9911796707
TMI Blog2005 (10) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, hired a vehicle owned by one Shri Vishwanath Prasad Kanu, a Nepalese citizen, for transportation of goods from the godown of the appellant's firm at Raxaul to Nepal. The appellant has no concern with the Nepalese firm M/s. Prakash International Carriers Pvt. Ltd. The truck hired by the aforesaid Nepalese firm was detained at the Indian Land Custom Station at Raxaul and an idol kept in a wooden box was recovered. This led to the search of the premises of the appellant's firm at Raxaul and the search resulted in the recovery of another idol kept in a wooden box. The statement of the driver of the truck was recorded on August 29, 2001 and on the basis of his statement the complicity of the appellant was discovered. Accordingly his house at Kolkatta was searched on September 11, 2001 and his statement recorded. On February 22, 2002 a notice was issued to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 explanation furnished by the State is unsatisfactory, it must be held that the order of detention was not issued for the purpose for which it could be issued under the Act, and necessarily implied that the real purpose was something else, not authorized by law. In such a case it made no difference whether the appellant moved the High Court at the pre-arrest stage or after his arrest pursuant to the order of detention. He emphasized that expeditious steps must be taken by the State both in the matter of passing the order of detention and in executing the same. Both are lacking in the instant case. The order of detention was passed on September 4, 2002 while the complicity of the appellant is alleged to have been discovered on August 29, 2001 on the basis of the statement of the driver of the vehicle. In the matter of implementation of the order as well, there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention 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 detention at a pre-arrest stage under Article 226 of the Constitution of India. He submitted that there are only 5 exceptions to this rule which would justify interference by the Court at the pre-execution stage with the order of detention. Those five situations have been enumerated in the case of Additional Secretary to the Government of India and others Vs. Smt. Alka Subhash Gadia and another : 1992 Supp (1) SCC 496; "As regards his last contention, viz., that to deny a right to the proposed detenue to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenue, but prevents their abuse and the perversion of the law in question". In Union of India and others vs. Parasmal Rampuria : (1998) 8 SCC 402, when the order of detention passed under the Act was sought to be challenged a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 State of Bihar thereafter took no steps whatsoever to implement the order of detention. Counsel for the appellant sought to bring this case under the third exception enumerated in Alka Subhash Gadia (supra), namely, that the order was passed for a wrong purpose. In the facts and circumstances of this case, it is not possible to accept the submission that the order was passed for a wrong purpose. Apparently the order has been passed with a view to prevent the appellant from smuggling goods or abetting the smuggling thereof etc. The facts of the present case are no different from the facts in Muneesh Suneja (supra). We do not find that the case falls within any of the exceptions enumerated in Alka Subhash Gadia (supra). The High Court was, therefore, justified in refusing to exercise jurisdiction under Article 226 of the Constitution of India to quash the order of detention at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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