Kunnathully Vblayudhan ... vs Union Of India And Ors.
1991 Latest Caselaw 551 Del

JUDGMENT

R.L. Gupta, J.

(1) In this petition under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure, the petitioner at a pre-deception stage seeks issuance of a writ of mandamus or any other appropriate writ, direction or order to restrain respondent-UOI and the State of Kerala from implementing the order of detention purported to have been passed under Section 3(1) of the Cofeposa Act, on 8.9.88 and also to quash the proclamation dated 12 4.89 passed by Chief Judicial Magistrate. Trichur, Kerala, respondent No. 3 under Section 87 of the Code of Criminal Procedure and also quashing of all other consequential proceedings pending against the petitioner before the CJM.

(2) One E.V.Dasan had arrived at Trivandrum Air Port from Dubai by Air India flight on 23.388. 21 gold biscuits of foreign mark concealed in emergency light were allegedly recovered from his baggage, as also six crude gold chains. In addition, Dasan was also found to have one cover addressed to the petitioner indicating that the gold was meant to be delivered to the petitioner. After the statements of various persons including the petitioner Section 108 of the Customs Act, the impugned detention order was passed.

(3) Learned counsel for the petitioner has challenged the detention order on the ground of delay. It is alleged in paras 8 and 9 of the petition that there was a long and un-reasonable delay on the part of the detaining authority in passing the detention order. Further there was a similar delay in making attempts to execute the aforesaid detention order upon the petitioner thereby making it violative of the provisions of Article 22(5) of the Constitution. In support of this proposition learned Counsel for the petitioner has drawn my attention to the case of Issac Babu v. Union of India . I am of the view that this authority it not applicable to the facts of the present case. The detention order in the aforesaid case was challenged after Issac Babu had been actually detained. We are confronted with a pre-detention case in which the detention order is being challenged before surrendering in compliance with the detention order.

(4) Learned Counsel for the respondent has drawn my attention to the case of Rajendra Kumar Natvarlal Shah v. State of Gujarat and others, . In that case it was ruled : "A distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. The rule as to unexplained delay In taking action is not inflexible. In cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, is not satisfactorily explained and must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would net be warranted unless the Court finds that the grounds are "stale" or illusory or that there is no real nexus between the grounds and the impugned order of detention."

(5) On behalf of the respondent my attention has also been drawn to the case of Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another, wherein a Division Bench of the Supreme Court comprising of three Hon'ble Judges ruled : "NEITHER the Constitution including the provisions of Article 22 thereof nor the Act in question place any restriction on the powers of the High Court and this Court to review judicially the order of detention, the powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under- all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved persons first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available.........The Courts have the necessary power and they have used It in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the Courts are prima facie satisfied (1) that the impugned order is not passed un der the Act under 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. The .refusal by the Courts to use their extraordinary 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 prevention of the law in question... It is not, therefore, correct to say that no judicial review of the detention order is available. In the view we are taking which applies also to the cases under other laws, the stage at which the judicial review is made by the Court only stands deferred till after the order is executed."

(6) I am, therefore, of the view that in the present case where the petitioner has still not surrendered in pursuance of the detention order passed against him and his case being not covered by any if the aforesaid exceptions, he cannot be permitted to challenge the detention order on the ground of delay in issuing the detention order. The petition, therefore, has no merit and the same is hereby dismissed.