ORDER :

Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the first respondent and the learned Standing counsel appearing for the second respondent.

2. The second respondent is said to have sent a proposal to the first respondent for detaining the petitioner under the provisions of the Conservation of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974. The first respondent has written to the second respondent seeking certain details about the writ petitioner. At this stage, this writ petition has been filed challenging the recommendatory proposal of the second respondent. The petitioner also wants this Court to quash the communication sent by the first respondent to the second respondent. In effect, the petitioner seeks relief at the hands of this Court at the pre-execution stage.

3. I wanted to know from the learned counsel for the petitioner as to whether the petitioner's case fell within the five parameters laid down in Alka Subhash Gadia case. The learned counsel responded that it is not necessary that he should bring his case within the five contingencies laid down therein. The question as to whether the detenue or any one on his behalf is entitled to challenge an order of detention without the detenue submitting or surrendering came up for consideration before the Three-Judges Bench of the Hon'ble Supreme Court in the decision reported in 1992 Supp(1) SCC 496 (Additional Secretary, Government of India V. Smt. Alka Subhash Gadia). It was held that the Courts can interfere at the pre-execution stage when they are prima facie satisfied (i) that the impugned order is not passed under 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. Subsequently, debate arose as to whether the five grounds laid down in Alka Subhash Gadia case are illustrative or exhaustive. In other words, the question was whether interference with detention order at pre-execution stage is limited to the five contingencies mentioned in Alka Subhash Gadia case. It was argued that there will be other contingencies in which the pre-execution challenge to the order of detention could be permitted. But in the decision reported in (1994) 6 SCC 14 (Subhash Muljimal Gandhi V. L. Himingliana) it was held that the parameters laid down in Alka Subhash Gadia case are exhaustive.

4. The issue was firmly settled by a subsequent Three-Judges Bench of the Hon'ble Supreme Court in Sayed Taher Bawamiya V. Joint Secretary reported in (2000) 8 SCC 630). The Hon'ble Supreme Court following Alka Subhash Gadia case affirmed that it is only in the five types of instances set out in Alka Subhash Gadia case, the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 of the Constitution of India at the pre-execution stage. However, a Two-Judges Bench in Deepak Bajaj V. State of Maharashtra reported in AIR 2009 SC 628 cast doubts on the proposition that Alka grounds are exhaustive and not illustrative. They wondered as to why if a person against whom the preventive detention order has been passed comes to the Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, the Court should stay its hands and compel the petitioner to go to jail, if he is bound to be released subsequently. They observed that the legal position regarding the power of the Courts to set aside the preventive detention order at the pre-execution stage may have to be revisited.

5. The issue was taken up for consideration again in Subhash Popatlal Dave V. Union of India reported in (2012) 7 SCC 533. It was argued that the decision rendered in Alka Subhash Gadia case that a preventive detention order could be challenged at the pre-execution