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TMI Blog1994 (11) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ash Muljimal Gandhi 1994 (5) T. 358. We further held that the above categories o) delays concerning the detention order did not also come within the same species rule enunciated in Subhash Muljimal Gandhi's case. We overruled the decision of the Division Bench, of this Court in Subhash Chander vs . Union of India and others 43(1991)DLT517 and other rulings taking the same view. We approved certain other rulings of this Court in so far as they were consistent with the view expressed by the Full Bench. (3) Now, we shall consider two other important points additionally arising in this case. Before we do so, we shall briefly refer to the facts of the case. (4) The petitioner in this case was the master of a small vessel which came from Dubai to Daman and the Customs authorities entered the vessel on the sea on 24.5.89 and recorded statements. They seized VCPs, tape recorders etc. on 26.5.89 on board the vessel. After the vessel reached the port, it was also seized under panchnama on 30.5.89. On 24.5.89, 26.5.89 and 30.5.89 they recorded statements. A detention order was passed under the Cofeposa on 31.7.89 but has not been served on the petitioner so far. On 24.8.92 the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the detention order is passed. This is the gist of the first additional point arising in this case. (7) Such issues as these, indeed, arose before the Bombay High Court in Manoharlal Narang vs. Union of India (Special Civil Application No. 2752/75 (with CrI.Rev. 23/80) and were decided by Sawant, J (as he then was) and Pendse, J on 8.7.1980. It was held there by Sawant, J (as he then was) that at the pre-detention stage, the person who was proposed to be detained under the Cofeposa, could invoke Section 11 of the Act and seek revocation of the order of detention proposed to be served on him in view of the fundamental right guaranteed under Article 21 of the Constitution of India, which unlike Article 22, was applicable even at the pre-detention stage. It was further decided by Sawant,J in that case that till the Section 11 application was disposed of, the person had a fundamental right not to be detained and hence the High Court could pass an order injuncting the authorities not to detain the person till the Section 11 application is disposed of. (8) But before Sawant J, the rights of a detenu at the pre-detention stage, came up for consideration in the Supreme Court more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed on vague, extraneous and irrelevant grounds or (v) that the authority, which passed it had no authority to do so. It is clear that to this extent alone Manoharlal Narang's case was approved in Alka Subhash Gadia. It was not stated that the pendency of the Section 11 could be yet another ground for granting stay of the detention at the pre-detention stage. Though such a view was expressed by His Lordship in the Bombay High Court, the same was not accepted. Or else the pendency of the Section 11 application could have been included as the sixth contingency in Alka Subhash Gadia. In fact, Sawant, J significantly held in Alka Subhash Gadia that (see para 33, J.T. at page 567) the decisions of the Supreme Court and of the High Courts (must include the Judgment in Manoharlal Narang's case) to the extent inconsistent with Alka Subhash Gadia must be deemed to be overruled. His Lordship observed : TO the extent that the decisions of this Court in Smd Kiran Pasha vs . The Government of Andhra Pradesh Others (1990)1SCC328 and the decisions of all the High Courts are contrary to or inconsistent with the view taken by us above, they will be deemed to have been disapprove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int raised before us in this writ petition. It is contended that subsequent to the order of detention dated 31.7.1989 passed against the petitioner, the adjudicating authority under the Customs Act, passed an order on 16.3.1992, and it is argued that that order decides that there was no smuggling by the petitioner on 26.5.1989. It is contended that by virtue of the order of the adjudication dated 16.3.1992, the very foundation of the order of detention dated 31.7.1989 has gone. According to counsel, a person who imports goods into India could declare the goods within 24 hours of the arrival of the goods at the Customs station and pay the duty etc and avoid confiscation. If the goods are not liable for confiscation, it is argued, there is no smuggling within the meaning of the said expression in Section 2(39) of the Customs Act or within Section 2(e) of the COFEPOSA. The case would then, it is argued, fall within the third contingency mentioned in Alka Subhash Gadia, namely, that the detention order is passed for a wrong purpose, that is to say, not for the purpose of preventing smuggling in future by the petitioner. Counsel requests us to look into the note-file and see if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, holds good even in the pre- detention cases. But, at the same time, though the reasons for refusal to revoke the order need not be communicated to the person sought to be detained, it will be necessary for the concerned authority to record it reasons in its file. In such a context, it is also open to the High Court under Article 226 to look into the said reasons recorded in the file and consider whether the case of the person comes within the five exceptions mentioned in Alka Subhash Gadia or within the same species rule stated in Subhash Muljimal Gandhi's case (supra), as explained by us in the Full Bench case. (17) In the present case, we have gone through the reasons recorded in the file by the concerned authority under Section 11 and we are satisfied that the contention of the petitioner that the adjudication order amounted to a finding of no smuggling the case fell within the third exception in Alka Subhash Gadia was not considered from that angle by the said authority. We are, therefore ,of the opinion, that this is a fit case for quashing the order dated 19.10.1993 passed under Section 11 of Cofeposa and remitting the matter to the respondents for fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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