Punjab-Haryana High Court
Ashok Sadarangani vs State Of Punjab & Others on 27 March, 2014
CRWP No.117 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRWP No.117 of 2014
DATE OF DECISION: March 27, 2014
ASHOK SADARANGANI ...PETITIONER
VERSUS
STATE OF PUNJAB & OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.
1. Whether the judgement should be reported in the digest? Yes
----
PRESENT: MR. VIKRAM K.CHAUDHRI, SR. ADVOCATE
WITH MR. SANJAY AGGARWAL, ADVOCATE
FOR THE PETITIONER.
MR. NIKHIL K.CHOPRA, DAG, PUNJAB
FOR RESPONDENTS NO.1 & 3.
MR. JAI NARAIN, DAG, HARYANA
FOR RESPONDENTS NO.2 & 4.
MR. R.S.RAI, SR.ADVOCATE
WITH MS. ASHIMA MOR, ADVOCATE
FOR RESPONDENTS NO.5 & 6.
M. JEYAPAUL, J.
1. Petitioner Ashok Sadarangani, father of Nitesh Sadarangani has filed the present criminal writ petition praying for issuance of an appropriate order quashing the impugned order of detention bearing No.PSA1200/85/SPL3(A) dated 12.3.2001 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (for short 'COFEPOSA') by the 5th and 6th respondents against Nitesh Sadarangani (hereinafter referred to as 'detenu') and to secure his personal Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -2- liberty in the light of the Constitutional guarantee under Article 21 of the Constitution of India.
2. The brief undisputed facts of the case are as follows.
i) On 11/12.10.2000, officers of SIU M&P Wing intercepted and seized the vehicles containing foreign origin goods including cigarettes which was followed by search at various premises and recording of incriminating statements of various individuals including the detenu Nitesh Sadarangani.
ii) On 12.10.2000, the detenu and one Amrut Solanki were arrested under Section 104 of the Customs Act, 1962 and were produced before the Magistrate on 13.10.2000. Bail application was allowed.
However, the bail order was stayed on the request of the Department. Vide order dated 25.10.2000, bail granted to the detenu was cancelled by the Bombay High Court.
iii) On 9.11.2000, the detenu was enlarged on bail by the Sessions Court.
iv) On 12.3.2001, the impugned detention order was issued by Joyce Shankaran, Principal Secretary to the Government of Maharashtra, on receipt of proposal from the Customs Authorities on the basis of the aforesaid past conduct with a view to preventing him from smuggling of goods in future. There is no dispute on the fact that till then neither any criminal complaint under Section 135 of the Customs Act, 1962 was filed against the detenu nor was any criminal prosecution sanctioned against him under Section 137 of the Customs Act, 1962.
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v) On 6.9.2001, action under Section 7 of the COFEPOSA was taken against the detenu and on 28.9.2001, proclamation was issued by the Chief Metropolitan Magistrate. However, the detenu was absconding and evading detention.
vi) Vide order dated 11.9.2008, at the pre-execution stage, the petitioner was granted liberty by the Hon'ble Supreme Court to challenge the detention order before the High Court, while dismissing his Writ Petition (Crl.) No.95 of 2008. Therefore, a Criminal Writ Petition 1645 of 2010 was filed before the Bombay High Court challenging the impugned detention order dated 12.3.2001 in which, though, initially vide order dated 17.6.2010, execution of the impugned detention order was stayed by the Bombay High Court, however, vide judgement dated 5.1.2011, the petition was finally dismissed by Bombay High Court. An SLP(Crl.) No.2442 of 2012 was preferred against the said judgement and a Writ Petition(Crl.) 35 of 2011 was also filed before the Hon'ble Supreme Court. Both these petitions were dismissed alongwith a batch of other pre-execution petitions of various proposed detenues vide detailed common judgement dated 16.7.2013, which was extensively referred to by both the sides.
vii) The Authorities were thus required to detain the detenu herein and to serve the detention order alongwith the grounds as per the observations contained in the said judgement dated 16.7.2013.
viii) Even after the said judgement dated 16.7.2013, no effort was made to serve the detention order. It is to be noted that neither the Sponsoring Authority nor the Detaining Authority even sought cancellation Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -4- of bail granted to the detenu.
ix) Vide order dated 24.7.2013, the Court of Sessions at Mumbai allowed an application of the detenu seeking deletion of condition to surrender his passport in the bailable offence under the Customs Act wherein it was also recorded that inspite of the ample opportunities, the officer of Customs Department had failed to file his report/Say in the application and thus, an order to proceed with the application sans Say (reply) was passed on 20.7.2013 and the applicant was held entitled to retain his passport. Thereafter, the detenu applied before the learned Magistrate concerned seeking permission to travel abroad. Notice of the said application was undisputedly served in the office of the Sponsoring Authority. Learned Magistrate heard the advocates for the detenu as well as the Sponsoring Authority and vide order dated 13.8.2013 was pleased to grant the detenu herein permission to travel abroad for the period from 15.8.2013 to 1.11.2013 vide order dated 13.8.2013. The roznama of the said Court proceedings shows the presence of the detenu herein as well as the officer of the Sponsoring Authority (Investigating Officer) with their respective advocates. It also records that advocate for the Department (Sponsoring Authority) filed Say/reply to the application.
x) The Sponsoring Authority or the Detaining Authority did not even challenge these orders which were passed in favour of the detenu after judgement dated 16.7.2013 passed by the Hon'ble Supreme Court. There was no coordination between the Sponsoring Authority, Detaining Authority and the Executing Authority.
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xi) Thus, even after the said judgement dated 16.7.2013, the detenu was neither detained despite his presence in Court seeking permission to go abroad nor was any effort made thereafter to prevent him from going abroad or to serve upon him the impugned detention order. He was thus permitted to go abroad despite the pendency of the detention order against him which was required to be served upon the detenu even in terms of the judgement dated 16.7.2013.
xiii) Representations dated 15.10.2013, 26.11.2013 and 21.1.2014 were made by the detenu from his Pune address after the judgement dated 16.7.2013, which were rejected by the Authorities. There is no reference to any of these representations in the instant petition. However, neither the fate of these representations nor the manner of their consideration is impugned in the instant petition.
xiii) Thereafter, the instant writ petition was filed by the petitioner in this Court praying for quashing and setting aside of the impugned detention order dated 12.3.2001 which was yet to be executed; for staying the same in the meantime; for seeking direction to the State of Maharashtra to forthwith consider a fresh representation annexed as Annexure P-11 and for passing any other order for securing the liberty of the detenu.
3. The writ petition was filed relying upon the subsequent orders after judgement dated 16.7.2013 and it was claimed before this Court on the basis thereof that there was absolute casualness and no necessity whatsoever has arisen to detain the detenu. It was also contended that the detenu would be arriving at the Amritsar Airport on 27.1.2014 at 12.55 hours from Doha Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -6- by Flight No.QR1071 and was apprehending his detention at the Airport or at his residence at Gurgaon within the territorial jurisdiction of this Court. Copies of lease deed dated 9.1.2014 evidencing taking on lease a flat at Gurgaon, ticket dated 22.1.2014 of the detenu evidencing his travel proposal from Doha to Amritsar by Flight QR1071 on 27.1.2014 were annexed with the petition. It was also urged that burden to show that detention of a citizen is or would be in accordance with the procedure established by law has always been placed by the Courts on the public authorities because Article 21 of the Constitution of India provides in clear and unambiguous terms that no one shall be detained except in accordance with the procedure established by law and the Courts have always regarded the personal liberty as the most precious possession of mankind and refused to tolerate illegal detention.
4. Notice was issued vide order dated 24.1.2014 and this Court stayed the execution of the impugned detention order till 17.2.2014. When the matter was taken up on 17.2.2014, learned advocate appearing for respondent No.5 sought time to file reply and hence the matter was posted for 24.2.2014, on which date again a short adjournment was granted and the matter was posted for 28.2.2014 and then for 5.3.2014. Mr. H.S.Deol, learned Advocate who had earlier filed memo of appearance alongwith Mr.Mansur Ali, learned Advocate, submitted that he had no instructions from respondents No.5 & 6 and as a consequence none appeared on their behalf. The matter was thus finally posted for 12.3.2014. Learned Sr.Advocate Mr.R.S.Rai alongwith learned Advocate Ms.Ashima Mor Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -7- appeared for respondents No.5 & 6 and opposed the petition. A counter affidavit dated 10.3.2014 was also placed on record inadvertently showing the detenu as petitioner in the cause title. Paragraph 6 of the above counter affidavit read as follows:-
"6. With reference to the Prayers of petition, the petition may be dismissed on the ground of jurisdiction and stay may be vacated and after execution of detention order, the writ petition may be decided on merit."
5. Considering the above prayer, the petitioner (Sic detenu) was thus directed to be present in Court on 20.3.2014 at 10.00 a.m. and it was directed that representative of the Detaining Authority shall be present in the Court on that day alongwith the order of detention, grounds of detention and the documents/reconstructed documents for service on the petitioner (Sic detenu) on 20.3.2014. The detenu as well as the petitioner were present in the Court. A day's time was sought by learned Sr.Counsel appearing for respondents No.5 & 6 for serving of detention order alongwith grounds and documents upon the detenu by the Detaining Authority/Executing Authority. On behalf of the Detaining Authority, it was pointed out that since inadvertently the petitioner and not the detenu was directed to be present on 20.3.2014, the officer of Executing Authority with the documents to be served was not present. Thus, the detenu was directed to again appear on the fixed date to facilitate service of the detention order upon him. Accordingly, on 21.3.2014, the detenu again presented himself and the impugned detention order dated 12.3.2001 alongwith grounds and Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -8- documents were then served upon him.
6. The detenu was compelled by this Court in terms of para 6 of the counter affidavit dated 10.3.2014 to surrender to the impugned detention order and service thereof was effected on the detenu. Thereafter, the petition was taken up for final hearing on merits.
7. The detenu or the petitioner could have chosen to file a fresh petition after service of the detention order and grounds of detention. However, learned Sr.counsel appearing on their behalf also invited the attention to the said prayer made in the counter affidavit of the Detaining Authority to consider the petition on merits after execution of the order and argued on merits as well as the issuance of maintainability. He submitted that since detention order stood executed as of now, the very same petition could be heard as a post-execution petition and considered accordingly and invited my attention, inter alia, to prayer clause (iv) to pass appropriate orders for securing personal liberty of the detenu.
8. Arguments submitted elaborately on both sides were heard.
9. Learned Sr.counsel appearing for the petitioner at the outset took me through the observations and findings contained in the detailed judgement dated 16.7.2013 of the Hon'ble Supreme Court. Learned counsel appearing for the Detaining Authority also took me through the very same judgement.
10. It is seen that in the said judgement dated 16.7.2013 of a Three Judges' Bench of the Hon'ble Supreme Court, all the three Hon'ble Judges gave their separate judgements. The then Hon'ble the Chief Justice in his Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -9- minority judgement recorded relevant facts and was pleased to quash and set aside the impugned detention order. Whereas, the other two Hon'ble Judges dismissed the petitions holding to the effect that unexecuted detention order cannot be quashed merely because the execution of the detention order was pending for several years on which the Authorities had no control, as the proposed detenu had been absconding or evading the execution of the order. It was further held therein that the detention order will have to be served alongwith the grounds and the materials relied upon leaving it upon the respective proposed detenu to challenge the correctness of the order. It was also observed in paragraph 18 and 20 of the judgement delivered by Hon'ble Justice Gyan Sudha Misra that Court or the appropriate Authority will have to consider as to what have been the activities of the detenu after the order of detention was passed and that these subsequent events or conduct would be a matter for consideration after the service of the grounds. It was further held that the order of detention was not fit to be quashed, but fit to be served on the detenu leaving it open for him to challenge it thereafter by taking recourse to the remedies available to him under the law. Hon'ble Justice J.Chelameswar in his separate judgement was pleased to hold that if proceedings under 7 of the COFEPOSA are initiated consequent upon the abscondance of the proposed detenu, the challenge to the detention order on live nexus theory is impermissible. By relying on these observations, it was submitted that the Authorities were thus required to detain the detenu herein and serve the detention order alongwith the grounds as per the observations contained in Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -10- the judgement dated 16.7.2013.
11. Learned Sr.counsel appearing for the petitioner, therefore, submitted as follows:
i) Even after the said judgement dated 16.7.2013, no effort was made to serve the detention order.
ii) Neither the Sponsoring Authority nor the Detaining Authority even sought cancellation of bail granted to the detenu.
iii) Vide order dated 24.7.2013, the Court of Sessions at Mumbai allowed the application of the detenu seeking deletion of condition to surrender his passport in a case under the Customs Act, wherein it was also recorded that inspite of ample opportunities, the officer of Customs Department had failed to file his report/Say to the application and an order to proceed with the application sans Say was passed on 20.7.2013. It was further held that the applicant was entitled to retain his passport.
iv) Thereafter the detenu applied before the learned Judicial Magistrate concerned seeking permission to travel abroad. Notice of the said application was undisputedly served in the office of the Sponsoring Authority. Learned Judicial Magistrate heard the Advocates for the detenu as well as for the Sponsoring Authority and vide order dated 13.8.2013, he was pleased to grant the detenu herein permission to travel abroad for the period from 15.8.2013 to 1.11.2013 vide order dated 13.8.2013. The roznama of the said Court proceedings dated 13.8.2013 shows the physical presence of the detenu herein as well as the officer of the Sponsoring Authority (Investigating Officer) with their respective Advocates. Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -11-
v) The Sponsoring Authority or the Detaining Authority did not even challenge these orders which were passed in favour of the detenu after judgement dated 16.7.2013 of the Hon'ble Supreme Court.
vi) Thus, even after said judgement dated 16.7.2013, the detenu was neither detained despite his appearance in Court seeking permission to go abroad nor was any effort made thereafter to prevent him from going abroad or to serve upon him the impugned detention order. He was thus permitted to go abroad despite the pendency of the detention order against him which was required to be served upon the detenu even as per the terms of the judgement of the Hon'ble Supreme Court dated 16.7.2013.
vii) He submitted that delay and casualness in execution may be considered only from 16.7.2013 and not before that, in view of the above judgement dated 16.7.2013.
viii) Learned Sr.counsel appearing for the petitioner submitted a compilation of precedents and also relied upon Instructions dated 8.11. 2006 issued by the Joint Secretary, COFEPOSA, New Delhi to demonstrate ample casualness exhibited by the Authorities concerned in the matter. He also submitted that the detention order was also vitiated for non-consideration of the possibility of recourse to ordinary law of land in the grounds of detention before resorting to the draconian preventive detention matter.
ix) He submitted that the burden lies on the Detaining Authority to justify and to show validity of the detention order. He also highlighted the fact that the detenu has not come to adverse notice of the Department for indulging in any prejudicial smuggling activity since issuance of detention Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -12- order on 12.3.2001.
12. On behalf of the respondents, learned Sr.counsel argued that the petitioner has concealed proclamation orders, an order dated 11.9.2008 of the Hon'ble Supreme Court in which liberty was granted to approach the High Court challenging the detention order and various representations made from Pune address and their rejections. However, so far as the merit of the grounds urged in the petition is concerned, he could not justify the inaction and callousness of the Authorities in not serving the detention order upon the detenu even when he was present in Court on 13.8.2013. He further submitted that merits of the detention order were earlier considered by the Hon'ble Supreme Court and the petition was dismissed on 16.7.2013. It was not open for the petitioner to raise any of the grounds taken before this Court for seeking quashing of the detention order. He vehemently submitted that this Court lacks territorial jurisdiction to deal with the prayer for quashing of the detention order issued in the State of Maharashtra, as no part of cause of action under Article 226(2) of the Constitution of India has arisen within the jurisdiction of this Court.
13. I have heard all the parties at length. I have also carefully perused the records placed before me. I find that the following issues are to be determined:-
i) Whether there exists any bar in considering the grounds of challenge urged by the petitioner in the light of dismissal of his earlier petition by the Hon'ble Bombay High Court as well by Hon'ble Supreme Court.
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ii) Whether no part of cause of action has arisen within the jurisdiction of this Court to consider the challenge to the impugned detention order.
iii) Whether failure to serve the detention order and detain the detenu even after judgement of the Hon'ble Supreme Court dated 16.7.2013, when he appeared in Court on 13.8.2013 vitiates the order of detention.
iv) Whether respondents are correct in claiming that ascertaining the actual position regarding recourse to ordinary punitive law of the land is wholly irrelevant having no bearing whatsoever on the issue of preventive detention.
14. I do not find any merit in the stand taken by the respondents to any of the above issues. The findings in the earlier rejection by the Hon'ble Supreme Court were in fact in the context of examining the challenge to the detention order at pre-execution stage. Since the detention order stands executed as of now, there cannot, therefore, exit any bar in considering the merits of the grounds of challenge urged by the detenu. The final consideration of the grounds urged is only after execution of the detention order as prayed by the Detaining Authority. The respondents could not show any binding precedent where the Courts have refused to consider the challenge of a detenu in a habeas corpus petition after execution of the detention order, merely because challenge was unsuccessful at pre- execution stage. Even otherwise, the main ground of absolute casualness even after judgement dated 16.7.2013 was not raised earlier by the detenu. Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -14- This Court cannot permit the Authorities to take shelter under such technical pleas in a writ petition filed challenging preventive detention order.
15. On the second issue concerning territorial jurisdiction, it is not disputed that the petitioner also has a residence in Gurgaon in the State of Haryana. Notice dated 26.2.2014 addressed to the detenu has been received at his residence at Gurgaon under Section 6(1) of the SAFEMA Act, 1976 requiring the detenu referred as the "affected person" on the basis of the impugned detention order issued under COFEPOSA to prove that the vehicle referred in the notice bearing Registration No.HR26-CE-2610 has been acquired out of legal source of income and to show cause as to why the said vehicle shall not be forfeited to the Central Government. It is not disputed that the detenu actually arrived from Doha at Amritsar Airport where he was having apprehension of being detained. The Detaining Authority deputed its representative for the purpose of service of detention order and grounds upon the detenu within the jurisdiction of this Court and thereupon the detention order and grounds were served upon him in this Court, albeit that after the orders of this Court. The petitioner was thus detained in the jurisdiction of this Court. Therefore, I hold that merely because respondents No.5 & 6 have doubts on the bona fides of the petitioner in taking a leased residential premises within the jurisdiction of this Court, it cannot be held that no part of cause of action has arisen in the jurisdiction of this Court to consider the challenge to the detention order even after its execution in the jurisdiction of this Court. Although certain judgements were cited by the respondents, however, they could not show Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -15- any precedent where jurisdiction was held as lacking despite such part of cause of action arising in the jurisdiction of the High Court. Moreover, there is a long line of decisions rendered by various High Courts substantiating that these facts would constitute part of cause of action that has arisen in the territorial jurisdiction of this Court.
16. In Umed Mal vs. Union of India, 1998 CRI.L.J. 3465 it has been held by the Full Bench of Rajasthan High Court that:
"21. Applying the above tests, we cannot escape the conclusion that factual detention of a person at a particular place would supply cause of action for challenging the detention. ....... If detention has to retain its preventive character and is not to be allowed to become punitive in practice, if not in law, we have to reject the narrow construction put on the concept of partial cause of action by the Division Bench in Sewa Ram's case (supra) and accept a liberal, pragmatic and practical construction which would be in consonance with the letter and spirit of Art.226(2) of the Constitution.
23. We are of the opinion that service of the detention order and taking of the detenue in custody in execution of such an order within the territories of the State of Rajasthan shall supply part of cause of action for challenging the detention order.
24. We therefore hold that in this case, because of the service and execution of the detention order within the territories of Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -16- the State of Rajasthan, this Court will have territorial jurisdiction to entertain the petition ......"
17. In Ramchand Santumal Bhatia vs. Tarun Roy, 1988 CRI.L.J. 641, it has been held by the Bombay High Court that:
"5. ....To sum up, Ulhasnagar being the place where the detenu was taken into custody and where she was served with the order and grounds of detention, suffice to attract the jurisdiction of this Court..."
18. In Nazima Begum vs. Joint Secretary, 1993 CRI.L.J. 1336, it has been held by the Madras High Court that:
"9. .....In the instant case, the effect of the order, namely, the detention order which is the subject matter of the writ petition, was served on the detenu only at Calcutta where he was detained and as such the Calcutta High Court alone has got jurisdiction. Even the order of rejection was served on the detenu at Calcutta and only a copy of the rejection order was served on by the petitioner (wife of the detenu) at Madras."
19. In Shareefa Ummer vs. Joint Secretary to the Govt. of India, 1998 CRI.L.J. 185, it has been held by the Division Bench of Kerala High Court that:
"11. ....So far as the present case is concerned, the order of detention was served on the detenu in Kerala. He was arrested in Kerala and he was detained in the prison at Trivandrum in the State of Kerala. According to us, these are essential facts Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -17- which form part of the cause of action. Hence, we hold that this Court has got jurisdiction and hence the Original Petition is maintainable in this Court."
20. In Kamala Sarkar vs. State of Bihar, 2002 CRI.L.J. 1414, it has been held by the Division Bench of Calcutta High Court that:
"22. In P.Subramani v. State of Karnataka reported in 1990 Cri.L.J. 1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case (AIR 1985 SC 1289) (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating- 'the ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu. His liberty was deprived in the same place and the grounds of detention was also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the petitioner is concerned and, therefore, a considerably part of the cause of action took place in the State of Tamil Nadu, conferring jurisdiction upon this Court.
23. Yet again in Smt. Manjulaben vs. C.T.A. Pillay reported in 1976 Cri.L.J. 889, Desai, J. (as His Lordship then was) speaking for the Division Bench of Gujarat High Court held that 'as initial detention of detenu which was at Baroda is continued, the same furnishes a part of cause of action to the Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -18- detenus which arises within the jurisdiction of this Court'. So taking into consideration the provision of Article 226(1A) read with provision of Article 19, Clauses (d) and (e) for the purpose of coming at conclusion that in relation to deprivation of liberty of the detenu having taken place within the territorial jurisdiction of the said Court, a part of cause of action was held to have arisen within the said jurisdiction.
24. Having regard to the fact that in the instant case the detenu is still detained in Siliguri Special Jail which is within the jurisdiction of this Court and in the event the said detention is held to be illegal, a writ of habeas corpus may have to be issued; pursuant whereto, the detenu may be released, we are of the opinion, that a part of the cause of action has arisen within the jurisdiction of this Court and as such the writ application is maintainable."
21. In Reena Ranka vs. Union of India, 1991 CrI.L.J. 3195, it has been held by the Division Bench of Andhra Pradesh High Court that:
"17. ..... and that the unjust rejection of the representation without assigning any reasons whatsoever and communicated to the petitioner at Hyderabad amounted to deprivation of a valuable right under Art.21 of the Constitution of India. This Court has, therefore, undoubted jurisdiction to entertain the Writ Petition as part of cause of action arose at Hyderabad." Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -19-
22. In C.Natesan vs. State of T.N. And others, 1999 CriLJ 1382, it has been held by the Madras High Court that:-
"In cases of preventive detention, orders of detention are passed some times by an authority outside the State and it is executed within the State where the detenu is residing. Many a case on the validity of these detentions are challenged before this Court and this Court has always entertained those cases and disposed of them one way or the other. Therefore, when the personal liberty of a citizen is sought to be infringed pursuant to an order passed elsewhere, it is always open to the person concerned to move the Court within whose jurisdiction his personal liberty is sought to be infringed, for necessary reliefs."
23. In D.N.Anand vs. Union of India, Ministry of Finance,1993(2) RCR(Criminal) 104, this Court having considered the fact that one of the residential addresses of the detenu although disputed by the Detaining Authority was within the jurisdiction of this Court held that the petition challenging the detention order issued in Delhi was maintainable. It has been observed therein in paragraph 15 as under:-
"15. Some effort was made by the learned counsel for the Union of India that the petitioner was a resident of Delhi and not of Ambala as claimed by him and as such no cause of action arose to him within the jurisdiction of this Court. A reference to the pleadings in paras 7 of the return will show Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -20- that summons were sent to the petitioner at his Ambala address which were stated to have been received back with the postal remarks that the addressee was not available at his shop inspite of repeated visits. Even in the detention order Annexure P-1, the petitioner has been described with his two addresses one is 7/4, Roop Nagar, Delhi and the second is 66, Mall Road, Ambala Cantt. The authorities had thus, gone after the petitioner both at his Delhi address as well as at his Ambala address. It cannot, thus, be gainfully said that no cause of action arose to the petitioner within the jurisdiction of this Court. This contention of the learned counsel is refuted."
24. In S.P.Goyal vs. Union of India, 2003(1) RCR (Criminal) 83, after considering, inter alia, the said judgement in D.N.Anand's case (supra), this Court held as follows:-
"13. ...... The petitioner is also apprehending his arrest at the place of his residence i.e. Ludhiana, within the territorial jurisdiction of this court. Under these circumstances, in my opinion, it can certainly be said that a part of the cause of action has arisen within the territorial jurisdiction of this court. That being so, this court would certainly have the jurisdiction to entertain and decide the present writ petition."
25. In the case of Tejinder Singh Makkar vs. State of Punjab and others, CRWP No.912 of 2007 dated 13.2.2008, this Court relying upon Section 4 of the COFEPOSA Act, 1974 and the judgements in D.N.Anand's Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -21- case (supra), Tirlok Nath Mittal vs. Union of India, 1994(1) RCR (Criminal) 247 and Mrs. Arvind Shergill vs. Union of India, 1999(4) RCR (Criminal) 781 observed as follows:-
"Moreover, if the contention of the learned counsel for respondents no.2 and 3 is accepted, then it implies that a person, whose life and liberty is threatened by passing an order elsewhere in the country, will have to forego his liberty and right to approach the Court for a threatened violation except at the Court which has jurisdiction over the authority passing such an order. I am afraid, this interpretation can never be granted. A person, whose fundamental right of life and liberty is threatened, has every right to approach the Court where any such authority, in the garb of an order of detention, seeks to curtail such life and liberty.
Therefore, the contention that this Court has no jurisdiction to entertain this petition is negated."
This petition, however, was dismissed on merits. But in LPA preferred there against reported in 2009(4) RCR (Criminal) 465, the detention order was quashed by the Division Bench of this Court and thus, territorial jurisdiction was also upheld.
26. In view of the above consistent views, I find no merit in the objections raised by the respondents. Learned Sr.counsel for the Detaining Authority relied upon an unreported decision of the Hon'ble Allahabad High Court in Crl.M. Writ Petition No.14978 of 2012 dated 11.10.2012 wherein Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -22- the said High Court refused to entertain a petition despite there being residence of the petitioner in its jurisdiction. It is seen from the said judgement that firstly, the service of detention order was not effected in that case within the jurisdiction of that High Court and secondly and more importantly, it was in fact a second petition filed on the same set of facts which was barred under Rule 7 of the Allahabad High Court Rules, 1952. Thus, the said judgement is not applicable to the facts of the instant case. Therefore, the objections regarding lack of cause of action within the territorial jurisdiction of this Court stands rejected.
27. The Hon'ble Delhi High Court (DB) in Charan Singh vs. Union of India, LPA No.9 of 1993 dated 27.5.2008 was pleased to direct the appellant therein to surrender to the detention order which was not executed since 1991 and while directing the service of the order and grounds with documents relied upon on the proposed detenu therein refrained the Detaining Authority to take any coercive steps against the proposed detenu for a period of 10 days thereafter so as to enable the appellant to take recourse to appropriate remedies. It is to be noted that SLP(Crl.) 5157- 5158/2008 filed there against by the Union of India was heard and dismissed by the Hon'ble Supreme Court vide order dated 28.7.2008.
28. Moreover, when this Court declined to set aside the detention order before its execution and directed the detenu to surrender, the petitioner could have preferred a fresh petition or could have sought consideration of the instant petition, but after the surrender of the detenu. Since the petitioner chose to latter option, this Court was obliged to Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -23- consider the merits of the petition as post-detention petition, albeit after surrender of the detenu. It is a settled position of law that if any petition has not matured initially, the Court can await its maturity for consideration thereafter. No right was conferred upon the Detaining Authority to absolve herself from the obligation to satisfy this Court regarding the validity of the order of detention issued by her.
29. In Ummu Sabeena vs. State of Kerala and others, (2011) 10 SCC 781, the Hon'ble Supreme Court held that in dealing with writ petitions of habeas corpus, mere technical objections raised by the Detaining Authority concerning pleadings cannot be entertained and observed thus:
"18. ....... But, insofar as the question of technical plea which has been raised by the learned counsel on the question of prayer in the Habeas Corpus petition is concerned, we are constrained to observe that in dealing with writs of Habeas Corpus, such technical objections cannot be entertained by this Court."
30. Further in Smt.Ichhu Devi Choraria vs. Union of India and others, (1980) 4 SCC 531, the Hon'ble Supreme Court held in para 4 that in a writ of habeas corpus, strict rules of pleadings are not to be followed. It would be no argument for the detaining authority to say that a particular ground was not urged in the petition. The Court is bound to satisfy itself that all the safeuards provided by law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law.
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31. In Abdul Nasar Adam Ismail through Abdul Basheer Adam Ismail vs. State of Maharashtra and Ors., (2013) 4 SCC 435, the Hon'ble Supreme Court observed as follows:-
"5. So far as the second point urged by the counsel viz. that there is no independent consideration of the representation by the detaining authority is concerned, we must mention that this point was not raised in the petition nor urged before the High Court. It is not even raised in the present appeal. Ordinarily, we would not have allowed the counsel to raise any point in this court, which was not urged before the High Court. However, we are mindful of the decision of this Court in Mohinuddin @ Moin Master v. District Magistrate, Beed & Ors., 1987(2) R.C.R.(Criminal) 338 : 1987(4) SCC 58 wherein this Court has held that the habeas corpus petition cannot be dismissed on the ground of imperfect pleadings. We have, therefore, allowed learned counsel to canvass this point."
Thus, neither the technical objections nor alleged imperfect pleadings can deter the Court from considering a challenge to a preventive detention matter, that too, when the detention order stands executed.
32. I find that even after the said judgement dated 16.7.2013 of the Hon'ble Supreme Court, no effort was made to serve the order of detention on the detenu. Neither the Sponsoring Authority nor the Detaining Authority even sought cancellation of bail granted to the detenu. It is also seen that while passing the order dated 24.7.2013, the Court of Sessions at Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -25- Mumbai allowed the prayer of the detenu seeking deletion of condition to surrender his passport in the offence under the Customs Act. It was also recorded by the Court of Sessions at Mumbai that inspite of ample opportunities afforded, the officer of the Customs Department, i.e. the Sponsoring Authority had failed to file his reply/Say to the application. Therefore, an order favourable to the detenu to proceed with the application sans Say was passed on 20.7.2013. It was further held therein that the applicant was entitled to retain his passport. The absolute casualness, however, does not cease with this. Thereafter the detenu applied before the learned Judicial Magistrate concerned seeking permission to travel abroad. Notice in that application was undisputably served in the office of the Sponsoring Authority and learned Judicial Magistrate heard the learned Advocates for the detenu as well as for the Sponsoring Authority and was pleased to grant the detenu herein permission to leave for abroad for the period from 15.8.2013 to 1.11.2013 vide order dated 13.8.2013. Obviously, it was not brought by the Sponsoring Authority or the Detaining Authority to the notice of the Court that the detention order was required to be served upon the detenu. In fact roznama of the said Court proceedings on 13.8.2013 shows the presence of not only the detenu, but also the officer of Sponsoring Authority with their respective advocates. This roznama also records that learned Advocate for the Department (Sponsoring Authority) filed Say/reply to the said application. These judicial records are not in dispute. It appears that there is no coordination between the Sponsoring Authority and the Detaining Authority. In this undisputed factual position Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -26- showing apparent laxity and casualness of the Authorities in the matter of preventive detention, I find no reason to uphold the detention order. My view is also fortified by the following precedents and authorities.
33. I have carefully considered the Instructions dated 8.11.2006 issued by the Joint Secretary, COFEPOSA, New Delhi addressed to all Sponsoring Authorities emphasizing the requirement to keep track of Court proceedings, if any, going on in which COFEPOSA absconders are likely to appear before the Courts besides keeping close liaison with the Executing Authorities to ensure that proposed detenu is apprehended at the earliest. These Instructions dated 8.11.2006 also refer to earlier Circular No.671/6/2001-Cus.VIII dated 12.7.2001 and Circular F.No.686/316/2001- Cus.VIII dated 25.8.2005. These Instructions also refer to a case where a COFEPOSA absconder appeared before the Court wherein the officers of the prosecution cell of the Sponsoring Authority were present, but he was not apprehended. To avoid this mistake, various measures were suggested in the said Instructions.
34. In A.Mohammed Farook vs. Jt. Secy. To G.O.I. and others, (2000) 2 SCC 360, the detention order was quashed mainly on the ground that though detenu was present in the Court of Addl.Chief Metropolitan Magistrate on 25.2.1999 and 25.3.1999, neither the Detaining Authority nor the Executing Authority nor the Sponsoring Authority was vigilant enough to serve the order of detention on the detenu.
35. In P.M.Hari Kumar vs. Union of India and others, (1995) 5 SCC 691, the Hon'ble Supreme Court in para 17 and 20 thereof had Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -27- observed that if the Authorities were really sincere and anxious to serve the order of detention without any delay, it was expected of them to approach High Court or at least the Court which initially granted bail for its cancellation. However, in the said case, no steps for cancellation of bail were taken after taking action under Section 7 of the COFEPOSA and the Authorities also did not bring to the notice of the Court about the order of detention passed against the detenu. Having held therein that no sincere and earnest efforts were made and no urgent and effective steps were taken to serve the detention order on the petitioner therein the order of detention imposed therein was quashed. The judgement of the Hon'ble Supreme Court in Bhanwarlal Ganeshmalji vs. State of Tamil Nadu, (1979) 1 SCC 465 was also considered in the said judgement in P.M.Hari Kumar's case (supra).
36. Even in the instant case, there is no dispute on the fact that neither the Sponsoring Authority nor the Detaining Authority was diligent enough to immediately challenge these orders passed in favour of the detenu after the judgement dated 16.7.2013 of the Hon'ble Supreme Court to prevent him from going abroad and to detain him. No effort was made to seek cancellation of bail granted to him. I find that after the said judgement dated 16.7.2013 of the Hon'ble Supreme Court, firstly the detenu ought to have been detained forthwith on his presence in Court for seeking permission to go abroad and secondly, the Authorities ought to have made sincere efforts to prevent the detenu from going abroad or to serve upon him the impugned detention order at the first available opportunity. However, Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -28- the detenu was permitted to go abroad despite the pendency of the impugned detention order against him.
37. The Sponsoring Authority as well as the Detaining Authority had failed to take requisite care that was required to sustain the preventive detention order to keep the petitioner in detention without any trial. I am unable to ignore that in the instant case despite the judgement dated 16.7.2013 of the Hon'ble Supreme Court, there was neither proper opposition by the Sponsoring Authority or the Detaining Authority to the prayer for grant of permission to travel abroad nor was any effort thereafter taken to serve the detention order when the detenu was leaving for abroad despite absence of any stay on execution of the detention order. This proved absolute casualness vitiates the impugned detention order. It is a settled law that in the laxity of the Authorities lies the liberty of the detenu.
38. There has been no coordination between the Detaining Authority, Sponsoring Authority and the Executing Authority as observed hereinabove in this regard by the Hon'ble Bombay High Court in Nafis Ahmed Ansari vs. The State of Maharashtra, 2003 (4) MhLJ 845.
" 14. ..... We find that there is no coordination in between the offices of the DRI, detaining authority and the executing authority-PCB, CID. Even though for the sake of convenience these are the separate branches, however, for a detention purpose they are one and the same and they cannot pass on the responsibility to the other. They are all under the obligation to see that the law laid down by this court and the Apex Court is Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -29- properly followed. We hope that all these authorities will take a note of these observations and will develop a procedure which will coordinate three branches, namely, Sponsoring Authority, DRI, Detaining Authority-PCB, CID and the State is hereby directed to take appropriate step for the co-ordination of these authorities."
39. I find another factual infirmity in the impugned detention order. In the instant case, in the grounds of detention, the Detaining Authority has failed to advert to the factual position regarding recourse to ordinary punitive law of the land. The Detaining Authority is obliged to inquire about the status of the prosecution proceedings, if any, and if there is none, about the stand of the Sponsoring Authority concerning initiation of prosecution. In the instant case, offence under Customs Act, 1962 is referred, however, requisite satisfaction on the vital aspect concerning prosecution of the detenu in this case is not reflected from the grounds of detention. The Detaining Authority was thus not alive to the actual fact as to whether prosecution proceedings were initiated or were likely to be initiated against the petitioner in the offence alleged against him. The reliance of the petitioner on Somnath Kundu vs. Union of India and others, 1987 (32) ELT 657(Delhi) and Shri Ram Goyal vs. Union of India, 1984 Criminal Law Journal 1048 is therefore apt and the detention order is vitiated on the vice of non-application of mind on this very vital aspect.
40. In Ashutosh Lahiry vs. State of Delhi, AIR 1953 SC 451, Six Judges' Bench of Hon'ble Supreme Court observed thus: Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -30-
"11. .....There could be no public proof of 'mala fides' on the part of the Executive Authorities than a use of extraordinary provisions contained in the Act for the purposes for which ordinary law is quite sufficient....."
41. In Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244 and Munagala Yadamma vs. State of Andhra Pradesh and others (2012) 2 SCC 386, it was held by the Hon'ble Supreme Court that if the offences alleged are of a nature which can be dealt with under the ordinary law of the land, taking recourse to the preventive detention as a substitute for the ordinary punitive law would be contrary to the Constitutional guarantees enshrined in Article 19 & 21 of the Constitution of India. Therefore, it was necessary for the Detaining Authority to record its satisfaction regarding the actual status of the prosecution proceedings or its possibility under ordinary criminal law and then to arrive at a satisfaction as to why the same was not sufficient before resorting to drastic provisions of preventive detention. Lack of such an exercise vitiates the subjective satisfaction and I find that detention order, therefore, suffers even on this count as well.
42. Further, I also find that affidavit dated 10.3.2014 affirmed by Smt.Medha Gadgil, Addl.Chief Secretary (Appeals & Security) is without any sense of responsibility and requisite care expected in a preventive detention matter. On solemn affirmation she has stated;
"1) ..... In exercise of the said power, as the Detaining Authority after considering the case of the detenu, I have issued the Order of Detention No.PSA1200/85/SPL-3(A) dated 12.3.2001 Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -31- on the basis of grounds of detention formulated."
"3) ..... I state that I am filing this affidavit on the basis of record available with the department and facts within my knowledge being then Principal Secretary. .....".
However, perusal of the impugned detention order clearly shows that same was issued and signed not by her, but by one Joyce Shankaran as then Principal Secretary to the Government of Maharashtra. If the affidavit is to be believed, on this sole ground alone, the detention order would be patently illegal. In any event, such affidavit further fortifies absolute casualness in the matter of preventive detention which is fatal to the order of detention.
43. It is a matter of fact that the Detaining Authority has not alleged any further indulgence of the detenu in any prejudicial activity after the issuance of the impugned detention order on 12.3.2001.
44. On the allegation made on behalf of the Detaining Authority regarding concealment or suppression of facts, I find it appropriate to refer on this aspect a leading judgement of the Hon'ble Supreme Court in M/s S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and others, (2004) 7 SCC 166 wherein it has been held as follows:-
"13. As a general rules, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -32- the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court have taken. .......
....15. In this case, admittedly the appellant has withdrawn the suit two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court's reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the mater was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.
16. As the issue of suppression was the only ground on which the High Court has rejected the appellant's plea for relief, we would ordinarily have set aside the order of the High Court in view of our finding and remanded back to the High Court for decision of the matter on merits. But the matter has been argued on merits before us and we are in a position to Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -33- dispose of the mater which we accordingly proceed to do."
45. I find that the factum of making earlier/recent representations from the address at Pune and dismissal thereof was immaterial and inconsequential for two reasons. Firstly, the petitioner has not impugned the rejection or the process of consideration any of the representations said to be not disclosed or annexed to the petition. Secondly, the petitioner has clearly shown in the memo of parties the address of the detenu at Gurgaon as well as at Pune. Similarly, non-disclosure of the first petition before the Hon'ble Supreme Court which was simply dismissed as withdrawn with liberty to approach the High Court is also not a material fact when the detenu has clearly admitted that his pre-execution challenge was rejected by Bombay High Court as well as the Hon'ble Supreme Court and the detailed final judgement dated 16.7.2013 passed by Hon'ble Supreme Court dismissing his pre-execution challenge has also been annexed to the petition. The judgement which extensively dealt with the issuance of proclamation and action under Section 7 of the COFEPOSA is also annexed to the petition. Therefore, in the facts of the instant case, I do not find any merit in these technical objections of suppression of facts raised on behalf of the Detaining Authority which chose not to deal with the merits of the limited grounds raised in the petition in the counter affidavit filed by it.
46. While setting aside the impugned detention order, I find it necessary to quote the following extract from the judgement of the Constitution Bench in Kamlesh Kumar Ishwardas Patel vs. Union of India, (1995) 4 SCC 51:
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"49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenus the cases do not justify interference with the orders of the detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained.
These safeguards are required to be "jealously watched and enforced by the Court." Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -35- this Court while rejecting a similar submission :
"May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralyse the India economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus."
[See Rattan Singh v. State of Punjab, 1981(4) SCC 481 at p. 488]
50. We have, therefore, no hesitation in rejecting this contention."
47. Before concluding the judgement, I find it appropriate to observe that the Detaining Authority was in fact granted ample opportunity and it could have filed a proper affidavit in a responsible manner dealing with the case on merits as well. However, the Detaining Authority chose not to file any proper affidavit dealing in details with the merits of the case. Instead, the Detaining Authority through its Sr.counsel merely tendered a list of dates and some averments therein taking shelter under technical objection of alleged suppression which was also found without any merit. Such laxity in dealing with the preventive detention matters at every stage is strongly deprecated.
48. In the result, the prayer for quashing of the impugned detention order No.PSA1200/85/SPL3(A) dated 12.3.2001, executed upon the detenu Gulati Sumit 2014.03.27 17:33 I attest to the accuracy and integrity of this document CRWP No.117 of 2014 -36- Nitesh Ashok Sadarangani is allowed and the said impugned detention order against the detenu is quashed and set aside. The detenu is thus set at liberty and released forthwith from the custody of this Court.
March 27, 2014 (M. JEYAPAUL)
Gulati JUDGE
Gulati Sumit
2014.03.27 17:33
I attest to the accuracy and
integrity of this document