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TMI Blog2015 (9) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... rence at the pre-detention stage under the exceptions is not made out. - Decided against the petitioner. - WP (CRL.) No. 1386/2015 - - - Dated:- 31-8-2015 - Sanjiv Khanna And R. K. Gauba, JJ. For the Petitioner : Mr Sudhir Nandrajog, Sr. Adv. with Mr Amanpreet Singh Rahi and Ms Kiran Bhardwaj, Advs. For the Respondent : Mr Sanjay Jain, ASG with Mr Kirtiman Singh, CGSC with Ms Shreya Sinha, Mr Waize Ali Noor, Mr Gyanesh Bhardwaj and Mr Akshay Sehgal, Advs. JUDGMENT Sanjiv Khanna, J. 1. Harpal Singh challenges at pre-detention stage his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 ( COFEPOSA, Act , for short). The detention order enclosed as Annexure P-1 to the writ petition is dated 31st of March, 2015 and the present writ petition was filed in this High Court on 4th July, 2015. 2. The petitioner contends that the detention order deserves quashing at the pre-detention stage, in the absence of live link due to time gap between the detention order dated 31st March, 2015 and the occurrence on 7th July, 2014, which is the substratum and foundation of the detention order. The live link snapped once the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012) 7 SCC 533 [hereinafter referred to, as Subhash Popatlal Dave (1)] and also on Subhash Popatlal Dave Vs. Union of India and Anr. reported as (2014) 1 SCC 280 [hereinafter referred to, as Subhash Popatlal Dave (2)]. 3. We begin with the note of caution and specifically highlight that the challenge to the detention order under COFEPOSA Act, is at the pre-detention stage. The Supreme Court in Smt.Alka Subhash Gadia (Supra) had examined whether a person is entitled to challenge a detention order without submitting or surrendering to it, by filing a writ petition under Article 32 or 226 of the Constitution of India. The Supreme Court rejected the contention that at the pre-detention stage a person or a detenu against whom detention order is passed, is entitled to a copy of the detention order or the grounds of detention, observing that this would be contrary to the provisions of Section 3 (3) of the COFEPOSA Act and Article 22(5) of the Constitution, which stipulates that ordinarily grounds of arrest would be communicated within maximum period of five days of detention and in exceptional circumstances and for reasons to be recorded in writing within fifteen days from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution stage, can be made mainly on the aforesaid exceptions referred to hereinabove. By prefacing the five exceptions in which the courts could interfere with an order of detention at the pre-execution stage, with the expression viz. Their Lordships possibly never intended that the said five examples were to be exclusive (sic exhaustive). In common usage or parlance the expression viz. means in other words . There is no aura of finality attached to the said expression. The use of the expression suggests that the five examples were intended to be exemplars and not exclusive (sic exhaustive). On the other hand, the Hon ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power. 47. .The exercise of powers vested in the superior courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions by an order of the court of law. Such powers are untrammelled and vested in the superior courts to protect all citizens and even non-citizens, under the Constitution, and may require further examination. 48. ............There are various pronouncements of the law by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and delay there is no justification to hold that the subjective satisfaction of the detaining authority meets the Constitutional requirements. Further, there must be a live link and connection which should permeate and be discernible from the reasons or ground of detention consistent with the satisfaction of the State that the preventive detention order is required to be passed. 7. On the question of live link on merits, J. Chelameswar, J. in his opinion in Subhash Popatlal Dave (2) (Supra) has observed as under: 35. This Court consistently held that preventive detention does not partake in any manner of the nature of punishment but taken by way of precaution to prevent mischief to the community . Therefore, necessarily such an action is always based on some amount of suspicion or anticipation . Hence, the satisfaction of the State to arrive at a conclusion that a person must be preventively detained is always subjective. Nonetheless, the legality of such subjective satisfaction is held by this Court to be amenable to the judicial scrutiny in exercise of the jurisdiction conferred under Articles 32 and 226 of the Constitution on certain limited grounds. xxxxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion even at the pre-execution stage after a long lapse of time could take advantage of non-execution and challenge the detention order which remained unexecuted .. Thus, the specific issue and question raised was whether at the pre-detention stage a detention order can be quashed on the test of live nexus when there is a considerable time gap as the proposed detenu had absconded or evaded execution of the detention order. 8. In the immediately preceding paragraph i.e. paragraph 2, Gyan Sudha Mishra, J. has made it clear and explicit that the Supreme Court in Subhash Popatlal Dave (1) (Supra) had held that an order of preventive detention can be challenged beyond or for reasons other than the five grounds enumerated in Smt.Alka Subhash Gadia (Supra) even at the pre-execution stage. This position is also clarified by J. Chelameswar, J. in paragraphs 48 and 49 of the judgment [Subhash Popatlal Dave (2) (Supra)], which record: 48. This Court in Alka Subhash Gadia, emphatically asserted that it is not correct to say that the courts have no power to entertain grievances against detention order prior to its execution . This Court also took note of the fact that such an inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an officer specified in the notification at such place or time and on failure to comply with the notified direction without reasonable cause, an offence punishable with imprisonment for a term of upto one year or fine or both is committed. Abscondence could be established even when proceedings under Section 7 of the COFEPOSA Act, have not been specifically initiated. The aforesaid observations in the judgment of J. Chelameswar, J. highlight that the court should not come to the rescue and offer a protective hand to a proposed detenu, who is evading arrest for such recalcitrant or refractory conduct itself is illegal and deplorable. Any protection to such absconders would belittle and negate the exercise of writ jurisdiction and convert it into a haven for those, who do not have any respect for law. In such cases delay in execution of the detention order does not snap or break the link. This is exactly the reason and the core of the judgment by Gyan Sudha Mishra, J. Thus, abscondence by the proposed detenu from the process of law, would entail rejection of the plea or ground that the live link has severed because of the long time gap between the date of detention order and its ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents to take care and act with caution in future. 13. The contention on behalf of Union of India, Department of Revenue, Ministry of Finance that abscondence would be established, even if the is lapse or fault is entirely on the part of the executing authority or the sponsoring authority in ensuring enforcement is mis-placed and has to be summarily rejected. Such pleas cannot be countenance and accepted in view of the authoritative pronouncement of the Supreme Court in Subhash Popatlal Dave (2) (Supra), wherein distinction is drawn between apathy of the authorities responsible for execution of the detention order or abscondence on the part of the proposed detenu. A detention order may become bad and can be struck down for failure on the part of the sponsoring or executing authority even when the detaining authority is not responsible and at fault. If and when, adverse consequences would justify quashing of the detention order at pre-detention stage, is a different aspect relating to finding on the issue of abscondence. 14. We would now like to examine question of abscondence, without taking into account the order under Clause (b) of Sub-Section 1 to Section 7 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his wife had appeared before the Enforcement Directorate at Goa on 4th June, 2015 and 2nd June, 2015 respectively. The said appearance before the concerned authority was meaningless, as there is no document or material to suggest that the Enforcement Directorate, Goa was aware that a detention order under COFEPOSA Act had been passed. 16. However, in the facts of the present case we would not like to dismiss the present petition only on the ground of abscondence. We would like to dismiss the writ petition primarily for the reason that the petitioner has not been able to make an exceptional ground, to accept the present writ petition at the pre-detention stage. We do not agree with the counsel for the petitioner that there is lack of perceptible live nexus and link between the events on 7th July, 2014 and the detention order dated 31st March, 2015 for the connection snapped on account of the time gap between the two dates and delay in execution of the detention order dated 31st March, 2015, which was attempted to be first served on 1st June, 2015. We record and notice that the respondents in the reply have set out in detail the material which had to be first collected in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions which justify preventive detention. The said exercise is undertaken in a limited way for the order of preventive detention does not partake character of punishment, but is by way of pre-caution to prevent future mischief and, therefore, to some extent would always depends upon suspicion or anticipation. Power of interference under exception (iv) of Smt.Alka Subhash Gadia (Supra) at pre-detention stage would be even narrower and more restrictive. Interference would be only justified in cases where the order is perverse or absurd. Interference at this stage would be correct in apparently wanton and manifestly malevolent and arbitrary cases. Pertinently, at this stage, the grounds of detention are not served and in all probability the petitioner would rely on his alibi and justification. The present case we notice and observe would not fall in said exception. We refrain from elaborating and noting in detail the assertions made in the grounds of detention order as the same has not been served on the petitioner. However, we note and record what we have before us are the contentions raised by the petitioner, show cause notice issued by the Customs Authorities under Section 124 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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