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TMI Blog2021 (6) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... l significance. The submission on behalf of the petitioner that the live link between the prejudicial activities and the purpose of detention is snapped on account of lapse of time does not merit countenance. The material on record, on the other hand, indicates that the petitioner resorted to litigative strategy to evade the execution of the detention order. The very same order was impugned before this Court as well as Delhi High Court. For a considerable period, a restraint order was in force. No sooner the writ petition was dismissed by the Delhi High Court, the respondents initiated the proceedings under section 7 of the COFEPOSA Act before the jurisdictional Magistrate. In this backdrop, if the petitioner is allowed to urge the ground of delay, as a factor which snapped live link, it would amount to putting a premium on the disingenunity on the part of the petitioner. The submission on behalf of the petitioner that, in the intervening period, no prejudicial activity has been attributed to the petitioner does not advance the cause of the petitioner. The Competent Authority has passed the detention order on the premise that the petitioner was the prime character in the smug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Choudhary, that with a view to preventing him from abetting smuggling of goods and dealing in smuggled goods in future, it is necessary to make the following order : Now, therefore, in exercise of the powers conferred by Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that said Shri Karnaram Lumbaji Choudhary, S/o Shri Lumbaji Vanaji Choudhary, R/o Flat No. 2701, Shreepati Arcade, August Kranti Marg, Nana Chowk, Mumbai - 400 007 to be detained and kept in Central Prison facility of Arthur Road, Mumbai. (P.V. Subba Rao) Joint Secretary to the Government of India (iii) Gulabidevi, the wife of the petitioner, filed Writ Petition No. 1729 of 2018 in this Court, assailing the legality and validity of the aforesaid detention order. By an order dated 5th July 2018, this Court dismissed the writ petition as withdrawn. Thereafter, the petitioner preferred Writ Petition, being Writ Petition (Criminal) No. 2167 of 2018 before Delhi High Court assailing the very same order of detention. The Delhi High Court was also persuaded to dismiss the writ petition as withdrawn by order dated 10th October 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os.1 and 2 and Mr. J.P. Yagnik, the learned APP for the State. With the assistance of the learned counsels for the parties, we have also perused the material on record. 5. Dr. Kantawala would urge that the inordinate delay in execution of the impugned order has rendered the impugned order unworthy of execution, at this belated stage. Elaborating the submission, Dr. Kantawala urged that the very purpose for which the impugned order has been passed, namely with a view to prevent the petitioner from abetting smuggling of goods and dealing in smuggled goods in future, is rendered otiose by the passage of time. If, at this stage, the impugned order is executed, it would serve no useful purpose as there is no material to indicate that, in the intervening period, the petitioner has indulged in proscribed activities. The detention of the petitioner, according to Dr. Kantawala, would therefore be a futile exercise. An endevour was made by Dr. Kantawala to draw home the point that the authorities were not at all diligent and serious in executing the impugned order despite the petitioner being available at the addresses furnished in the impugned order and at his native place. 6. Evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aordinary 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 detenu, but prevents their abuse and the perversion of the law in question. (emphasis supplied) 8. Dr.Kantawala, the learned counsel for the petitioner canvassed a submission that the aforesaid five grounds on which the detention order can be challenged at a pre-execution stage are not exhaustive. A successful challenge can be laid to a detention order at a pre-execution stage, on any other ground which would render the order legally unsustainable. According to Dr. Kantawala, an inordinate delay in execution of the detention order which has the effect of snapping the live link between order and the purpose for which it is passed, is a ground on which the detention order can be quashed and set aside. 9. In order to lend support to aforesaid submission, Dr. Kantawala placed a very strong reliance on the judgments of the Supreme Court in the cases of Deepak Bajaj Vs. State of Maharashtra Anr. (2008) 16 SCC 14 and Maqsood Yusuf Merchant Vs. Union of India Anr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tility and the same should not be given effect to any further. 39. Shri Soli Sorabjee also relied on a decision of this Court in Alpesh Navinchandra Shah vs. State of Maharashtra and others 2007(2) SCC 777 (vide para 57) etc. 40. Shri Soli Sorabjee, learned counsel, invited our attention to ground `B' in the Writ Petition in which it has been stated that the petitioner has not done any business after November 2006 when the alleged last consignment was cleared by the petitioner. This averment has not been rebutted in the counter affidavit filed by the respondent. Hence, Shri Sorabjee submitted that there is now no live link between the alleged prejudicial activities and the purpose of detention now. He has also relied upon the decisions of this Court in T.A. Abdul Rehman vs. State of Kerala and others AIR 1990 SC 225 State of Maharashtra vs. Bhaurao Punjabrao Gawande AIR 2008 SC 1705 etc. In our opinion, it is not necessary to go into this submission of Shri Soli Sorabjee since we are of the opinion that the petition deserves to be allowed on the first ground, namely, that the relevant material was not placed before the Detaining Authority, and this vitiates the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds other than those set out in Paragraph 30 of the judgment in Alka Subhash Gadia (Supra) required further examination. The absence of a live link between the incident and the detention order, and also the ground of it having become stale, were specifically adverted to by the Supreme Court, in paragraph 48, which reads as under : 48. In such circumstances, while rejecting Mr. Rohatgi's contention regarding the right of a detenu to be provided with the grounds of detention prior to his arrest, we are of the view that the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those set out in para 30 of the judgment in Alka Subhash Gadia case, requires further examination. There are various pronouncements of the law by this Court, wherein detention orders have been struck down, even without the apprehension of the detenu, on the ground of absence of any live link between the incident for which the detenu was being sought to be detained and the detention order and also on grounds of staleness. These are issues which were not before the Hon'ble Judges deciding Alka Subhash Gadia case. (emphasis supplied) 15. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which legally is the most important aspect of the matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre-execution stage when the grounds of detention has not even been served on him. 16. Thus, if it is held that howsoever the grounds of detention might be weighty and sustainable which persuaded the authorities to pass the order of detention, the same is fit to be quashed merely due to long lapse of time specially when the detenue is allowed to challenge the order of detention even before the order of detention is served on him, he would clearly be offered with a double-edged weapon to use to his advantage circumventing the order of detention. On the one hand, he can challenge the order of detention at the pre-execution stage on any ground, evade the detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be served and finally seek its quashing on the plea that it has lost its live link with the order of detention. This, in my view, would render the very purpose of preventive detention laws as redundant and nugatory which cannot be permitted. On the contrary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law. (emphasis supplied) 16. The position which thus emerges is that in the light of the purpose of preventive detention, undoubtedly, there must be a live and proximate link between the prejudicial activities, as reflected in the grounds of detention, and the stated purpose of detention, namely prevention of those prejudicial activities. An inordinate delay has the tendency to snap the link between the detention order and its purpose. However, the mere fact that a detention order could not be executed for a certain period is not by itself a justifiable ground to quash and set aside the detention order, irrespective of the circumstances which attend its non-execution. The cause for delay is as important as its length. In fact, the cause for delay assumes critical significance. Whether the delay is properly accounted for or remains unexplained? To whom the delay is attributable? Whether the authorities were indolent and did not take effective st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the husband of the respondent is sought to be detained and the circumstances in which he was ordered to be detained has snapped .. (emphasis supplied) 19. A profitable reference can also be made to the judgment of the Supreme Court in the case of Hare Ram Pandey Vs. State of Bihar and Others (2004) 3 SCC 289. In the said case also, the petitioner therein had made all possible efforts to avoid the execution of the detention order. In that backdrop, the Supreme Court repelled the challenge on the score of delay. The observations in paragraph No.4 resemble the facts of the case to a greater extent. They read as under : 4 The case at hand shows how the appellant has tried his best in taking various dilatory tactics to deflect the course of justice. There is no doubt that personal liberty is sacrosanct and has to be protected, but a person who tries to draw red herrings to deflect the course of justice and tries to take advantage of his own wrongs has to be sternly dealt with. It is relevant to note that the appellant had filed the Crl.W.J.C. No. 702 of 1995 before the Patna High Court which was dismissed on 16.2.1996. He filed SLP (Crl.) No. 941 of 1996 bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened. That, precisely, is the state of affairs before us. The order of detention was made on 19th December, 1974. The detenu was found to be absconding. Action was taken pursuant to Section 7 of the COFEPOSA and he was proclaimed as a person absconding under Section 82 of the Criminal Procedure Code. The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in Cinema halls A reward of ₹ 5.000/- was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on 1st February, 1978. We do not have any hesitation in over- ruling the submission of Shri Jethmalani based on the delay in the execution of the order of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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