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TMI Blog2020 (5) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... y by way of a separate and a distinct petition. The detention order would be quashed and the consequential proceedings which have been initiated under Section 7 of the Act, on account of non-compliance, would continue to survive. Contravention of section 7 may be a separate offence contemplated under the Act, requiring independent consideration, but the substantive question before us at this stage is not whether the same deserves to be quashed or not - since the proceedings under Section 7 of the Act emanate from the detention order, the proper recourse is to allow the petitioner to impugn the same along with the main petition. Another crucial aspect of Section 7 flows from the verdict of the apex court dealing with the scope of jurisdiction of the Court while entertaining a petition challenging the detention order at a pre-execution/pre-arrest stage. In the case of ADDL. SECRETARY TO GOVT. OF INDIA VERSUS ALKA SUBHASH GADIA [ 1990 (12) TMI 216 - SUPREME COURT] the Supreme Court has emphasized that while the court has the power to interfere with the detention order even at the pre-execution stage, but they are not obliged to do so nor will it be proper for them to do, save i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No.2, under Section 3(1) of COFEPOSA Act, 1974. The petitioner asserts that he is a non-resident Indian citizen and is engaged in trading of gold jewellery in U.A.E. On 24.04.2019, he was detained by the officers of DRI at IGI Airport, New Delhi on the allegations of involvement in illicit import and export of gold jewellery, whilst he was travelling to India from Dubai. The petitioner was formally arrested by the officers of DRI on 26.04.2019 and was produced before the learned Duty Metropolitan Magistrate on 26.04.2019 at her residence at 23:00 hrs and was remanded to judicial custody till 27.04.2019. Vide order dated 3.06.2019, the learned CMM, Patiala House Court, New Delhi released the petitioner on bail. Subsequently, on 22.08.2019 petitioner moved an application seeking permission to travel abroad and for release of passport. Thereafter, DRI filed an application seeking cancellation of petitioner s bail. This brought about several legal proceedings between the petitioner and the DRI. 3. The petitioner at the first instance approached the Supreme Court, vide W.P. (CRL.) No. 63/2020, challenging the impugned detention order. However, the Court did not interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not easy to deal with such like matters unless the files have been circulated well in advance to be read by the concerned Judges. We have considered the submissions of Mr. Chaudhri, learned senior counsel for the petitioner and Mr. Mahajan, learned counsel for the respondent. So far as the submission of Mr. Mahajan that there is no urgency for grant of interim protection to the petitioner is concerned, we reject this submission since it involves the personal liberty of the petitioner. The petitioner s personal liberty cannot be compromised to accommodate the respondents. In any event, the interim protection that the petitioner may be granted at this stage would only be an adinterim order which could be recalled or varied after hearing the respondents. It is for the respondents to explain the circumstances in which the detention order has come to be passed after about nine months of his being intercepted on his return from abroad. Considering the fact that the petitioner was earlier granted bail by the learned CMM on 03.06.2019; the application moved by the Department for cancellation of his bail was dismissed on 25.09.2019; the petitioner was granted permission to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment of Uttar Pradesh, Lucknow, within 7 days of the publication of this Order in the Official Gazette. 6. Since the application is strongly opposed by the Respondents on various grounds and also considering that its outcome would have a substantial bearing on further proceedings in the present writ petition, we proceeded to first hear the learned counsel on behalf of the parties, on this application. Mr.Vikram Chaudhari, learned senior counsel appearing on behalf of the petitioner argued that that during the course of hearing before this Court on 24.04.2020 through video-conferencing, the petitioner learnt that the respondents had initiated action against him, under Section 7 (1) of the COFEPOSA Act. On becoming aware of this fact, when the petitioner logged on to the website http://egazette.nic.in/, he became aware of the said notification which appears to be digitally signed on 17.03.2020. He argued that said the notification is blatantly actuated with malice both in fact and in law, as is apparent from the record and it is imperative for the petitioner to also impugn the same. Thus, the petitioner should be permitted to incorporate the additional grounds and a prayer in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der cannot be set aside at the pre-execution/pre-arrest stage unless the court is satisfied that there exist circumstances which fall within the exceptions carved out by the court. She submitted that the scope of extraordinary jurisdiction of the court is very limited and stressed that the Court should exercise caution, and not interfere in the present case as the petitioner has failed to bring his case within any of the known exceptions enumerated in the case of Alka Subhash Gadia (supra) and Subhash Popat Lal Dave (supra). Ms.Acharya put the spotlight on the conduct of the petitioner to impress upon us that he is an evader of the process of law and this Court should insist on his surrender before anything else is considered. She also strongly objected to the maintainability of the present application and submitted that the notification under Section 7 (1)(b) of the COFEPOSA is an independent cause of action and any challenge to the same should be by way of an independent petition and cannot be clubbed with the present petition filed at the pre-execution stage. The petitioner has filed the application at a belated stage, despite being in the know of the notification, much prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the proposed challenge to the notification dated 17.03.2020 which is sought to be impugned by way of amendment to the petition. Therefore the sufficiency of the cause of action for amendment of the petition has to be evaluated by taking a holistic view of the facts and circumstances before us. Ms.Acharya s contention that the challenge to the notification dated 17.03.2020 cannot be combined with the present petition which is directed against the detention order, appears to be an objection without any legal foundation. At least, nothing to the contrary, has been demonstrated before us. The notification under Section 7 of the Act is not enitrely alien to the subject matter of the petition. To the contrary, it is interlinked with the detention order. Section 7 of COFEPOSA reads as under: 7. Powers in relation to absconding persons. (1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may- (a) make a report in writing of the fact to a Metropolitan Magistrate of or a Magistrate of the first class havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific prayer for challenging the notification. Where would such an eventuality lead us? The detention order would be quashed and the consequential proceedings which have been initiated under Section 7 of the Act, on account of non-compliance, would continue to survive. Contravention of section 7 may be a separate offence contemplated under the Act, requiring independent consideration, but the substantive question before us at this stage is not whether the same deserves to be quashed or not. We are only concerned with the question as to whether the petitioner should be permitted to impugn the same along with the main petition. If we decline to consider the additional relief proposed in the application, it has a potential of leading us to procedural complications which can be best avoided if we examine the same along with the main petition. Therefore, since the proceedings under Section 7 of the Act emanate from the detention order, in our view, for the reasons noted above, the proper recourse is to allow the petitioner to impugn the same along with the main petition. 11. Another crucial aspect of Section 7 flows from the verdict of the apex court dealing with the scope of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the CrWP. However, the returns filed are always not very satisfactory and in many cases we have found that only half truth is indicated in the return. It would, therefore, be undesirable to decide the challenge to the detention under the COFEPOSA Act merely on the basis of the affidavits. In our opinion, the challenge is required to be precisely formulated and has to be properly scrutinised. The formulation and the scrutiny require that the order and the grounds of detention and the supporting documents considered by the detaining authority be furnished to the detenu as well as produced before the Court. We have ascertained from the learned counsel representing respondents 1 to 3 that the orders and the grounds of detention as well as supporting documents are available with the department in Bombay. We accordingly direct that copies of the same will be prepared and one copy of the same will be furnished to the petitioner's advocate on record by 5.30 p.m. on Thursday, i.e., June 29, 1989. We propose to stand over the matter till Monday, July 3, 1989 to enable the petitioner to consider as to whether any amendment of the writ petition is required. If any amendments are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 i.e. after one month from the date of detention order. The fact that the notification was instead issued a day after the decision of the Supreme Court on petitioner s petition, reveals the real intent of causing prejudice, and therefore the action qualifies to be an act of malice in law. Although Ms.Acharya strongly opposes this assertion, however we feel at this stage we need not engage ourselves on this issue. Nevertheless, one thing is certain- notification under Section 7 of the Act and the facts and circumstances leading to its issuance, would have a bearing on the petitioner s challenge to the detention order one way or the other. The proposed amendments would not entirely change the scope of the main petition. Even if it did, it is settled law that the principle of constructive res judicata does not apply to petitions alleging violation of Article 21 of the Constitution. Petitioner would like the fruition of the proceedings to be conclusive in every sense and not in a piecemeal manner. Therefore, he should certainly be given an opportunity to demonstrate that the notification under Section 7 was indeed an act of malice in law and that there was no justification to resort t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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