1977 (3) TMI 179 - HC - Customs

Summary

Issues Involved:
1. Validity of detention orders passed against persons outside India.
2. Applicability of the Presidential Order under Article 359(1) to these petitions.
3. Whether the petitioners can be considered as absconding or concealing themselves.
4. Requirement for the Magistrate to form an independent opinion under Section 82 of the Criminal Procedure Code.

Detailed Analysis:

1. Validity of Detention Orders Passed Against Persons Outside India:

The petitioners challenged the detention orders issued under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, arguing that the Act does not have extra-territorial application. The court examined Section 6 of the Act, which states that detention orders cannot be invalidated merely because the person sought to be detained or the place of detention is outside the territorial jurisdiction of the authority issuing the order. The court held that the Parliament has the power to make laws with extra-territorial operation under Article 245(2) of the Constitution. It concluded that Section 6 of the Act empowers the detaining authorities to pass detention orders against persons residing outside India, including foreigners, thus upholding the validity of the detention orders.

2. Applicability of the Presidential Order Under Article 359(1) to These Petitions:

The State argued that the petitions challenging the detention orders indirectly could not be maintained due to the Presidential Order under Article 359(1), which suspends the enforcement of fundamental rights during an emergency. The court noted that the Supreme Court in A.D.M. Jabalpur v. S. Shukla held that the Presidential Order bars courts from entertaining petitions for the enforcement of fundamental rights. However, the court distinguished the present case, stating that the petitioners were not seeking to enforce their personal liberty but were challenging the proclamations affecting their property rights. Therefore, the court held that the petitions were maintainable as they did not fall within the scope of the Presidential Order.

3. Whether the Petitioners Can Be Considered as Absconding or Concealing Themselves:

The petitioners argued that they had left India before the detention orders were passed and could not be considered as absconding or concealing themselves. The court observed that the petitioners had families in India and would have been informed about the detention orders. It presumed that the petitioners were aware of the orders and continued to remain abroad to avoid execution. The court referred to judicial definitions of "absconding" and concluded that the petitioners' continued absence from India with knowledge of the detention orders amounted to absconding.

4. Requirement for the Magistrate to Form an Independent Opinion Under Section 82 of the Criminal Procedure Code:

The petitioners contended that the Magistrate did not form an independent opinion before issuing the proclamations under Section 82 of the Criminal Procedure Code. The court acknowledged that the Magistrate must have a "reason to believe" that the person has absconded or concealed themselves. However, it found that the Magistrate had entertained a reasonable belief based on the materials before him. The court also noted that the petitions were filed under the revisional jurisdiction, which is discretionary, and it was not bound to interfere with the proclamations merely because the Magistrate relied on the State Government's satisfaction without an independent inquiry. The court held that there were sufficient materials to support the belief that the petitioners had absconded or concealed themselves.

Conclusion:

The court dismissed the petitions, upholding the validity of the detention orders and the proclamations issued under Section 82 of the Criminal Procedure Code. It held that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, has extra-territorial application, and the Presidential Order under Article 359(1) did not bar the petitions challenging the proclamations affecting property rights. The court also concluded that the petitioners were absconding and that the Magistrate had a reasonable belief to issue the proclamations.