2008 (5) TMI 289 - HC - Customs

Detention - Pre-detention/pre-execution stage - Judicial review - Held that - At pre-detention stage, judicial review on the ground of delay in passing or execution of the detention order being not available. As long as the service of the detention order is evaded, even if the representation under Section 11 is rejected, the absconder cannot challenge such rejection on grounds other than the five grounds supra or species thereof. The ground of delay in disposal of representation is not available to the Petitioner. Delay, even if any, would not be relevant when the petitioner is not in detention. We otherwise also do not find any inordinate delay.We may also record that we had during the hearing put it to the counsel for the Petitioner that the Petitioner appear before the court to get over the limitations in challenge at pre-execution/pre-detention stage. However, the same was not acceptable to the counsel for the Petitioner. Though have considered the matter on merits but find the conduct of the Petitioner even otherwise reprehensible. The Petitioner was employed at a sensitive position and owed a greater degree of duty than an ordinary citizen. The Petitioner ought to have surrendered and then urged whatever grounds are available to him. The Petitioner has made a mockery of the detention order by evading the same for the last more than 7 years. The Petitioner is not entitled to invoke the discretion of writ jurisdiction on this ground also. The Petition is dismissed.

Issues Involved:
1. Validity of the detention order dated 4th August 2000.
2. Rejection of the Petitioner's representation dated 11-4-2005.
3. Scope of judicial review at the pre-detention stage.
4. Impact of the Customs, Excise and Service Tax Appellate Tribunal's exoneration on the detention order.
5. Applicability of res judicata and issue estoppel in successive writ petitions challenging detention orders.

Detailed Analysis:

1. Validity of the Detention Order:
The Petitioner was employed with the Airport Authority of India (AAI) and was suspected of involvement in the clandestine removal of consignments. A detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was issued on 4th August 2000. The Petitioner challenged this order, arguing that it was issued after an undue delay and that he had been exonerated by the Tribunal. The court held that the delay in passing or executing the detention order is not a ground available at the pre-detention stage, as per the judgments in Alka Gadia, Sayed Taher Bawamiya, and Naresh Kumar Goyal cases. The court further noted that the purpose of the detention order is to prevent the detenu from continuing prejudicial activities, and the Tribunal's exoneration does not affect the detention order.

2. Rejection of the Petitioner's Representation:
The Petitioner argued that his representation dated 11-4-2005 was rejected without providing reasons, constituting a mechanical dismissal. The court held that the rejection of representation need not contain reasons if they are recorded in the file and can be reviewed by the court, as per the Division Bench judgment in Mansukh Chaggan Lal Bhatt v. UOI. The court found no inordinate delay in the disposal of the representation and dismissed the argument that the rejection was mechanical.

3. Scope of Judicial Review at Pre-detention Stage:
The court emphasized that judicial review at the pre-detention stage is limited to the five grounds mentioned in the Alka Gadia case. The court refused to expand the scope of judicial review to include the merits of the detention order or the delay in its execution. The court stated that the judicial review at this stage does not cover situations where the nexus between the grounds and the order breaks down due to the lapse of time.

4. Impact of Tribunal's Exoneration:
The Petitioner relied on the Customs, Excise and Service Tax Appellate Tribunal's order, which exonerated him from the penalty imposed by the adjudicating authority. The court held that the Tribunal's exoneration, being subsequent to the factors existing at the time of passing the detention order, does not affect the validity of the detention order at the pre-detention stage. The court referenced the Apex Court's judgment in Alpesh Navinchandra Shah, which clarified that the orders of the Settlement Commission and the COFEPOSA are separate and should not influence each other.

5. Applicability of Res Judicata and Issue Estoppel:
The court rejected the Petitioner's argument that the principles of res judicata and issue estoppel do not apply to preventive detention matters. The court held that successive writ petitions challenging the same detention order without fresh grounds are not maintainable. The court noted that the Petitioner had already filed a writ petition challenging the detention order, which was dismissed, and thus, the present petition is not maintainable on the same grounds.

Conclusion:
The court dismissed the writ petition, holding that the Petitioner could not challenge the detention order on grounds of delay in passing or executing the order at the pre-detention stage. The court also found no merit in the Petitioner's arguments regarding the rejection of his representation and the impact of the Tribunal's exoneration. The court emphasized the limited scope of judicial review at the pre-detention stage and upheld the validity of the detention order.

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