9911796707
TMI Blog2005 (10) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant impugns the order of detention passed against him by the State of Bihar on September 4, 2002 in exercise of powers conferred by Section 3(i), (ii) and (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act ). The High Court by its impugned judgment and order dated September 17, 2003 dismissed the writ petition and held that this was not an appropriate case in which the High Court could exercise its jurisdiction under Article 226 of the Constitution of India to quash an order of detention even before its execution. The correctness of the aforesaid view of the High Court is challenged before us. The facts of the case are few and not disputed. The appellant claims to be one of the partners of M/s. Prakash Transport, a partnership firm having its principal place of business at Kolkatta with branch offices all over India including one at Raxaul in the State of Bihar. The firm is engaged in the business of transportation of goods by road by hiring public carrier trucks. According to the appellant, on August 28, 2001 a Nepalese firm M/s. Prakash International Carriers Pvt. Ltd., Kathmandu, Nepal, hir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request had been made for immediate compliance of the preventive detention order under the Act to the Commissioner of Police, Kolkatta, no action was taken. Several such letters addressed to the police authorities of the State of West Bengal, however, yielded no result. Having regard to the facts and circumstances of the case it appears to us prima facie, that there has been delay in the execution of the detention order and the State of Bihar has not taken effective steps to arrest the appellant and serve the order of detention upon him. This, however, should not be considered to be our concluded opinion in the matter, since it is always open to the detenue to challenge the order of detention after arrest, and the question of delay in issuance or implementation of the order can be raised in such proceeding. The real issue which arises in the instant appeal is whether the High Court was justified in law in not exercising its discretion under Article 226 of the Constitution of India to quash the order of detention at the pre-arrest stage. Learned counsel for the appellant submitted that once it is shown that the State has taken no steps to execute an order of detention and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention and the purpose of detention is snapped. (See : P.U. Iqbal vs. Union of India and others : (1992) 1 SCC 434 ; Ashok Kumar vs. Delhi Administration : (1982) 2 SCC 403 and Bhawarlal Ganeshmalji vs. State of Tamilnadu : (1979) 1 SCC 465. It is not necessary for us to multiply authorities because no exception can be taken to the above proposition enunciated by this Court in a series of decisions. Mr. B.B. Singh, learned counsel appearing on behalf of the State of Bihar, submitted before us that the question involved in the instant appeal is not whether the order of detention should be struck down on the ground that the State of Bihar has not taken necessary steps to implement the order of detention, but whether at the pre-arrest stage the High Court should have exercised its jurisdiction under Article 226 of the Constitution of India to quash the order of detention on such grounds. He submitted that the decisions of this Court have taken the view that exercise of discretion under Article 226 of the Constitution of India can be justified only in appropriate cases and the scope for interference is very limited. Normally the Court would not interfere with the order of detenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain s present contention would mean that the courts should disregard all these time-honoured and welltested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenue is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t observing :- "This Court has been categorical that in matters of pre-detention cases interference of court is not called for except in the circumstances set forth by us earlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order, for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Addl. Secy. to the Govt. of India Vs. Alka Subhash Gadia and Sayed Taher Bawamiya Vs. Jt. Secy. to the Govt. of India, we hold that the order made by the High Court is bad in law and deserves to be set aside". Coming to the facts of this case, at the highest the case of the appellant is that the order of detention was belatedly passed and the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
