IMPORTANT POINT
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.

JUDGMENT

Arijit Pasayat, J.-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. v. Smt. Alka Subhash Gadia and Anr. case [(1992 Supp. (1) SCC 496]. 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 dealin