Important point
In a preventive detention order challenged on ground of unexplained inordinate delay in execution of order at pre-arrest stage where it could not be said that order was passed for a wrong purpose, High Court would be justified in refusing to exercise jurisdiction under Article 226 of Constitution of India to quash the order.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 3—Order of prevention detention passed on 4.9.2002 against appellant—It was not executed till 25.6.2003 when appellant-petitioner filed writ petition before High Court challenging detention order on ground of unexplained inordinate delay in execution of order—High Court dismissed the writ petition holding that it was not an appropriate case where High Court could exercise its jurisdiction—Appeal—Issue whether High Court was justified in law in not exercising its discretion to quash order of detention at pre-arrest stage—State Government had not exercised its power under Section 7 of the Act—Inordinate delay for which no adequate explanation was furnished could lead to assumption that live and proximate link between grounds of detention and purpose of detention was snapped—However in facts and circumstances of case it could not be said that order was passed for a wrong purpose—Order was passed with a view to prevent appellant from smuggling goods—Case did not fall within any of exceptions enumerated in Alka Subhash Gadia case—No reason to interfere.
       Held : In Union of India and others Vs. Muneesh Suneja : (2001) 3 SCC 92, the challenge was to the order of the High Court quashing the order of detention at the pre-arrest stage on two grounds, first that there had been delay in making the order of detention and second that after making the order of detention no effective steps had been taken to execute the same except to make a vague allegation that the respondent was absconding. This Court noticed the exceptional circumstances justifying interference by the High Court at pre-arrest stage enumerated in Alka Subhash Gadia (supra). This Court, thereafter, set aside the order made by the High Court observing:-
       “This Court has been categorical that in matters of pre-detention cases interference of court is not called for except in the circumstances set forth by us earlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order, for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Addl. Secy. to the Govt. of India Vs. Alka Subhash Gadia and Sayed Taher Bawamiya Vs. Jt. Secy. to the Govt. of India, we hold that the order made by the High Court is bad in law and deserves to be set aside.”
       Coming to the facts of this case, at the highest the case of the appellant is that the order of detention was belatedly passed and the State of Bihar thereafter took no steps whatsoever to implement the order of detention. Counsel for the appellant sought to bring this case under the third exception enumerated in Alka Subhash Gadia (supra), namely, that the order was passed for a wrong purpose. In the facts and circumstances of this case, it is not possible to accept the submission that the order was passed for a wrong purpose. Apparently the order has been passed with a view to prevent the appellant from smuggling goods or abetting the smuggling thereof etc. The facts of the present case are no different from the facts in Muneesh Suneja (supra). We do not find that the case falls within any of the exceptions enumerated in Alka Subhash Gadia (supra). The High Court was, therefore, justified in refusing to exercise jurisdiction under Article 226 of the Constitution of India to quash the order of detention at the pre-arrest stage. (Paras 14 and 15)

Judgment

B.P. Singh, J.—Special leave granted.

2. In this appeal the appellant impugns the order of detention passed against him by the State of Bihar on September 4, 2002 in exercise of powers conferred by Section 3(i), (ii) and (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘the Act’). The High Court by its impugned judgment and order dated September 17, 2003 dismissed the writ petition and held that this was not an appropriate case in which the High Court could exercise its jurisdiction under Article 226 of the Constitution of India to quash an order of detention even before its execution. The correctness of the aforesaid view of the High Court is challenged before us.

3. The facts of the case are few and not disputed.

4. The appellant claims to be one of the partners of M/s. Prakash Transport, a partnership firm having its principal place of business at Kolkatta with branch offices all over India including on at Raxaul in the State of Bihar. The firm is engaged in the business of transportation of goods by road by hiring public carrier trucks. According to the appellant, on August 28, 2001 a Nepalese firm M/s. Prakash International Carriers Pvt. Ltd., Kathmandu, Nepal, hired a vehicle owned by one Shri Vishwanath Prasad Kanu, a Nepalese citizen, for transportation of goods from the godown of the appellant’s firm at Raxaul to Nepal. The appellant has no concern with the Nepalese firm M/s. Prakash International Carriers Pvt Ltd. The truck hired by the aforesaid Nepalese firm was detained at the Indian Land Custom Station at Raxaul and an idol kept in a wooden box was recovered. This led to the search of the premises of the appellant’s firm at Raxaul and the search resulted in the recovery of another idol kept in a wooden box. The statement of the driver of the truck was recorded on August 29, 2001 and on the basis of his statement the complicity of the appellant was discovered. Accordingly his house at Kolkatta was searched on September 11, 2001 and his statement recorded. On February 22, 2002 a notice was issued to the appellant to show cause as to why penalty be not imposed, and a criminal case was also registered against him on April 16, 2002. Subsequently the appellant was released on bail in the criminal case on August 16, 2002. The impugned order of detention was passed on September 4, 2001, but till the appellant filed the writ petition on June 25, 2003, the order of detention had not been executed by serving it upon the appellant.

5. The case of the appellant is that in the criminal case, he appeared in person uptil December 20, 2002, even after the order of detention had been passed, and yet no effort was made to arrest him. No process under Section 7 of the Act was issued against him even though it is the case of the respondents that the appellant had been absconding. It is the case of the appellant that the detaining authority, the State of Bihar, took no effective steps whatsoever to arrest the appellant which showed that the order of detention had been passed for a purpose other than for which his detention under the Act could be justified. The fact that the State Government did not exercise its power under Section 7 of the Act is not disputed before us. All that has been shown to us by the learned counsel appearing on behalf of the State is that some correspondence was exchanged between the Criminal Investigation Department of the Government of Bihar with the Commissioner of Police, Kolkatta, West Bengal. It was stated in the counter-affidavit filed on behalf of respondent No. 5 before the High Court that though a request had been made for immediate compliance of the preventive detention order under the Act to the Commissioner of Police, Kolkatta, no action was taken. Several such letters addressed to the police authorities of the State of West Bengal, however, yielded no result.

6. Having regard to the facts and circumstances of the case it

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2005 Supreme(SC) 1321

Cases Referred (7)