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passed on 10.9.2013 - Non availability of relevant documents - detention order of the co-accused persons have already been revoked - Held that - Based on the averments made in the counter affidavit and the supporting documents to show the publication and citation under Section 82 of the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 & 28.2.2014 under Section 8 (1) (a) of PIT NDPS Act before the Ld. CMM, New Delhi. On 14.3.2014, the Ld. CMM, New Delhi passed orders for issuing process under Section 82 of the Code of Criminal Procedure qua the petitioner. The process under Section 82 of the Code of Criminal Procedure was published in Indian Express dated 22.5.2014. The said order under Section 82 of the Code of Criminal Procedure qua the petitioner was repeated on 28.5.2014, returnable on 30.8.2014. The process under Section 82 Cr.P.C. was published in Indian Express dated 9.8.2014. The said process under Section 82 of the Code of Criminal Procedure qua the petitioner was again repeated on 2.9.2014. A careful reading of the judgments of Rajinder Arora 2006 (3) TMI 173 - SUPREME COURT OF INDIA and Subhash Popatlal Dave (2013 (8) TMI 8 - SUPREME COURT) leads to the conclusion that a writ petition at the pre-existing stage or pre-execution of the detention order stage is maintainable, and the Courts are entitled to examine all grounds except the ground relating to sufficiency of material relied upon by the detaining authorities in passing the order of detention, which has been held to be legally the most important aspect of the matter, but cannot be gone into by the Court at the pre-execution stage when the grounds of detention have not even been served on the detenu. The counter affidavit is bereft of any explanation with regard to delay in passing the detention order dated 10.9.2013. The matter has been adjourned from time to time, but no additional affidavit has been filed nor any record has been produced to explain the delay in passing the detention order - entertaining a writ petition against a preventive detention order at a pre-execution stage should be an exception and not the general rule. In this case also the petitioner has successfully evaded the service of the detention order. The Apex Court of India in the case of Deepak Bajaj (2008 (11) TMI 655 - SUPREME COURT) has held that the celebrated writ of habeas corpus has been described as a great constitutional privilege of the citizen or the first security of civil liberty ; 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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