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2020 (5) TMI 589 - HC - CustomsApplication for amendment of petition - petitioner seeks permission to amend the petition so as to include a challenge the notification bearing no. S.O. 1119(E) dated 17.03.2020 issued by the Joint Secretary to the Government of India - COFEPOSA Act - HELD THAT - Perusal of Section 7 of COFEPOSA shows that the said provision enables the appropriate Government to take action in terms of the said provision in respect of a person against whom a detention order has been made. The pre-requisite for the Government to exercise the power under the said provision is that the proposed detenue has absconded or is concealing himself, as a result whereof the order cannot be executed. Besides, the appropriate Government should have a reason to believe that the situation meets the criteria for resorting to Section 7 of the Act. Merely because the aforesaid provision stipulates that failure to comply with directions issued by the Government would amount to a separate and distinct offence, it does not necessarily mean that the challenge to a notification under the said provision has to be categorically by way of a separate and a distinct petition. The detention order would be quashed and the consequential proceedings which have been initiated under Section 7 of the Act, on account of non-compliance, would continue to survive. Contravention of section 7 may be a separate offence contemplated under the Act, requiring independent consideration, but the substantive question before us at this stage is not whether the same deserves to be quashed or not - since the proceedings under Section 7 of the Act emanate from the detention order, the proper recourse is to allow the petitioner to impugn the same along with the main petition. Another crucial aspect of Section 7 flows from the verdict of the apex court dealing with the scope of jurisdiction of the Court while entertaining a petition challenging the detention order at a pre-execution/pre-arrest stage. In the case of ADDL. SECRETARY TO GOVT. OF INDIA VERSUS ALKA SUBHASH GADIA 1990 (12) TMI 216 - SUPREME COURT the Supreme Court has emphasized that while the court has the power to interfere with the detention order even at the pre-execution stage, but they are not obliged to do so nor will it be proper for them to do, save in exceptional cases. The discretion of the Court has to be exercised judicially on well settled principles and the detenu cannot claim such exercise of power as a matter of right. In a situation where the proposed detenu is an absconder, the Court while entertaining a petition at the pre-execution stage, would have to exercise extra caution and take his conduct into consideration. At the same time, the petitioner can demonstrate that the respondents have failed to exhibit earnestness in taking an action under section 7 of the Act. Indeed, in the present case, the petitioner has alleged that the action of the respondents is an act of malice in law. Notification under Section 7 of the Act and the facts and circumstances leading to its issuance, would have a bearing on the petitioner s challenge to the detention order one way or the other. The proposed amendments would not entirely change the scope of the main petition. Even if it did, it is settled law that the principle of constructive res judicata does not apply to petitions alleging violation of Article 21 of the Constitution. The petitioner is directed to place the amended writ petition incorporating the grounds and the prayer within a period of three days from today with an advance copy to the respondents - application allowed.
Issues Involved:
1. Maintainability of the writ petition at the pre-execution stage. 2. Legality of the detention order under Section 3(1) of the COFEPOSA Act. 3. Validity of the notification under Section 7(1)(b) of the COFEPOSA Act. 4. Amendment of the writ petition to include additional grounds and reliefs. Issue-wise Detailed Analysis: 1. Maintainability of the writ petition at the pre-execution stage: The respondents argued that the writ petition challenging the detention order at the pre-execution stage is not maintainable, citing Supreme Court precedents such as Additional Secretary to the Govt. of India and Ors. Vs. Smt. Alka Subhash Gadia and Subhash Popat Lal Dave v Union of India. The court noted that while the Supreme Court has restricted interference at the pre-execution stage to exceptional cases, the petitioner's case involved issues of personal liberty, which warranted judicial scrutiny. The court emphasized that the petitioner's personal liberty cannot be compromised and that the interim protection granted could be varied after hearing the respondents. 2. Legality of the detention order under Section 3(1) of the COFEPOSA Act: The petitioner challenged the detention order issued on 21.01.2020, arguing that it was issued with malice and based on vague and extraneous grounds. The court noted that the petitioner had been granted bail previously and had complied with conditions, including permission to travel abroad. The court found that the petitioner's conduct did not warrant the issuance of a detention order and that the respondents needed to justify the delay in executing the order. 3. Validity of the notification under Section 7(1)(b) of the COFEPOSA Act: The petitioner sought to challenge the notification issued on 17.03.2020, which directed him to appear before the Director General of Police, Uttar Pradesh. The petitioner argued that the notification was issued with malice and without promptitude, as required under Section 7(1)(b) of the COFEPOSA Act. The respondents contended that the notification was a separate cause of action and should be challenged independently. The court found that the notification was interlinked with the detention order and that the petitioner should be allowed to challenge it within the same petition to avoid procedural complications. 4. Amendment of the writ petition to include additional grounds and reliefs: The petitioner filed an application under Section 482 of the Cr.P.C. to amend the writ petition and include a challenge to the notification under Section 7(1)(b) of the COFEPOSA Act. The respondents opposed the application, arguing that it was filed belatedly and would delay the proceedings. The court allowed the amendment, noting that the challenge to the notification was not entirely alien to the subject matter of the petition and had a direct nexus with the detention order. The court directed the petitioner to file the amended writ petition within three days and set a timeline for the respondents to file their reply and the petitioner to file a rejoinder. Conclusion: The court allowed the petitioner's application to amend the writ petition, enabling him to challenge the notification under Section 7(1)(b) of the COFEPOSA Act along with the detention order. The court emphasized the importance of personal liberty and the need for judicial scrutiny in cases involving preventive detention. The matter was listed for final hearing before the Roster Bench.
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