S.S. Subair vs Union Of India (Uoi)
2004 Latest Caselaw 1150 Del

JUDGMENT

T.S. Thakur, J.

1. The short question that falls for consideration in this petition is whether, and if so, the situations in which an order of preventive detention can be assailed before the same is executed and the person concerned taken in preventive detention. The question is no longer res integra having been answered authoritatively by the Supreme Court in Additional Secretary to Govt. of India and Ors. V/s Smt. Alka Subhash Gadia & Anr. ((1992 Supp. (1) SCC 496). Dealing with the question whether the power of judicial review could be exercised to test the validity of orders of the preventive detention even before the same are executed, the court held that if detention orders are challenged and the operation thereof stayed before they are executed in every case, the very purpose of the order and the law under which the same is issued will be frustrated. Having said so, the court dispelled the impression that the power of judicial review did not extend to examining the validity of an order of detention prior to its execution. It observed that the courts have the necessary power and have exercised the same in proper cases although such cases have been few and the grounds on which courts have interfered with them at the pre-execution stage limited. The exercise of power of judicial review of preventive detention orders before their execution was, declared the court, limited to the following situations :

I. When the impugned order is not passed under the Act under which it is proposed to have been passed.

II. Where the same is sought to be executed against a wrong person.

III. Where the order is passed for a wrong purpose.

IV. Where it is passed on the extraneous and irrelevant grounds.

V. Where the authority which has passed the order is no authority to do so.

2. The above statement of law was reiterated in a later decision pronounced by their lordships in Sayed Taher Bawamiya v/s Joint Secretary to the Govt. of India and Ors. . Their lordships extracted with approval the five situations in which interference was permissible according to Smt. Alka Subhash Gadia's case (Supra) with preventive detention order even on at the pre-execution stage and held that interference with preventive detention orders at pre-execution stage was possible only in those five situations and none else. The court also repelled the contention that the order of detention in that case was made on extraneous and irrelevant grounds. It held that there was no material for making such an averment for the simple reason that the order of detention and the grounds on which the same was passed was not on record as the order had not been executed nor did the appellants have a copy of the same.

3. The above decisions were followed by the decision of the Apex court in Union of India and Ors V/s Parasmal Rampuria in which the court indicated the proper course to be adopted in cases where an order of detention is sought to be challenged on grounds like delayed execution of the detention order, delay in consideration of the representation and the like. The court observed that the challenge to the detention order was hypothetical in cases where the same had not been executed and set out the proper course to be followed in such cases in the following words:

"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 13.09.1996 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."

4. To the same effect is the decision of the Supreme Court in Hare Ram Pandey V/s State of Bihar and Ors. and Union of India V/s Amrit Lal Manchanda and Anr. . In the latermentioned decision, the Supreme Court was examining the correctness of an order passed by the Punjab & Haryana High Court quashing an order of detention passed by the concerned authority under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). A petition challenging the validity of the order was filed before the High Court at the pre-execution stage and an order staying operation of the order obtained. It was inter alia argued before the High Court that with the passage of time between the date of the detention order and the date on which the High Court had taken up the writ petition for consideration, the order of detention had been rendered stale. Relying upon the decision of the Supreme Court in Sunil Fulchand Shah V/s Union of India , the High Court held that the detention order had become unsustainable with the passage of time and accordingly quashed the same reserving liberty to the concerned authority to examine the matter and pass a fresh order if the circumstances of the case so warrant. The Supreme Court did not however approve of that reasoning and observed :

"In Sunil Fulchand Shah's case (supra) 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."

5. The court went on to observe that merely because the High Court had granted the stay of the order of detention, the respondent could not take advantage of the same and contend that because of passage of time, the order had become stale or unenforceable. The petitioner could not, observed their lordships, be allowed to have an unfair advantage and double benefit of his own action which delayed the execution of the detention order upon him. It also pointed out that in Sunil Fulchand Shah's Case (Supra), the time gap between the date of the issue of the detention order and its execution was nearly 16 years and yet the court had not held the order to have become stale or unenforceable for that reason. The view taken by the High Court was accordingly reversed and the writ petition dismissed reserving liberty for the petitioner to surrender to custody and to challenge the detention of all the grounds available to him in law.

6. There is, in the light of above authoritative pronouncements of the Apex court, no difficulty for us in holding that while an order of detention can be assailed even at the pre-execution stage, the grounds on which such a challenge may be maintained are limited to those rendered in Smt. Alka Subhash's case (supra) and the subsequent decisions referred to above. There is also no gainsaying that just because considerable period has elapsed between date of the detention order and its eventual execution would render the same stale or otherwise unenforceable. Since the execution of the detention order had been stayed by this court, the intervening delay could not be made a ground by the petitioner for quashing the said order.

7. That brings us to the question whether the petitioner has made out a case for interference with the detention order on any one of the five grounds referred to in Smt. Alka Subhash's case (supra). Learned counsel for the petitioner fairly conceded that none of the grounds identified in the said judgment was available to the petitioner in the instant case. What was all the same argued was that the order for detention was rendered bad in view of the repeal of Foreign Exchange Regulation Act, 1973. It was submitted that the detention of the petitioner was ordered on the basis of a search conducted at the residence of the petitioner at Cochin and the business premises of M/s Classic Enterprises, Ernakulam by the officers of the Enforcement Directorate, Trivandrum as early as on 6th December, 1989. In the course of the said proceedings, the statements of the petitioner, his two brothers and his father were recorded by the Chief Enforcement Officer, Trivandrum from which it was evident that the petitioner used to purchase foreign currency from different persons and sell the same in Bombay and Madras at higher rates. Agents from whom he would purchase foreign currencies would at times come back and purchase the same again at higher rates. Persons to whom he used to sell foreign currency were also named. The record seized from the residence of the petitioner, according to the statement, revealed sale and purchase transactions of foreign currencies worth lakhs of rupees. The grounds of detention, in the above backdrop, sought to justify the detention of the petitioner for the alleged violation of provisions of the Foreign Exchange Regulation Act, 1973. This is evident from para 12 of the grounds which reads as under :

In view of the foregoing, I have no hesitation in arriving at the conclusion that you have been engaged in unauthorised dealings in foreign exchange in violation of provisions of the Foreign Exchange Regulation Act, 1973. I am also satisfied that these unauthorised transactions indulged in by you have affected the foreign exchange resources of the country adversely. Even though adjudication and prosecution proceedings under the Foreign Exchange Regulation Act, 1973, are likely to be initiated against you, I am satisfied that in view of the facts stated hereinabove, it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing you from indulging in activities prejudicial to the augmentation of country's foreign exchange resources.

8. It was, on the above basis, argued that since the Foreign Exchange Regulation Act, 1973 has been repealed, the proposed detention of the petitioner for violation of the provisions of the said Act does not arise and is, therefore, liable to be quashed.

9. On behalf of the respondent, it was, on the other hand, contended that the detention order in the instant case was made under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and not under the Foreign Exchange Regulation Act, 1973. The repeal of the later enactment, therefore, was wholly inconsequential for purposes of determining the validity of the proposed detention. It was also contended that the Foreign Exchange Regulation Act was now replaced by the provisions of Foreign Exchange Management Act, 1999 which contained provisions in parimateria with those of the Foreign Exchange Regulation Act at least to the extent the earlier enactments prohibited dealing in foreign exchange otherwise than in accordance with the provisions of the said enactment. The activities of the petitioner were impermissible even under the repealing enactment of Foreign Exchange Management Act which could, therefore, be made a basis for an order of preventive detention under the COFEPOSA.

10. We have given our anxious consideration to the submissions made at the bar. The detention order as rightly pointed out by counsel for the respondents is not made under the Foreign Exchange Regulation Act, 1973 so as to affect the validity of any order passed under the same by reason of its repeal. The order of detention is under the provisions of COFEPOSA which remains on the statute book and which continues to authorise preventive detention in cases where such detention is necessary to prevent the persons detained from indulging in activities prejudicial to the augmentation of country's foreign exchange resources. The repeal of the Foreign Exchange Regulation Act, 1973 is not accompanied by a corresponding repeal or amendment of provisions of COFEPOSA so as to render any detention impermissible even if the person concerned is seen to be acting in a manner prejudicial to the augmentation of country's foreign exchange resources. That apart, the ground urged before us does not strictly speaking fall in any one of the five grounds on which interference with detention orders is permissible according to Smt. Alka Subhash's case (supra). Even assuming that the change in the legal position flowing from the repeal of the Foreign Exchange Regulation Act would make any difference in so far as detentions that proceeded on an alleged violation of the provisions said act, the same can be urged by the detenu in appropriate proceedings challenging the detention after he surrenders to custody.

11. In the result, this writ petition fails and is hereby dismissed but in the circumstances without any orders as to costs. The petitioner shall, however, be free to challenge the detention order on all such grounds as may be legally available to him after he surrenders. The merits of any such challenge shall be examined by the courts uninfluenced by anything said in the body of this order.