender; thereafter the respondents had no option but to file reports dated 8.1.2014 and has also held that it is a remedy to safeguard the liberty of the citizen which is a precious right and is not to be transgressed by anyone. In this case the liberty of the petitioner cannot be curtailed by sending him to jail when the detention order of co-accused persons who are identically placed as the petitioner stands revoked on the recommendation of the Advisory Board. - Revocation allowed.

Issues Involved:
1. Maintainability of the writ petition at the pre-execution stage.
2. Delay in executing the detention order.
3. Non-placement of vital documents before the detaining authority.
4. Similarity of the petitioner's case with co-accused whose detention orders were revoked.

Issue-wise Detailed Analysis:

1. Maintainability of the writ petition at the pre-execution stage:
The court first addressed whether the writ petition is maintainable at the pre-execution stage. It was concluded that such a petition is maintainable, but the power should be exercised sparingly. The court referenced the Supreme Court's decision in *Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia*, which identified five limited grounds where pre-execution challenges could be entertained. The court also referenced *Deepak Bajaj v. State of Maharashtra*, which clarified that these grounds are illustrative and not exhaustive, thus allowing broader grounds for challenging detention orders at the pre-execution stage. The court concluded that the writ petition is maintainable and a detenu may challenge the detention order at the pre-execution stage.

2. Delay in executing the detention order:
The petitioner argued that the detention order dated 10.9.2013 had not been executed despite the petitioner being available. The court found that the petitioner was an absconder, as evidenced by multiple failed attempts by authorities to execute the order and the issuance of process under Section 82 of the Code of Criminal Procedure. The court referenced *Subhash Popatlal Dave v. Union of India*, which held that an absconder cannot challenge the detention order on the ground of delay in execution. The court concluded that the petitioner, being an absconder, could not challenge the detention order based on the delay in its execution.

3. Non-placement of vital documents before the detaining authority:
The petitioner claimed that the sponsoring authority did not place vital documents before the detaining authority, which could have influenced the decision. The court, referencing *Subhash Popatlal Dave*, held that at the pre-execution stage, the court cannot examine the sufficiency of the material relied upon by the detaining authority. The court concluded that this ground could not be considered at the pre-execution stage.

4. Similarity of the petitioner's case with co-accused whose detention orders were revoked:
The petitioner argued that similar detention orders against co-accused Nilesh Shukla and Virender Singh were revoked due to undue delay, which snapped the live link between the incident and the detention order. The court referenced *Rajinder Arora v. UOI* and *Sumitra Dey Bhattacharya v. UOI*, which held that unexplained delays in passing detention orders could be grounds for quashing them. The court noted that the respondents did not provide any explanation for the delay in passing the detention order dated 10.9.2013. Given the revocation of the co-accused's detention orders and the lack of explanation for the delay, the court concluded that the petitioner's detention order should also be quashed.

Conclusion:
The court allowed the writ petition, quashed the detention order, and made the rule absolute, emphasizing that the petitioner's liberty should not be curtailed given the revocation of similar orders against co-accused and the unexplained delay in passing the detention order.

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