1999 (8) TMI 100 - HC - Customs

Summary

Issues Involved:
1. Maintainability of the appeal by the Joint Secretary (Copeposa).
2. Justification for stay of the detention order at the pre-execution stage.
3. Examination of bail granted to the respondent-writ petitioner.
4. Applicability of the Supreme Court's judgment in Harnek Singh's case.
5. Delay in executing the detention order.
6. Jurisdiction of the court in entertaining the writ application.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal by the Joint Secretary (Copeposa):
On behalf of the respondent, it was contended that the appeal should have been filed by the Union of India and not by the Joint Secretary. The court found no merit in this objection, stating that the statutory authority who passed the detention order has the right to file an appeal if aggrieved by the stay order. The Union of India, though not an appellant, was made a respondent and supported the appellant's stand.

2. Justification for Stay of the Detention Order at the Pre-execution Stage:
The court limited its decision to whether the stay of the detention order pending the writ petition was justified. The writ petition challenged the detention order before its execution. The Single Judge noted the contentions of both parties and decided that broader issues would be considered at the final hearing. The stay was largely influenced by the fact that the petitioner had been granted bail on the same grounds as the detention order.

3. Examination of Bail Granted to the Respondent-Writ Petitioner:
The Single Judge observed that the petitioner had been in custody for the same allegations but was granted bail on 23rd June 1998. This was seen as an exceptional circumstance allowing a challenge to the detention order at the pre-execution stage. The delay of seven months in passing the detention order after the bail was also noted, with no evidence of bail condition violations or continued prejudicial activities by the petitioner.

4. Applicability of the Supreme Court's Judgment in Harnek Singh's Case:
The Single Judge applied the ratio of Harnek Singh's case, where detention on the same grounds after a significant delay was deemed illegal. However, the court found that this case was not applicable as the petitioner was not granted bail for the offenses for which he was detained but for non-compliance with summons under Section 108 of the Customs Act.

5. Delay in Executing the Detention Order:
The court held that delay in executing the detention order could not justify staying the order at the pre-execution stage. This was supported by the judgment in Ismail Basha v. Union of India, which stated that such delay does not amount to passing an order for a wrong purpose and should be challenged after the detention order is served.

6. Jurisdiction of the Court in Entertaining the Writ Application:
The court did not delve deeply into the jurisdictional issues but noted that the order of detention was to be issued by an authority outside the court's jurisdiction. It referenced recent judgments indicating that anticipatory bail cannot be granted if the offense occurred outside the court's jurisdiction, except for limited purposes.

Conclusion:
The appeal was allowed, and the stay order was set aside. The respondent was given the liberty to challenge the detention order on merits after surrendering and making a representation under Article 22(5) of the Constitution. The court did not address the merits of the detention order's validity, leaving all contentions open for future examination.