SUPREME COURT OF INDIA
Union of India
Vs.
Vidya Bagaria
Crl.A.No.86 of 1999
(Doraiswamy Raju and Arijit Pasayat JJ.)
05.05.2004
JUDGMENT
Arijit Pasayat, J.
1. The Union of India, Joint Secretary COFEPOSA, Commission of Customs-II,
Madras and State of Tamil Nadu question the legality of the judgment rendered
by a learned Single Judge of the Punjab and Haryana High Court quashing order
of detention dated 19.12.95 passed in respect of one Ratan Bagaria under
Section 3(1) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA
Act'). Before the order of detention could be served on Shri Ratan Bagaria, his
wife Smt. Vidya Bagaria, the respondent herein, filed Habeas Corpus writ
petition under Article 226 of the Constitution of India, 1950 (in short
'the Constitution') praying for issuance of writ or any other order quashing
the order of detention passed by appellant no.2 herein who was the respondent
no.2 in the writ petition. Several grounds touching legality of grounds on
which the order of detention was passed were raised in the writ petition. The
present appellants filed a counter affidavit. Primarily an objection was taken
regarding the maintainability of the writ application before the order of
detention was actually served and the detenu taken into custody. The various
stands regarding the legality of the grounds of detention as have been raised
by the writ petitioner were also refuted and it was submitted that grounds
stated were germane and relevant for directing detention. The High Court
elaborately dealt with the legality of the grounds on which the order of
detention was founded. But as regards the preliminary objection about the
maintainability of the writ petition even before the order of detention was
actually served, the same was dealt with and disposed of in a very casual and
summary manner, observing without even properly adverting to the law laid down
by this Court, brought specifically to its notice as follows:
"Before I proceed further into the matter, I may say that the case law
which has been relied upon by Mr. Sharma is off the point."
2. The writ petition was allowed holding that grounds indicated in the order of
detention were not legally sustainable and order of detention was
unsustainable.
3. Learned counsel for the appellants submitted that the High Court has not
dealt with the most vital aspect regarding the very maintainability of the writ
petition even before the order of detention was served and the detenu
incarcerated in prison in a very cryptic manner before rejecting the plea.
4. Per contra, learned counsel for the respondent submitted that the reasonings
given by the High Court clearly indicate that the writ petition was
maintainable and the legality of grounds were also duly tested. No infirmity
therefore can be found with the order of the High Court. In any event, it was
submitted that the order of detention was passed nearly nine years back and the
purported apprehensions and the alleged objectionable activities of Mr. Bagaria
have no relevance presently.
5. The question whether the detenu or any one on his behalf is entitled to
challenge the detention order without the detenu submitting or surrendering to
it has been examined by this Court on various occasions. One of the leading
judgments on the subject is Additional Secretary to the Govt. of India and Ors.
vs. Smt. Alka Subhash Gadia and Anr. case. In para 12 of the said judgment, it
was observed by this Court as under:
"12. This is not to say that the jurisdiction of the High Court and the
Supreme Court under Articles 226 and 32 respectively has no role to play once
the detention punitive or preventive- is shown to have been made under the law
so made for the purpose. This is to point out the limitations, which the High
Court and the Supreme Court have to observe while exercising their respective
jurisdiction in such cases. These limitations are normal and well known, and
are self-imposed as a matter of prudence, propriety, policy and practice and
are observed while dealing with cases under all laws. Though the Constitution
does not place any restriction on these powers, the judicial decision have
evolved them over a period of years taking into consideration the nature of the
legislation or of the order or decision complained of, the need to balance the
rights and interests of the individual as against those of the society, the
circumstances under which and the persons by whom the jurisdiction is invoked,
the nature of relief sought, etc. To illustrate these limitations,
(i) in the exercise of their discretionary jurisdiction the High Court and the
Supreme Court do not, as Courts of appeal or revision, correct mere errors of
law or of facts,
(ii) the resort to the said jurisdiction is not permitted as an alternative
remedy for relief which may be obtained by suit or other mode prescribed by
statute. Where it is open to the aggrieved person to move another Tribunal or even
itself in another jurisdiction for obtaining redress in the manner provided in
the statute, the Court does not, by exercising the writ jurisdiction, permit
the machinery created by the statute to be by-passed;
(iii) it does not generally enter upon the determination of questions which
demand an elaborate examination of evidence to establish the right to enforce
which the writ is claimed;
(iv) it does not interfere on the merits with the determination of the issues
made by the authority invested with statutory power, particularly when they
relate to matters calling for expertise, unless there are exceptional
circumstances calling for judicial intervention, such as, where the
determination is mala fide or is prompted by the extraneous considerations or is
made in contravention of the principles of natural justice of any
constitutional provision,
(v) the Court may also intervene where (a) the authority acting under the
concerned law does not have the requisite authority or the order which is
purported to have been passed under the law is not warranted or is in breach of
the provisions of the concerned law or the person against whom the action is
taken is not the person against whom the order is directed, or (b) when the
authority has exceeded its power or jurisdiction or has failed or refused to
exercise jurisdiction vested in it; or (c) where the authority has not applied
its mind at all or has exercised its power dishonestly or for an improper
purpose; (vi) where the Court cannot grant a final relief, the Court does not
entertain petition only for giving interim relief. If the Court is of opinion,
that there is no other convenient or efficacious remedy open to the petitioner,
it will proceed to investigate the case on its merit and if the Court finds that
there is an infringement of the petitioner's legal rights, it will grant final
relief but will not dispose of the petition only by granting interim relief
(vii) where the satisfaction of the authority is subjective, the Court
intervenes when the authority has acted under the dictates of another body or
when the conclusion is arrived at by the application of a wrong test or
misconstruction of a statute or it is not based on material which is of a
rationally probative value and relevant to the subject matter in respect of
which the authority is to satisfy itself. If again the satisfaction is arrived
at by taking into consideration material, which the authority properly could
not, or by omitting to consider matters, which it sought to have, the Court
interferes with the resultant order. (viii) In proper cases the Court also
intervenes when some legal or fundamental right of the individual is seriously
threatened, though not actually invaded."
6. In Sayed Taher Bawamiya v. Joint Secretary to the Govt. of India and Ors.,
it was observed by this Court as follows:
"This Court in Alka Subhash's case (supra) was also concerned with a
matter where the detention order had not been served, but the High Court had
entertained the petition under Article 226 of the Constitution. This Court held
that equitable jurisdiction under Article 226 and Article 32 which is
discretionary in nature would not be exercised in a case where the proposed
detenu successfully evades the service of the order. The Court, however, noted
that the Courts have the necessary power in appropriate case to interfere with
the detention order at the pre-execution stage but the scope for interference
is very limited. It was held that the Courts will interfere at the
pre-execution stage with the detention orders only after they are prima facie
satisfied:
(i) That the impugned order is not passed under the Act 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.
As we see it, the present case does not fall under any of the aforesaid five
exceptions for the Court to interfere. It was contended that these exceptions
are not exhaustive. We are unable to agree with this submission. Alka Subhash's
case (supra) shows that it is only in these five types of instances that the
Court may exercise its discretionary jurisdiction under Article 226 or Article
32 at the pre-execution stage. The appellant had sought to contend that the
order which was passed was vague, extraneous and on irrelevant grounds but
there is no material for making such an averment for the simple reason that the
order of detention and the grounds on which the said order is passed has not
been placed on record inasmuch as the order has not yet been executed. The
appellant does not have a copy on the same, and therefore, it is not open to
the appellant to contend that the non-existent order was passed on vague, extraneous
or on irrelevant grounds".
7. This Court's decision in Union of India and Ors. v. Parasmal Rampuria throws
considerable light as to what would be the proper course for a person to adopt
when he seeks to challenge an order of detention on the available grounds like
delayed execution of detention order, delay in consideration of the
representation and the like. These questions are really hypothetical in nature
when the order of detention has not been executed at all and the detenu has
avoided service and incarceration and when challenge is sought to be made at
pre-execution stage. It was observed as under:
"In our view, a very unusual order seems to have been passed in a pending
appeal by the Division Bench of the High Court. It is challenged by the Union
of India in these appeals. A detention order under Section 3(1) of the COFEPOSA
Act was passed by the authorities on 13.9.1996 against the respondent. The
respondent before surrendering filed a writ petition in the High Court on
23.10.1996 and obtained an interim stay of the proposed order, which had
remained un-served. The learned Single Judge after hearing the parties vacated
the ad interim relief. Thereafter, the respondent went in appeal before the
Division Bench and again obtained ad interim relief on 10.1.1997 which was
extended from time to time. The writ appeal has not been still disposed of.
When the writ petition was filed, the respondent had not surrendered. Under
these circumstances, the proper order which was required to be passed was to
call upon the respondent first to surrender pursuant to the detention order and
then to have all his grievances examined on merits after he had an opportunity
to study the grounds of detention and to make his representation against the
said grounds as required by Article 22(5) of the Constitution."
In Sunil Fulchand Shah v. Union of India and Ors. a Constitution Bench of this
Court observed that a person may try to abscond and thereafter take a stand
that period for which detention was directed is over and, therefore, order of
detention is infructuous. It was clearly held that the same plea even if raised
deserved to be rejected as without substance. It should all the more be so when
the detenu stalled the service of the order and/or detention in custody by
obtaining orders of Court. In fact, in Sayed Taher's case (supra) the fact
position shows that 16 years had elapsed yet this Court rejected the plea that
the order had become stale.
8. These aspects were once again highlighted recently in Hare Ram Pandey v.
State of Bihar and Ors. and Union of India v. Amritlal Manchanda and Ors. after
an elaborate and exhaustive consideration of the matter.
9. The High Court does not appear to have considered the case in the background
of whether any relief was available to the writ petitioner even before the
order of detention was executed. The cryptic observation that the decision
" ms off the point", seems to be not only evasive but lacks judicious
application of mind. Consequently, the order is liable to be set aside. It is
open to the respondent to surrender to custody as was observed in Parasmal
Rampuria's case (supra) and take such pleas as are available in law to the
person concerned. These aspects were once again sufficiently highlighted
in Amrit Lal Manchanda's case (supra).
10. The appeal is allowed. The order of the High Court is set aside and the
writ petition filed in the High Court shall stand dismissed.