9911796707
TMI Blog2008 (5) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... the Detention Order; significantly, Gadia was not cited before their Lordships. In Sayed Taher Bawamiya v. Joint Secretary to the Govt. of India, (2000) 8 SCC 630, which is a Three-Judge Bench decision, the five Gadia exceptions had been reiterated, namely, that courts would be empowered to interfere with detention orders at the pre-execution stage only if they 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. Their Lordships categorically rejected the argument that these five exceptions are not exhaustive. Both these cases were taken note of in Union of India v. Amrit Lal Manchanda, 2004(3)SCC 75 which is one of the decisions to which our attention has been drawn by Ms. Babbar, learned counsel for the Respondents. 2. Similar observations can be found in Union of India v. Vidya Bagaria, (2004) 5 SCC 577 and Union of India v. Chaya Ghoshal, (2005) 10 SCC 97 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue. 3. The same five tests, imperative or exceptions of Gadia have also been reiterated in Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276 delivered by a Three-Judge Bench. The argument predicated on the order of detention having been passed belatedly was repulsed, as was the contention that it was passed for the wrong purpose. The Court observed that since the case did not fall within any of the exceptions enumerated in Gadia, the High Court was justified in declining to exercise powers under Article 226 of the Constitution to quash the Order of Detention at the pre-arrest stage. The following passage thereof is reproduced for facility of reference : 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay granted Bail to the Petitioner on 2.1.2002 and in compliance with one of the conditions of his Bail, further statement was corroborated. The Petitioner filed writ petition No.241/2002 dated 21.1.2002 and Criminal Application No.251/2002 in the High Court of Bombay. On 29.1.2002 the Petitioner was ordered not to leave India without the permission of that High Court and further that he should attend the Office of the DRI whenever lawful summons were issued to him. Anticipatory Bail came to be granted by that High Court on 3.1.2002. The Order of Detention further informed the Petitioner that the COFEPOSA Advisory Board, Delhi High Court would conduct its hearings at which he could be present and duly represented. Mr. Dubey states that the relevant events took place in Mumbai; that the Petitioner had invoked the jurisdiction of the Bombay High Court on more than one occasion in the past; and the seat of the prosecution would also be in Mumbai and, therefore, this Court should decline to exercise jurisdiction. Our attention has been drawn to the Orders dated 30.4.2007 recording the Petitioner's request for an adjournment in order to obtain instructions as to whether these pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise v. Technological Institute of Textile, 1998 (47) DRJ 667(DB) have clarified that the High Court should not exercise jurisdiction only because the Tribunal whose order is in appeal before it, is located within its territorial boundaries. In Seth Banarsi Dass Gupta v. CIT, (1978) 113 ITR 817 and Birla Cotton and Spinning Mills Ltd. v. CIT, Rajasthan, (1980) 123 ITR 354 this Court declined to exercise jurisdiction because both the assesses resided and carried on business outside Delhi. On a reading of Article 226 (1) of the Constitution it will be palpably clear that without the next following provision, a High Court may not have been empowered to issue a writ or order against a party which is not located within the ordinary territorial limits of that High Court. The power to issue writs against any person or Authority or Government even beyond the territorial jurisdiction of any High Court is no longer debatable. The rider or pre-requisite to the exercise of such power is that the cause of action must arise within the territories of that particular High Court. It does not logically follow, however, that if a part of the cause of action arises within the territo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made at Bombay, may invoke the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay. ... It would give rise to the issue of forum shopping. ....For example, an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to the judgments of the High Court of Bombay . 10. In our opinion, the Bombay High Court would indubitably be the forum conveniens ; we would not have been surprised had the Petitioner assailed the impugned Order passed in New Delhi in the Bombay High Court. In cases such as these, we can conceive of no impediment in the passing of relevant orders from the place where the substantial cause of action has arisen; in this case, Mumbai. However, we must not lose sight of the position that the scope of inquiry in an action challenging a detention order at the pre-execution stage is extremely narrow and circumscribed. It must fall within the five Gadia exceptions, all of which do not require a detailed or minute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso noted that the provisions of Section 50 of the Customs Act would invariably be violated in every case of over-invoicing or under-invoicing. In Commissioner of C. Ex. and Customs. A.P. v. Suresh Jhunjhunwala, 2006(203) E.L.T. 353(SC) the impact of over-invoicing came up for consideration. The Court reaffirmed the views in Bhatia, and did not follow Commissioner of Customs (EP), Mumbai v. Prayag Exporters Pvt. Ltd., 2003(155) ELT 4(SC). This question is no longer debatable pursuant to the insertion of Section 113(h)(i) in the Customs Act with effect from 14.5.2003. Therefore, over-invoicing definitely invites and attracts prosecution under the said Act. 12. Placed in this predicament Mr. Kirpal has next contended that since the Customs Act does not have extra territorial operation, the Petitioner cannot be found guilty of having abetted in the violation of its provisions. If this is so, according to Mr. Kirpal, the present case falls within the boundaries established by Gadia. He has eloquently drawn attention to the Orders of the Bombay High Court dated 1.11.2007 whereby the matter was remitted to the Settlement Commission for deciding the question whether any of the penal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w ought not to travel beyond the Gadia principles. 13. With due respect to the Commission, we are unable to find any reasoning behind their conclusion that even on merits, it can be seen that the applicant had only signed some documents at the instance of the principal offender Sh. Yusuf Dhanani. Sh. Yusuf Dhanani has been heavily penalised for it in the said Final order. Thus on merits too the penalty against this person is not attracted and no prudent adjudicator would order levy of penalty in such facts. .... If the contention of the Revenue is accepted then all foreign suppliers, all over the world, who have connived and colluded will (sic. with) for under valuation by raising two sets of invoices should have the subject matter of show cause notice issued by the Customs/Revenue in India. This has never been done as the law is not applicable to such persons who have neither abetted or concluded or have been an accomplice in the acts of omission or commission committed by Indian Importers which have rendered goods liable to confiscation. We are unable to agree with these findings especially since no reasons have been given for coming to this conclusion. Once it is found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely because such action may not have been initiated in the past. We are required to pre-judge the entire issue at the pre-execution stage of the detention orders. We must be loathe to do so. 15. In Alpesh Navinchandra Shah v. State of Maharashtra, (2007) 2 SCC 777 the petitioner had been granted immunity from any penalty that could be levied under the Customs Act and also from the prosecution under the Customs Act, as well as under Indian Penal Code, in terms of sub-section(1) of Section 127H of the Customs Act. Nevertheless, in paragraph 49, their Lordships observed that it had not been mentioned in the Settlement Commission's order that the petitioner would not indulge in smuggling of goods in future. Relying on the ratio in Pawan Bhartiya v. Union of India, (2003) 11 SCC 479 it was held that since the Petitioner had ceased his activities in the field of import or export and had paid the tax with penalty, and had not indulged in any activity similar to the previous one, the purpose of passing the detention order would become punitive rather than preventive; the petition was allowed for this reason. The factual matrix in the present Petition and Alpesh as well as Bhartiya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SA or any other law. However, since Detention Orders have been passed by the Central Government, the proviso to Section 188 would stand impliedly complied with, assuming its applies. Thus, the impugned Orders are impervious to the challenge laid out in this petition. It will be relevant in this regard to extract passages from Ajay Agarwal v. Union of India, (1993) 3 SCC 609 : AIR 1993 Supreme Court 1637, even though this precedent pertained to the Indian Penal Code : 27. ..... no opinion on the facts of this case. The ratio in Fakhrulla Khan: (AIR 1935 Madras 326) has no application to the facts in this case. Therein the accused were charged for offences under Section 420, 419, 467 and 468 and the offences were committed in native State, Mysore. As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction. Equally in Verghese's case (AIR 1947 Madras 352) the offences charged under Section 409 Indian Penal Code had also been taken place outside British India. Therefore, it was held that the sanction under Section 188 was necessary. The ratio in Kailash Sharma's case (1973 Cri LJ 1021) (Delhi) is not good at la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is amenable to jurisdiction under Section 179 of the Criminal Procedure Code a NRI cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present. 32. Preparation of bill of lading at Dubai or payment at Dubai were not isolated acts. They were part of chain activities between the appellant and his associates with whom he entered into agreement to cheat the bank at Chandigarh. Any isolated act or omission committed at Dubai was insufficient to constitute an offence. The illegal act of dishonestly inducing the bank at Chandigarh was committed not by preparation of bill at Dubai but its presentation in pursuance of agreement to cheat. The submission thus founded was on residence or on preparation of bills of lading or encashment at Dubai are of no consequence. 33. Nor is there any merit in the submission that even part of the offence would attract Section 188 as the section operates when offence is committed outside India. An offence is committed when all the ingredients are satisfied. The section having used the word offence it cannot be understood as part of the offence. Section 179 Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has not been able to establish that the case falls within one or more of the exceptions established by Gadia and therefore it would be inappropriate to exercise our extraordinary powers of judicial review. Since the Petitioner is absconding, and thereby defeating the purpose of the law, and yet seeks its protection, we ought to dismiss the Petition with heavy costs. We, however, desist from doing so. 19. Petition stands dismissed. WP(Crl.)1093/2007 20. One of the contentions of Mr. Jain is that inordinate delay has occurred in the passing of the impugned preventive detention order; that despite the passage of almost five years since its passing it has not been executed on the Petitioners. These contentions are devoid of merit. In Sunil Fulchand Shah v. UOI, 2000 (3) SCC 409 the Constitution Bench has opined that the view taken in State of Gujarat v. Adam Kasam Bhaya, (1981) 4 SCC 216 and State of Gujarat v. Mohd. Ismail Jumma, (1981) 4 SCC 609, namely, that the period of detention would commence from the date of detention, is correct. The controversy also stands fully covered by the decision in Mansukh Chhagan Lal Bhatt v. Union of India, 56(1994) DLT 561. The Ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough several commendations made in favour of the Petitioner by ASSOCHAM and PHD Chamber of Commerce etc. in this regard. The contention is that since there was no prior commission of any dubious or illegal transactions, clamping preventive detention on the Petitioner was totally misplaced. This very argument had not found favour of the Apex Court in Chaya Ghoshal where it was observed that it is the impact of the act and not the number of acts which will justify the passing of such an order. Ms. Barkha Babbar has also drawn our attention to Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1 where the submission that if there are no antecedents and it is only a solitary incident, preventive detention would be unwarranted was turned down by the Court. Their Lordships left such a decision to the satisfaction of the detaining authority, who may not earlier have been able to 'salvage' the petitioner's antecedent. The Court held that even a solitary incident may disclose smuggling potentialities of the petitioner. In our opinion it is quite possible that previous illegal transactions and imports may well have gone undetected. 23. Ms. Babbar has further highligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Petitioner. Mr. Jain's argument is that this failure brings the case within the third Gadia exceptions, namely, passing of the Detention Order for the wrong purpose. In our opinion, if the existence of this letter were not shrouded in controversy, the case may have fallen in the fourth exception, namely, that the impugned Detention Order has been passed on vague, extraneous and irrelevant grounds. Non-consideration of a vital document would invariably lead to the concerned decision becoming vague and irrelevant inasmuch as it ceases to be passed on all relevant material. In the present case, however, as there is considerable controversy on the authenticity of the letter dated 4.4.2003, we think it inappropriate to go into this question at this stage of the proceedings between the parties before us. Most importantly, this very question had been raised, without success, in Bawamiya. In paragraph 7 of the reports their Lordships observed that since the detenu had not been served with a copy of the Order it was not open to the petitioner to contend that the non- existent order was passed on vague, extraneous or on irrelevant grounds. 25. Mr. Jain has also contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
