IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th August, 2015
Date of Decision: 31st August, 2015
Through: Mr.Sudhir Nandrajog, Senior
Advocate with Mr.Amanpreet Singh Rahi and
Ms.Kiran Bhardwaj, Advocates
UNION OF INDIA & ORS
Through : Mr.Sanjay Jain, ASG with
Mr.Kirtiman Singh, CGSC with Ms.Shreya Sinha,
Mr.Waize Ali Noor, Mr. Gyanesh Bhardwaj and
Mr.Akshay Sehgal, Advs.
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA
SANJIV KHANNA, J.
Harpal Singh challenges at pre-detention stage his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 („COFEPOSA, Act‟, for short). The detention order enclosed as Annexure P-1 to the writ petition is dated 31st of March, 2015 and the present writ petition was filed in this High Court on 4th July, 2015.
The petitioner contends that the detention order deserves quashing at the pre-detention stage, in the absence of "live link" due to time gap between the detention order dated 31st March, 2015 and the occurrence on 7th July, 2014, which is the substratum and foundation of the detention order. The "live link" snapped once the petitioner ceased to be an employee of M/s.Minar Travels Pvt. Ltd. in January, 2015. The monetary transactions in the year 2012 -13, by way of loans between the petitioner / his wife and Sheikh Mohammed Javid, were too distinct in time to show any connection or involvement of the petitioner and the gold smuggling in 2014. The said transactions were duly disclosed in the income-tax returns. The "live link" also came apart due to delay in execution of the detention order dated 31 st March, 2015, as the said detention order and grounds of detention were dispatched to the executing authority only on 5th May, 2015, after a gap of about 35 days and thereafter no attempt and effort was made to serve the order of detention and detain the petitioner. It is asserted that the petitioner had not absconded and in fact had appeared, on being summoned, before the Enforcement Directorate at Goa on 04.06.2015. Petitioner‟s wife had also fully cooperated and was questioned by the Enforcement Directorate on 02.06.2015. Lastly, on merits it is submitted that the petitioner had signed application forms for access to the airport as an employee of M/s.Minar Travels Pvt. Ltd., as he had the signing authority and not for any personal gains or advantage. Sheikh Mohammed Javid too was an employee of M/s.Minar Travels Pvt. Ltd., a company engaged in travel business. Similar applications were signed by the petitioner for other employees. As per the instructions of the Airport Authority of India, access passes were /are issued for three months and were/are renewable. The passes were /are scrutinized by AAI Pass Committee. On the recommendation of the said Committee, the Bureau of Civil Aviation issues all area entry pass. M/s.Minar Travels Pvt. Ltd. had applied for renewal of pass in the name of Sheikh Mohammed Javid, as entry to the airport was required and necessary even after the chartered flights had stopped for attending to the leftover passenger from Russia, who could be flying out on regular basis. Reliance is placed upon the decision dated 29.5.2015 of this High Court in Pankaj Kumar Shukla Vs. Union of India & Ors.
[WP(Crl.)No.827/2015]. Attention was also drawn to the decision of the Supreme Court in Additional Secretary to the Government of India and Anr. Vs. Smt.Alka Subhash Gadia & Anr. reported at 1992 Suppl.(1) SCC 496; Subhash Popatlal Dave Vs. Union of India & Anr. reported at (2012) 7 SCC 533 [hereinafter referred to, as Subhash Popatlal Dave (1)] and also on Subhash Popatlal Dave Vs. Union of India and Anr. reported as (2014) 1 SCC 280 [hereinafter referred to, as Subhash Popatlal Dave (2)].
We begin with the note of caution and specifically highlight that the challenge to the detention order under COFEPOSA Act, is at the pre- detention stage. The Supreme Court in Smt.Alka Subhash Gadia (Supra) had examined whether a person is entitled to challenge a detention order without submitting or surrendering to it, by filing a writ petition under Article 32 or 226 of the Constitution of India. The Supreme Court rejected the contention that at the pre-detention stage a person or a detenu against whom detention order is passed, is entitled to a copy of the detention order or the grounds of detention, observing that this would be contrary to the provisions of Section 3 (3) of the COFEPOSA Act and Article 22(5) of the Constitution, which stipulates that ordinarily grounds of arrest would be communicated within maximum period of five days of detention and in exceptional circumstances and for reasons to be recorded in writing within fifteen days from the date of detention. Similarly, a detenu does not have any entitlement to be given a copy of the order of detention without first surrendering or at the pre-execution stage, for there is no provision in the Constitution or law under which such right can be established. Secondly, the courts in exercise of writ jurisdiction in genuine cases can quash a detention at the pre-execution stage, but they are not obliged to do so, nor would it be proper for them to do so, save in exceptional cases. Exercise of Writ Jurisdiction, though wide and untrammeled by external restrictions, is by very nature discretionary, extra-ordinary and an equitable jurisdiction. It is to be used sparingly and in circumstances where no other efficacious remedy is available. Self-evolved judicial proclamation requires that the aggrieved person must first follow the concerned law and exhaust all statutory remedies before approaching the Supreme Court or the High Court under Articles 32 or 226 of the Constitution. The self- imposed internal restraints are firmly ingrained and ensure that the extraordinary power is used sparingly and not in routine. Thus, the Superior Courts have necessary power, and in proper cases can strike down and interfere at the pre-detention stage, albeit the said power or discretion should not be exercised except when the said courts are satisfied: (i) the impugned order is not passed under the Act, under which it is purported to have been passed; (ii) is sought to be executed against the wrong person; (iii) is passed for a wrong purpose; (iv) is passed on vague, extraneous or irrelevant grounds; or (v) the authority which has passed the order had no authority to do so. Refusal of the court to exercise the extraordinary power of judicial review under two Articles prior to execution of the detention order, does not amount to abandonment of power of judicial review or denial of right of the...