Delhi High Court
Pawan Gupta vs Union Of India & Anr on 16 October, 2024
Author: Amit Sharma
Bench: Prathiba M. Singh, Amit Sharma
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th September, 2024
Date of Decision: 16th October, 2024
+ W.P.(CRL) 2089/2017
PAWAN GUPTA .....Petitioner
Through: Mr. J. P. Sengh, Sr. Advocate with Mr.
Vibhor Verdhan, Mr. Harshit Kucchal,
Mr. Mrinal Sharma & Ms. Manisha
Mehta, Advocates.
versus
UNION OF INDIA & ANR. .....Respondents
Through: Mr. Ajay Digpaul, CGSC and Mr. Anil
Soni, CGSC for UOI.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition under Article 226 of the Constitution of India read
with Section 482 of the Code of Criminal Procedure, 1973, (hereinafter
referred as “Cr.P.C.”), seeking the following reliefs:
“a. to issue a writ, order or direction in the nature of
mandamus directing the respondents to place on record
Complete Records of Detention Order Dated 27-04-2015;
b. to quash the impugned detention order bearing F. NO. 673
/13/2015-CUS.VIII dated 27.04.2015 issued against Sh.
Pawan Gupta under section 3 (1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities
(COFEPOSA) Act, 1974 by the respondent no.2.;
c. To quash the notification bearing s.o. 1845 (E)
F.No.673/21/2015-Cus.VIII dated 06.07.2015 passed underSignature Not Verified W.P.(CRL) 2089/2017
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section 7(1) of COFEPOSA Act and was published in official
gazette on 06.7.2015.
d. direct the Respondent to decide the representation dated
03.07.2017 filed by the proposed detenue before the
concerned authority by a speaking order;
e. to pass such other and further order as this Hon’ble Court
may deem fit, just and proper in the facts and circumstances
of the present case and in the interest of justice in favour of
the Petitioners.”
2. By way of the present petition, Order of Detention dated 27th April,
2015 under Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities (hereinafter referred as “COFEPOSA”)
Act, 1974 is sought to be quashed at pre-execution stage.
3. The impugned order was passed by the Detaining Authority after
receiving a proposal from Lucknow Zonal Unit, Directorate of Revenue
Intelligence (hereinafter as “Sponsoring Authority” ) and after finding
sufficient material regarding involvement of the Petitioner, the said detention
order was passed. It is the case of the Respondents that the Petitioner is
involved with a syndicate in illegal storage and illegal exports of Red Sanders
Woods, a prohibited item for export under Foreign Trade Policy read with
CITES (Convention on International Trade in Endangered Species of Wild
Fauna and Flora), in the guise of genuine exports.
4. The case of the prosecution is that on 21st October, 2014, a container
containing 1280 Kgs of alleged Red Sanders Woods valued at Rs. 6 Crores
was seized which was being exported to Sharjah, UAE under the guise of
“Acrylic Bath Tubs and Bath Tub Accessories”. Thereafter, during the
investigation in the aforesaid seizure, various places were searched and
statements of the persons including certain accused were recorded. The
alleged residence of the Petitioner at D-35, Third Floor, South Extension,
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New Delhi was also searched on 29th October, 2014. It is the case of the
Respondents that the Petitioner was issued summons which were pasted at his
aforesaid alleged residence at South Extension and all other available
addresses, however, the Petitioner did not appear and, thereafter, as
mentioned hereinabove, after receiving the proposal from the Sponsoring
Authority, the impugned detention order was passed against the Petitioner on
27th April, 2015.
SUBMISSIONS ON BEHALF OF THE PETITIONER
5. Learned Senior Counsel, appearing on behalf of the Petitioner
submitted that the primary ground for seeking quashing of the aforesaid
detention order is that the Petitioner is a citizen of Nepal and residing at 32
Battis Pulti Sadak, Teku/Teka Road, Kathmandu, Nepal and the said address
is in the knowledge of the Respondents. However, the detention order dated
27th April, 2015 had not been served on the Petitioner till the filing of the
present petition which was on 12th January, 2017.
6. Learned Senior Counsel submitted that despite the fact that the
aforesaid address was in the knowledge of the Respondents, the latter made
attempts to serve the detention order on the Petitioner at his alleged address
in Delhi and Sonipat, Haryana. It is submitted that when he was not found at
either of the alleged addresses, proceedings to declare him a proclaimed
offender under Sections 82 and 83 of the Cr.P.C. were initiated at both the
places and no attempt was made to serve the detention order by post or
otherwise at his address in Nepal.
7. Learned Senior Counsel drew attention of this Court to order dated 10 th
September, 2018 passed by Predecessor Bench of this Court wherein after
noting the aforesaid, it was observed as under:-
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“9. It is not explained why the Respondent, despite knowing
the address of the Petitioner in Nepal, made no attempt to
actually serve him the detention order at that address.
10. Counsel for the Respondent seeks time to obtain specific
instructions on the legal obligation of the Respondent to serve
the detention order on the Petitioner at his Nepal address,
particularly considering the fact that the Petitioner is a citizen
of Nepal.”
8. It is pointed out that thereafter in pursuance of the direction of the
Court, an additional reply on behalf of the Respondents was filed on 1 st
November, 2018 wherein it recorded as under:
“4 (e) Further, in the process to verify the Nepalese
address as given by the Petitioner absconder while filing a
restoration application before this Court, the Embassy of
India, Kathmandu (Nepal) vide the letter dated 12.3.2018
(ANNEXURE – VII) requested the Director General,
Department of Revenue Investigation, Kathmandu, Nepal to
verify the given Nepalese address of Shri Pawan Gupta.
Consequently, Embassy of India, Kathmandu (Nepal) vide
the letter dated 10.9.2017 (ANNEXURE – VIII) confirmed
verification in respect of Shri Pawan Gupta, the Proclaimed
Offender as Kathmandu Municipality, ward No. 9,
Battsputali, Kathmandu, Nepal.
5. As regards the other query of the Hon’ble Court about the
steps taken to serve the detention order, which is under
challenge in this Petition, on the Petitioner at his address in
Nepal, it is respectfully submitted that execution of Detention
Order passed under Section 3(1) of the COFEPOSA Act upon
a proposed Detenue must in terms of Section 3(3) of ibid Act
followed with communication of grounds as well as relied
upon document on which the detention order has been passed
ordinarily within five days after the execution of the order of
detention and in exceptional circumstances and for the
reasons to be recorded in writing, not later than fifteen days,Signature Not Verified W.P.(CRL) 2089/2017
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from the date of the detention of the COFEPOSA Act. In other
words, the service of detention order means, execution of
Detention order and to detain the person to whom detention
order is to be served. As regards limitation to serve the
Detention Order on the Petitioner absconder at his Nepal
address, it is respectfully submitted that as per Section 4 of
the COFEPOSA Act, 1974 a detention order can be executed
anywhere in India similar to arrest warrants under the Code
of Criminal Procedure, 1973. Procedure in respect of issuance
and execution of the Warrants has been defined in Section 70
and 75 of the Criminal Procedure Code and as per the said
provisions, the warrants is to be executed through
jurisdictional police. It is also submitted that in terms of
Section 6 of COFEPOSA Act, 1974, no detention order shall
be invalid or inoperative merely by reason – (a) that the
person to be detained thereunder is outside the limits of the
territorial jurisdiction of the Government or the officer
making the order of detention, or (b) that the place of
detention of such person is outside the said limits. Further, so
far as execution of the COFEPOSA Detention Order upon
Shri Pawan Gupta in Nepal being a sovereign country is
concerned, it is respectfully submitted that the said Detention
Order was to be executed through local/jurisdictional police
authorities i.e. Delhi Police Commissioner or DGP, Haryana
in accordance with his available residential addresses in Delhi
and Haryana respectively. After having verified the address
of Shri Pawan Gupta, a Proclaimed Offender being in Nepal,
necessary recourse of available legal persuasion including
extradition of proclaimed offender from Nepal to India is
being initiated.”
It is submitted the aforesaid additional reply/affidavit is completely
silent on the issue raised in the order dated 10th September, 2018.
9. The attention of this Court was also drawn to order dated 12 th July,
2022, passed by learned Additional Sessions Judge, Patiala House Courts,
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New Delhi in Crl. Rev. Petition No. 353/2018, wherein the process under
Section 82 of the Cr.P.C. issued against the Petitioner was stayed. Attention
was also drawn to an order dated 10th August, 2022 passed in CRM-M-
32366-2022, passed by Hon’ble High Court of Punjab and Haryana whereby
the proclamation under Section 82 of the Cr.P.C. of trial Court of Haryana
was stayed. It is submitted that the aforesaid order reflects that the exercise
alleged to have been done by the Respondents to serve the order of detention
on the Petitioner at his alleged residences in Delhi and Haryana was a farce
as he never resided at those addresses and at his address in Nepal which was
known to the Respondents, no attempt was made to serve him.
10. Learned Senior Counsel has placed reliance on the following
judgments:
i. Abhishek Gupta vs Union of India, 2022 SCC OnLine Del 1494
ii. Smt. Shashikala Rane vs Union of India, 1986 SCC OnLine Bom
282
iii. R. Prakash vs State of Karnataka, 1979 SCC OnLine Kar 151
iv. Smt. Naseem Imran Mohd Siddique vs State of Maharashtra, 2000
SCC OnLine Bom 791
v. Maqsud Yusuf Merchant vs Union of India, (2008) 16 SCC 51
11. Learned Senior Counsel relies upon the aforesaid judgments to submit
that there is no live and proximate link between the grounds of detention
alleged by the detaining authority and the purpose of detention namely
prevention of smuggling activities as there is a long and unexplained delay
between the date of detention order which has not been executed till date. It
was submitted that the word “engaging” which is integral part of Clauses 3, 4
and 5 of Subsection 1 of Section 3 of the COFEPOSA Act is absent in the
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grounds of the detention and therefore the order of detention is vitiated. It is
also submitted that the Petitioner had admitted himself at Medanta Hospital
in the month of April, 2014, which was before the alleged seizure in October,
2014 and he was again admitted in November, 2014 at Nepal Bharat Maitri
Hospital. It is submitted that the alleged premises belonging to the present
Petitioner at South Extension, New Delhi never belonged to him and when
the search of the premises was conducted, the wife of the Petitioner was
present, and signed on the panchnama, however, she had gone to the premises
for checking the same as they were in the process of buying it.
SUBMISSIONS ON BEHALF OF THE STATE
12. Per contra, learned CGSC for the Respondents raised a preliminary
objection with regard to the maintainability of the present petition inasmuch
as the same has been preferred at pre-execution stage. Reliance is placed on
Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt.), 1992
Supp (1) SCC 496 to submit that the Courts can entertain challenge to
detention order at pre-execution stage, however, the grounds under which the
same can be interfered with are limited in scope and only in exceptional cases.
It is further submitted that a detention order on the same date was passed with
respect to the co-accused of the present Petitioner namely Deepak Verma and
the said challenge was dismissed by a judgment dated 4 th September, 2015 by
Division Bench of this Court in W.P.(CRL.) 1214/2015. Another writ
petition being W.P.(CRL) 203/2015 preferred by co-detenue Gautam Jain
against the same Detention Order dated 27th April, 2015 was also dismissed
by the Hon’ble Supreme Court vide its judgment dated 4th January, 2017. It is
further submitted that the present petition, which is at the stage of pre-
execution cannot challenge the detention order on merits as the said order was
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not available with the Petitioner. Furthermore, in view of the fact that the said
detention order with respect to other co-detenues were upheld, the merits of
the same cannot be urged by the Petitioner in the present petition.
13. Attention of this Court was drawn to the additional reply filed on behalf
of the Respondents, as pointed out hereinabove with regard to the service of
the Petitioner and in particular to the following paragraphs:
“4.(b) Since the Petitioner has been absconding and has
not submitted to the Detention Order by way of surrendering
or otherwise before the concerned authorities as per the
requirement of law, therefore, an Order dated 6th July, 2015
was issued by Central Government under Section 7(1)(b) of
the COPEPOSA Act, 1974 as published in the Gazette of
India, Extraordinary [Part II Section 3 Sub-section (ii) on 9th
July, 2015] requiring the Petitioner viz. Shri Pawan Gupta to
appear before the Commissioner of Police, Delhi or Director
General of Police (DGP), Government of Haryana,
Chandigarh within 7 days of publication of this order [ a copy
thereof is enclosed herewith and marked as Annexure-I]
Further, copies of the said order as got published in the
newspapers viz. “Dainik Jagran dated 22.7.2015: Lucknow
Edition”, “Times of India dated 22.7.2015: Lucknow
Edition”, “Dainik Jagran dated 22.7.2015: New Delhi
Edition” and “Times of India dated 23.7.2015: New Delhi-
Edition” are also enclosed herewith and marked as
Annexure-II. But Shri Pawan Gupta has failed to comply
with the said directions of surrendering before the Police
Authorities (Executing Authorities) and thereby has rendered
himself liable for punishment with imprisonment for a term
which may extend to one year or with fine or with both, under
Section 7(1)(b) of COFEPOSA Act, 1974.
It is further submitted that necessary statutory action was
initiated under Section 7(1)(a) of the said Act against Shri
Pawan Gupta(COFEPOSA absconder), the Petitioner herein
and a ‘Report’ was filed before the Hon’ble Court of theSignature Not Verified W.P.(CRL) 2089/2017
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Metropolitan Magistrate, Patiala House, Delhi on 12th
October, 2015 (Annexure III) requesting therein for
initiation of further proceedings under Section 82,83, 84 and
85 of the Code of Criminal Procedure, 1973. Consequent to
completion of statutory provisions of Section 7(1)(a) of ARE
COFEPOSA Act, 1974, the Petitioner has been declared as
Proclaimed Offender by both Hon’ble JMIC, Sonipat vide
order dated 15.10.2016 (Annexure IV) and the Hon’ble
ACMM, Patiala House Courts, New Delhi vide Order dated
21.02.2017 (Annexure V). The legal proceedings under
Section 83 of the Cr. P.C. have already been initiated video
Order dated 06.07.2017 (Annexure VI).
c) The Petitioner absconder disregarding the law of
land has not joined the trial proceedings before the competent
Court even after issuance of repeated summons and initiation
of proceedings under Section 82 of Cr. P.C.
(d) Taking into account the Nepalese residential
address of the absconding Petitioner, the Sponsoring
Authority have also arranged to have issued Look Out
Circular (LOC)/ Red Alert No.15/2015 dated 05.05.2015 but
in vain till date. In pursuance of the efforts to execute the
detention order at the earliest and also in view of the
untraceability of the absconding Petitioner at his known
addresses in India, the concerned authorities in the Ministry
of External Affairs, New Delhi were also addressed on
28.05.2015 with the request to provide information in respect
of the passport of the absconding Petitioner.
(e) Further, in the process to verify the Nepalese
address as given by the Petitioner absconder while filing a
restoration application before this Court, the Embassy of
India, Kathmandu (Nepal) vide the letter dated 12.3.2018
(ANNEXURE – VII) requested the Director General,
Department of Revenue Investigation, Kathmandu, Nepal to
verify the given Nepalese address of Shri Pawan Gupta.
Consequently, Embassy of India, Kathmandu (Nepal) vide
the letter dated 10.9.2017 (ANNEXURE – VIII) confirmed
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verification in respect of Shri Pawan Gupta, the Proclaimed
Offender as Kathmandu Municipality, ward No. 9,
Battsputali, Kathmandu, Nepal.
(f) It is evident that respective authorities and the
Courts have made all efforts provided under law to secure
presence of Petitioner absconder; however, the Petitioner has
not so far submitted to the jurisdiction of Courts in
compliance of detention order as well as in compliance issued
under trial proceedings. Thus, the authorities tried their level
best and took recourse to the process as provided under the
law to execute the Detention Order.
(g) Despite best efforts of Executing Authorities viz, DGP,
Haryana Police and Commissioner, Delhi Police to serve the
Detention Order dated 27.4.2015 against the Proclaimed
Offender, Shri Pawan Gupta under the COFEPOSA Act,
1974, the Detaining Authority vide its endorsement to letter
dated 15.10.2018 and letter dated 23.10.2018 (ANNEXURE-
IX) requested Sponsoring Authority to initiate and coordinate
its efforts with the concerned Executing Authority in the case
of Proclaimed Offender viz. Shri Pawan Gupta for his
extradition from Nepal for the purpose of execution of
Detention Order dated 27 April, 2015 issued against him
under Section 3 (1) of COFEPOSA Act, 1974 for his
involvement in smuggling (Export) of prohibited item i.e.
Red Sanders and taking into consideration the propensity of
the petitioner to indulge into smuggling activities in future,
and now Shri Pawan Gupta being a Proclaimed Offender
under Section 7(4) (a) of ibid Act.
5. As regards the other query of the Hon’ble Court about
the steps taken to serve the detention order, which is under
challenge in this Petition, on the Petitioner at his address in
Nepal, it is respectfully submitted that execution of Detention
Order passed under Section 3(1) of the COFEPOSA Act upon
a proposed Detenue must in terms of Section 3(3) of ibid Act
followed with communication of grounds as well as relied
upon document on which the detention order has been passed
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ordinarily within five days after the execution of the order of
detention and in exceptional circumstances and for the
reasons to be recorded in writing, not later than fifteen days,
from the date of the detention of the COFEPOSA Act. In other
words, the service of detention order means, execution of
Detention order and to detain the person to whom detention
order is to be served. As regards limitation to serve the
Detention Order on the Petitioner absconder at his Nepal
address, it is respectfully submitted that as per Section 4 of
the COFEPOSA Act, 1974 a detention order can be executed
anywhere in India similar to arrest warrants under the Code
of Criminal Procedure, 1973. Procedure in respect of issuance
and execution of the Warrants has been defined in Section 70
and 75 of the Criminal Procedure Code and as per the said
provisions, the warrants is to be executed through
jurisdictional police. It is also submitted that in terms of
Section 6 of COFEPOSA Act, 1974, no detention order shall
be invalid or inoperative merely by reason – (a) that the
person to be detained thereunder is outside the limits of the
territorial jurisdiction of the Government or the officer
making the order of detention, or (b) that the place of
detention of such person is outside the said limits. Further, so
far as execution of the COFEPOSA Detention Order upon
Shri Pawan Gupta in Nepal being a sovereign country is
concerned, it is respectfully submitted that the said Detention
Order was to be executed through local/jurisdictional police
authorities i.e. Delhi Police Commissioner or DGP, Haryana
in accordance with his available residential addresses in Delhi
and Haryana respectively. After having verified the address
of Shri Pawan Gupta, a Proclaimed Offender being in Nepal,
necessary recourse of available legal persuasion including
extradition of proclaimed offender from Nepal to India is
being initiated.”
(emphasis supplied)
14. It was pointed out that steps for extradition were taken, however, in
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view of the certain limitations in the Extradition Treaty with Nepal, the
prosecution could not be commenced.
15. Learned Central Government Standing Counsel submitted that all
possible steps were taken to serve the Detention Order on the present
Petitioner, however, he deliberately absconded and therefore he cannot take
advantage of his own wrong. It is further urged that it is an admitted fact that
the wife of the Petitioner was present at South Extension address when the
search was conducted and she signed the panchnama. The Petitioner was well
aware of the proceedings in the present case as his family was present in India.
It is submitted that the detention order cannot be served in Nepal as it
necessarily involves taking the detenue in custody. Attention of this Court was
drawn to Section 4 of the COFEPOSA Act which provides as under:
“4. Execution of detention orders.–A detention order may
be executed at any place in India in the manner provided for
the execution of warrants of arrest under the Code of Criminal
Procedure, 1973 (2 of 1974).”
16. It is further submitted that in terms of Section 6 of the COFEPOSA Act,
the detention order will not be invalid and inoperative on the ground that the
person to be detained is outside the jurisdiction of Government or Officer
making the order of detention. Section 6 of the Act reads as under:
“6. Detention orders not to be invalid or inoperative on
certain grounds.
No detention order shall be invalid or inoperative merely by
reason– (a) that the person to be detained thereunder is
outside the limits of the territorial jurisdiction of the
Government or the officer making the order of detention, or
(b) that the place of detention of such person is outside the
said limits.”
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17. In view of the aforesaid provisions, the only available remedy left to
the Respondent was to take steps in terms of Section 7 of the COFEPOSA Act
which reads as under:
“7. Powers in relation to absconding persons.–
(1) If the appropriate Government has reason to believe that
a person in respect of whom a detention order has been made
has absconded or is concealing himself so that the order cannot
be executed, that Government may–
(a) make a report in writing of the fact to a Metropolitan
Magistrate or a Magistrate of the first-class having jurisdiction
in the place where the said person ordinarily resides; and
thereupon the provisions of sections 82, 83, 84 and 85 of the
Code of Criminal Procedure, 1973 (2 of 1974), shall apply in
respect of the said person and his property as if the order
directing that he be detained were a warrant issued by the
Magistrate;
(b) by order notified in the Official Gazette direct the said
person to appear before such officer, at such place and within
such period as may be specified in the order; and if the said
person fails to comply with such direction, he shall, unless he
proves that it was not possible for him to comply therewith and
that he had, within the period specified in the order, informed
the officer mentioned in the order of the reason which rendered
compliance therewith impossible and of his whereabouts, be
punishable with imprisonment for a term which may extend to
one year or with fine or with both.
(2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), every offence under
clause (b) of sub-section (1) shall be cognisable.”
18. It is submitted that the Respondents have taken all the necessary steps
in accordance with law and therefore, the order of detention cannot be set
aside on the ground that it is not been executed till date. It is submitted that
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the live link continues. Reliance is placed on the following judgments:
i. Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt.) 1992
Supp (1) SCC 496 (Relevant Paras 30, 32,34)
ii. Subhash Popatlal Dave v. Union of India & Anr. (2014) 1 SCC 280
(Relevant Paras 42,43,46)
iii. Naushad Ali vs Union of India & Ors. 2022 SCC OnLine Del 1141
(Relevant Paras 30,39,40-42)
iv. Bhupendra Thakkar vs. Union of India and Anr. Order W.P.(CRL.)
No. 3329/2017 (Relevant Paras 5 and 6)
v. Bhawarlal Ganeshmalji vs. State of T.N. (1979) 1 SCC 465
(Relevant Para 6)
vi. Mohd. Nashruddin Khan vs Union of India & Ors. 2020 SCC
OnLine Del 1190 (Relevant Paras 86, 87, 88, 89)ANALYSIS AND FINDINGS
19. Heard learned counsel for the parties and perused the record.
20. There is no dispute with regard to the proposition that the order of
detention is liable to be set aside on the ground of delay in execution, however,
each case would have to be seen in its own facts and circumstances. In a given
case, if there is a long and unexplained delay between the date of detention
order and execution of the same, it would be pertinent to assume that the live
link has snapped, however, in the present case, the detention order has not
been executed till date. The primary contention of the Petitioner is that despite
Nepal’s address being in knowledge of the Respondents, the detention order
was not served upon him at the said address. The Hon’ble Supreme Court in
Subhash Popatlal Dave (supra) while examining the issue whether
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the detention order can be quashed merely on the ground that there was a long
delay in execution of the same at the pre-execution stage by way of the
majority decision has observed and held as under:
Per Gyan Sudha Misra, J.
“16. Thus, if it is held that howsoever the grounds of detention might
be weighty and sustainable which persuaded the authorities to pass
the order of detention, the same is fit to be quashed merely due to
long lapse of time specially when the detenu is allowed to challenge
the order of detention even before the order of detention is served on
him, he would clearly be offered with a double-edged weapon to use
to his advantage circumventing the order of detention. On the one
hand, he can challenge the order of detention at the pre-execution
stage on any ground, evade the detention in the process and
subsequently would be allowed to raise the plea of long pendency of
the detention order which could not be served and finally seek its
quashing on the plea that it has lost its live link with the order of
detention. This, in my view, would render the very purpose of
preventive detention laws as redundant and nugatory which cannot
be permitted. On the contrary, if the order of detention is allowed to
be served on the proposed detenu even at a later stage, it would be
open for the proposed detenu to confront the materials or sufficiency
of the material relied upon by the authorities for passing the order of
detention so as to contend that at the relevant time when the order of
detention was passed, the same was based on non-existent or
unsustainable grounds so as to quash the same. But to hold that the
same is fit to be quashed merely because the same could not be
executed for one reason or the other specially when the proposed
detenu was evading the detention order and indulging in forum
shopping, the laws of preventive detention would surely be reduced
into a hollow piece of legislation which is surely not the purpose and
object of the Act.
17. Therefore, in my view, the order of detention is not fit to be
quashed and should not be quashed merely due to long lapse of time
but the grounds of detention ought to be served on him once he gains
knowledge that the order of detention is in existence so as to offer
him a plank to challenge even the grounds of detention after which
the courts will have to examine whether the order of detention whichSignature Not Verified W.P.(CRL) 2089/2017
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was passed at the relevant time but could not be served was based on
sufficient material justifying the order of detention. Remedy to this
situation has already been offered by this Court in Union of
India v. Parasmal Rampuria [(1998) 8 SCC 402 : 1998 SCC (Cri)
1537] wherein it was observed as under: (SCC p. 403, para 5)
“5. … 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 of India.”
18. The consequence that follows from the above is that each
individual/proposed detenu will have to be served with the order of
detention which had been passed against him along with the grounds
and the materials relied upon by the authorities to pass the order of
detention leaving it open to him to challenge the correctness of the
order by way of a representation before the appropriate authority or
court as per procedure prescribed. It is no doubt true that the
materials relied upon at the relevant time would be on the basis of
which the order of detention was passed so as to hold whether the
materials were sufficient and justified or not but when the
correctness of the order of detention is challenged in a court of law
at the pre-execution stage, then setting aside the order of detention
merely on the ground of long lapse of time might lead to grave
consequences which would clearly clash with the object and purpose
of the preventive detention laws.
xxx xxx xxx
20. It is also not possible to lose sight of the fact that if the petitioners
and the appellants had preferred not to challenge the order of
detention at the pre-execution stage or had not evaded arrest, the
grounds of detention would have been served on them giving them a
chance to challenge the same but if the petitioners and the appellants
have taken recourse to the legal remedy to challenge the order of
detention even before it was executed, it is not open for them to
contend that it should be quashed because there is no live link
between the existing/subsequent situation and the previous situation
when the order of detention was passed overlooking that they
succeeded in pre-empting the order by challenging it at the pre-
execution stage never allowing the matter to proceed so as to
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examine the most crucial question whether there were sufficient
material or grounds to pass the order of detention.
21. Subsequent events or conduct in any view would be a matter of
consideration for the authorities before whom the representation is
filed after the grounds are served on the detenu and cannot be gone
into when the only question raised is regarding the correctness and
legality of the order of detention. The alternative view is bound to
operate as a convenient tool in the hands of the law-breakers which
has not been approved earlier by this Court in the decisions referred
to earlier.
22. A fallout and consequence of the aforesaid discussion, therefore,
in my view, is that the order of detention cannot be quashed and set
aside merely due to long lapse of time on the specious plea that there
is no live link between the order of detention and the subsequent
situation. I am, therefore, of the considered opinion that the order of
detention is not fit to be quashed merely due to long lapse of time
specially when the orders of detention have been allowed to be
challenged even at the pre-execution stage on any ground.
23. It is, therefore, legally appropriate to serve the order of detention
on the proposed detenu leaving it open to them to challenge the same
after the grounds are served on them so as to appreciate whether
there had been sufficient materials before the detaining authorities to
pass the orders of detention which were existing at the relevant time
and approve or disapprove the same.
Xxx xxx xxx
Per Jasti Chelameswar, J.
39. Whether the test of live nexus developed by this Court in the
context of examining the legality of the order of preventive detention
can be automatically applied to the question of the legality of the
execution of the preventive detention orders where there is a
considerable time-gap between the passing of the order of preventive
detention and its execution is the real question involved in these
matters.
40. To answer the question, we must analyse the probable reason for
the delay in executing the preventive detention orders. There could
be two reasons which may lead to a situation by which the preventive
detention order passed by the competent authorities under the
various enactments could remain unexecuted:
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(1) the absconding of the proposed detenu from the process of law,
(2) the apathy of the authorities responsible for the implementation of the
preventive detention orders.
Xxx xxx xxx
42. It can be seen from the said Section 7 that in a case where
proposed detenu is absconding or concealing himself, the
Government may report the matter to the Magistrate having
jurisdiction over the place where the proposed detenu ordinarily
resides. On making of such report by the Government, the provisions
of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure
apply to the proposed detenu and his property, as if the order of
preventive detention is a warrant issued by the Magistrate under the
provisions of the Code of Criminal Procedure. In substance, the
property of the proposed detenu could be attached and perhaps even
be confiscated in an appropriate case. Apart from that the State can
also by notification in the Official Gazette direct the proposed detenu
to appear before an officer specified in the said notification at such
place and time. Failure to comply with such notified direction on the
part of the proposed detenu–without a reasonable cause–is made
an offence punishable either with imprisonment for a term extending
up to one year or with fine or both.
43. If a preventive detention order is to be quashed or declared illegal
merely on the ground that the order remained unexecuted for a long
period without examining the reasons for such non-execution, I am
afraid that the legislative intention contained in the provisions such
as Section 7(1)(b) of the Cofeposa Act would be rendered wholly
nugatory. Parliament declared by such provision that an
(recalcitrant) individual against whom an order of preventive
detention is issued is under legal obligation to appear before the
notified authority once a notification contemplated under Section
7(1)(b) of the Cofeposa Act is issued. We have already noticed that
failure to appear without a reasonable excuse would be an offence
and render the defaulter liable for a punishment of imprisonment.
Holding that the preventive detention orders are themselves rendered
illegal, on the basis of the live nexus theory (which, in my opinion,
is valid only for examining the legality of the order vis-à-vis the date
on which the order is passed) would not only exonerate the person
from the preventive detention order but also result in granting
impunity to such person from the subsequent offence committed by
him under the provisions such as Section 7(1)(b) of
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the Cofeposa Act.
44. This question fell for consideration of this Court on more than
one occasion. In Bhawarlal Ganeshmalji v. State of T.N. [(1979) 1
SCC 465 : 1979 SCC (Cri) 318] , this Court speaking through O.
Chinnappa Reddy, J. held: (SCC p. 469, para 6)
“6. … where the delay is not only adequately explained but is found
to be the result of the recalcitrant or refractory conduct of the detenu
in evading arrest, there is warrant to consider the ‘link’ not snapped
but strengthened.”
It was a case where the detenu evaded the arrest for a period of more
than 3 years but eventually surrendered himself before the
Commissioner of Police, Madras and then challenged the order of
detention. One of the submissions before this Court was that the
detention order must be considered to have lapsed or ceased to be
effective in the absence of the fresh application of mind of the
detaining authority to the question of continuing necessity for
preventive detention. This Court rejected the submission. The said
principle was followed in M. Ahamedkutty v. Union of
India [(1990) 2 SCC 1 : 1990 SCC (Cri) 258] .
45. Once again in Union of India v. Arvind Shergill [(2000) 7 SCC
601 : 2000 SCC (Cri) 1422] , this Court held that: (SCC p. 605, para
6)
“6. … we do not think that it would be appropriate to state that
merely by passage of time the nexus between the object for which
the husband of the respondent is sought to be detained and the
circumstances in which he was ordered to be detained has snapped.”
It was a case where the detention order was challenged at the pre-
execution stage before the High Court and the High Court had stayed
the execution of the order and the matter was pending for some time.
After losing the matter in the High Court, the proposed detenu
approached this Court without surrendering and advanced the
argument that the live nexus snapped in view of the delay in
executing the preventive detention order. The submission was
rejected.
46. Therefore, I am of the opinion that those who have evaded the
process of law shall not be heard by this Court to say that their
fundamental rights are in jeopardy. At least, in all those cases, where
proceedings such as the one contemplated under Section 7 of
the Cofeposa Act were initiated consequent upon absconding of the
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proposed detenu, the challenge to the detention orders on the live
nexus theory is impermissible. Permitting such an argument would
amount to enabling the law-breaker to take advantage of his own
conduct which is contrary to law.
47. Even in those cases where action such as the one contemplated
under Section 7 of the Cofeposa Act is not initiated, the same may
not be the only consideration for holding the order of preventive
detention illegal. This Court in Shafiq Ahmad v. District Magistrate,
Meerut [(1989) 4 SCC 556 : 1989 SCC (Cri) 774] , held so and the
principle was followed subsequently in M. Ahamedkutty v. Union
of India [(1990) 2 SCC 1 : 1990 SCC (Cri) 258] , wherein this Court
opined that in such cases, the surrounding circumstances must be
examined [ “14. In Shafiq Ahmad v. District Magistrate, Meerut,
(1989) 4 SCC 556 relied on by the appellant, it has been clearly held
that what amounts to unreasonable delay depends on facts and
circumstances of each case. Where reason for the delay was stated
to be abscondence of the detenu, mere failure on the part of the
authorities to take action under Section 7 of the National Security
Act by itself was not sufficient to vitiate the order in view of the fact
that the police force remained extremely busy in tackling the serious
law and order problem. However, it was not accepted as a proper
explanation for the delay in arresting the detenu. In that case the
alleged incidents were on 2-4-1988/3-4-1988/9-4-1988. The
detention order was passed on 15-4-1988 and the detenu was arrested
on 2-10-1988. The submission was that there was inordinate delay
in arresting the petitioner pursuant to the order and that it indicated
that the order was not based on a bona fide and genuine belief that
the action or conduct of the petitioner were such that the same were
prejudicial to the maintenance of public order. Sabyasachi Mukharji,
J., as my Lord the Chief Justice then was, observed that whether
there was unreasonable delay or not would depend upon the facts
and circumstances of a particular situation and if in a situation the
person concerned was not available and could not be served, then the
mere fact that the action under Section 7 of the Act had not been
taken, would not be a ground for holding that the detention order was
bad. Failure to take action even if there was no scope for action under
Section 7 of the Cofeposa Act, would not by itself be decisive or
determinative of the question whether there was undue delay in
serving the order of detention.” (M. Ahamedkutty case, p. 10, para
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14)] . In both Shafiq Ahmad [(1989) 4 SCC 556 : 1989 SCC (Cri)
774] and Ahamedkutty [(1990) 2 SCC 1 : 1990 SCC (Cri) 258]
cases, these questions were examined after the execution of the
detention order. Permitting an absconder to raise such questions at
the pre-execution stage, I am afraid would render the jurisdiction of
this Court a heaven for characters of doubtful respect for law.
48. This Court in Alka Subhash Gadia [Govt. of India v. Alka
Subhash Gadia, 1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] ,
emphatically asserted that “it is not correct to say that the courts have
no power to entertain grievances against detention order prior to its
execution”. This Court also took note of the fact that such an inquiry
had indeed been undertaken by the courts in a very limited number
of cases and in circumstances glaringly untenable at the pre-
execution stage.
(emphasis supplied)
21. As per the above decision in Subhash Popatlal Dave (supra) mere
delay in execution of detention order per se cannot lead to quashing of the
same. The reasons for non-execution of the detention order deserves to be
examined viz., whether the detenue is evading/ absconding or the authorities
have been recalcitrant. If it is the former, then quashing may not be warranted.
The aforesaid judgement of the Hon’ble Supreme Court in Subhash Popatlal
Dave (supra) has been followed by coordinate Division Benches of this Court
in Naushad Ali (supra) and Mohd. Nashruddin Khan (supra).
22. On the other hand, the judgements relied upon by the Petitioner with
respect to the aforesaid issue of non-execution of detention order are
distinguishable on the facts of the case. In Abhishek Gupta (supra) the
Detaining Authority could not explain the fact that the detention order of the
Petitioner therein could not be served on the two dates when he appeared
before the Trial Court despite the availability of the Petitioner.
23. Similarly in Smt. Naseem Imran Mohd Siddique (supra), steps under
Section 7 of the Act were initiated on the admitted wrong address of the
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Petitioner therein. In Maqsud Yusuf Merchant (supra) the Petitioner
therein had approached the Settlement Commission under the Customs Act
which granted immunity from prosecution to the Petitioner along with a
penalty. Thereafter the Petitioner again moved the High Court in its writ
jurisdiction and the matter was ultimately remitted back to the Settlement
Commission, which set aside its own order regarding the penalty.
24. In the present case, as already noted above, the Petitioner was not
available at any given address for its execution in India. The Petitioner’s stand
is that the detention order has to be executed on his Nepal address which was
not done by the Respondents herein. The said stand is not tenable, in view of
the discussion below.
25. It has already come on record that the Respondents had taken all the
possible steps as provided for in the COFEPOSA Act to ensure the presence
of the Petitioner, however the latter did not surrender before any authority and
continues to evade the process of law. As noted hereinabove, Section 4 of the
COFEPOSA Act provides for execution of the detention order in a manner
similar to an arrest warrant under Cr.P.C. Thus, it is clear that service of
detention order, in other words, would mean to detain the person on whom it
is to be served. This process could not have been initiated by the Respondents
on the Petitioner at his Nepal address. The sending or communicating the
detention order on the Petitioner at his Nepal address would not be proper
procedure under the provisions of the COFEPOSA Act read with the
provisions of the CrPC.
26. Learned Counsel for the Respondent has also placed on record the
Treaty of Extradition between the Government of India and the Government
of Nepal dated 22nd February, 1963 and in particular drew the attention of the
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Court to the following articles:
“Article 2
Neither Government shall be bound in any case to surrender
any person who is not a national of the country by the Government
of which the requisition has been made, except where such person is
accused of having committed the offence specified in clause (10) of
Article 3.
Article 3
The offences for which extradition is to be granted in
accordance with this Treaty are the following, namely :-
(1) Murder or attempt or conspiracy to murder,
(2) Culpable homicide not amounting to murder,
(3) Grievous hurt,
(4) Rape,
(5) Dacoity,
(6) Highway robbery,
(7) Robbery with violence,
(8) Burglary or house breaking,
(9) Arson,
(10) Desertion from Armed forces.
(11) Offences against the laws prohibiting the export and import of
goods,
(12) Embezzlement by public officers,
(13) Serious theft, that is to say, cases of theft where violence has
been used or where the value of the property stolen exceeds Rs.
500 and cattle stealing,
(14) Abduction or kidnapping,
(15) Forgery and the use of what is known to be forged,
counterfeiting or altering money; uttering or bringing into
circulation counterfeited or altered money,
(16) Receiving of illegal gratification by a public servant,
(17) Escaping from custody while undergoing punishment after
conviction for any of the offences specified in clauses (1) to
(16).”
27. Thus, as per the aforesaid treaty, a citizen of Nepal can be only
extradited for an offence described under Article 3(10) “desertion from armed
forces” which is not applicable in the present case. As already noted
hereinabove, the only way in which a detention order can be executed is by
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detaining the person on which it is being so executed and that could have been
only possible if the Petitioner was within the jurisdiction of India. It is also a
matter of record that the Petitioner filed an application for Anticipatory Bail
before ld. Special Judge, MCOCA/TADA/POTA, ASJ-03, Patiala House
Courts, New Delhi on 22nd March, 2017. The said application was dismissed
for non-prosecution after being adjourned for four dates.
28. It is the admitted case of the Petitioner that he was in India in April
2014 where he was being treated at the Medanta Hospital and his case is that
he had left India before the alleged seizure in October 2014. It is also not
disputed by the Petitioner that at the time of the search at his alleged residence
in South Extension, his wife was present who had signed the panchnama. It
is also a matter of record that co-accused/co-detenue of the Petitioner, i.e.,
Deepak Verma had also challenged his detention order of the even date and
after the dismissal of the same, the present petition has been filed. During the
course of the arguments, it was pointed out that the Petitioner after leaving
Delhi did not return to India thereafter at any given point of time. In support
of the said argument, it was pointed out that the Passport of the said applicant
was issued by the authorities in Nepal on 24th September, 2014 which
thereafter expired on 23rd September, 2024 and subsequently a fresh Passport
had been issued on 7th March, 2019 which is currently valid. This Court while
recording the aforesaid submissions passed the following order on 29th July,
2024:
“6. The Court notes that the seizure of goods and arrest of the
accomplice was done between 21st October, 2014 to 29th
October, 2014. As per the writ petition, the Petitioner was stated
to be in India in April, 2014 when he was admitted to the
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is stated to be in Kathmandu, Nepal. The exact date when he
left India is not clear from the writ petition or from the record.
7. Accordingly, a short affidavit shall be filed by the Petitioner
giving the dates when the Petitioner left India along with copies
of his passport. Let the same be filed within one week.”
29. In pursuance of the aforesaid order an affidavit dated 12th August, 2024
was filed by the Petitioner. In the affidavit it has been stated that the Petitioner
left India in the month of July, 2014 and was admitted in Hospital in
Kathmandu, Nepal from 2nd August, 2014 to 10th August, 2014. It is further
stated that his earlier passport got expired so he was issued a fresh passport in
September, 2014. The original Passport was shown to this court and the
following order was passed on 20th August, 2024:
“2. An affidavit dated 12th August, 2024 has been filed on
behalf of the Petitioner placing on record the details regarding
the travel of the Petitioner.
3. The case of the Petitioner in the affidavit is that the earlier
passport had expired and the same is not available with the
Petitioner. However, the new passport was received by the
Petitioner, with effect from24th September, 2014 at
Kathmandu, Nepal and from September, 2014 onwards, the
Petitioner has not travelled to India. Copy of the said passport
along with the relevant pages have been annexed along with the
said affidavit.
4. Mr. Digpaul, ld. CGSC, on the other hand, submits that for
travelling to and from Nepal, no passport or visa is required.
5. In any case, it is admitted by the Petitioner in the writ petition
that after November, 2014, the Petitioner has not travelled to
India. It is his case now, that during the relevant period from
21st to 29th October, 2014, there is nothing on record to show
that the Petitioner was in India.
6. The original passport has been shown to the Court and the
same has been perused by the Court.
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7. Let a clear colour photocopy of the entire passport be placed
on record.”
30. Subsequently, the Petitioner was asked to bring both the original
passports issued to him on 24th September, 2014 and 7th March, 2019 vide
order dated 30th August, 2024. Finally on 19th September, 2024 both the
original Passports were produced before this court and the following was
observed:
“2. Two original passports have been produced before the
Court. The details of the same are as under:-
S.No. Passport Date of Issue Date of Expiry
No.
1. 07899371 24th September, 2014 23rd September, 2024
2. 11349829 7th March, 2019 6th March, 2029
3. In both the passports the cover page shows that the passports
have 32 pages. In the latest passport, i.e., 11349829, at page 31,
the details of the earlier passport, i.e., 07899371 is given and
the same is shown as a cancelled passport. However, in the
passport bearing No. 07899371, pages 31 and 32 are missing
from the original passport.
4. The passport which was valid in 2014 and was used to travel
to India allegedly between April to July is stated to be missing
and the said passport has also not been produced. Details of the
said earlier passport are also not available in the passport
bearing No. 07899371 at page 31 as the said pages 31-32 are
missing from the passport bearing No. 07899371. The period
which is relevant for the present case is April to October 2014.
The passport for the said period is not produced. It cannot be
therefore, categorically accepted that in September-October
2014 the Petitioner was not present in India.
5. Mr. Soni, ld. Standing Counsel on the other hand submits
that to travel from India to Nepal, a visa is not required, andSignature Not Verified W.P.(CRL) 2089/2017
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only an identity card is usually required.
6. As per the observation of this Court, the missing pages 31
and 32 in the passport bearing No. 07899371 appear to be
clearly an attempt by the Petitioner not to reveal the details of
the earlier passport. The passport bearing no. 07899371 has
also been shown to the Counsel for the Petitioner and he was
also queried regarding the missing pages 31 and 32, to which
he candidly admits that the said pages 31 and 32 do not exist.
7. Both the original passports are returned to the Counsel for
the Petitioner and the coloured photocopies (cover-to-cover)
have been retained by the Court.”
31. A perusal of the aforesaid proceedings would reflect that the Petitioner
has placed on record documents which are clearly manipulated and an attempt
has been made to conceal some information from this Court. It is pertinent to
note that Page 31 of the Passport contains the details of the previous Passport
held by the concerned person, which can be observed from Page 31 of the
Passport of the Petitioner issued to him on 19th March, 2019 which has been
reproduced as under:
The highlighted portion shows the details of previous passport of the
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Petitioner issued on 24th September, 2014.
32. However, the said Page 31 has been torn from the booklet issued to the
Petitioner on 24th September, 2014. As noted hereinabove, the said remnants
of torn up page were clearly visible in the original passport as has been
recorded so in the aforesaid order. Thus, a tampered document has been
sought to be placed on record. It may also be noted that the Passport issued to
the Petitioner on 24th September, 2014 carries endorsement of certain travel
made by him which starts from the period 28th August, 2015.
33. It is pertinent to note that the learned counsel for the Petitioner had
vehemently argued that each time a person from Nepal enters or exits India,
an endorsement to the said effect is made on the passport and it was for that
purpose the passport was placed on record to demonstrate that there is no
endorsement of the relevant period. In these circumstances details of previous
passport, if any, on page 31 of the passport issued in September 2014 becomes
significant. It is possible that the passport which the Petitioner has chosen not
to place on record either never existed or would have shown some material
contradictory to the aforesaid stand. Be that as it may, it is settled legal
position that a person must have approached the Writ Court with clean hands.
In K. Jayaram And Others v. Bangalore Development Authority and
Others, (2022) 12 SCC 815, it was observed and held as under:-
“10. It is well-settled that the jurisdiction exercised by the High
Court under Article 226 of the Constitution of India is
extraordinary, equitable and discretionary and it is imperative that
the petitioner approaching the writ court must come with clean
hands and put forward all facts before the court without concealing
or suppressing anything. A litigant is bound to state all facts which
are relevant to the litigation. If he withholds some vital or relevant
material in order to gain advantage over the other side then he
would be guilty of playing fraud with the court as well as with theSignature Not Verified W.P.(CRL) 2089/2017
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opposite parties which cannot be countenanced.”
34. It is pertinent to note that the Petitioner has still not been served with
the detention order. In similar circumstances, the Hon’ble Supreme Court in
Union of India v. Parasmal Rampuria, (1998) 8 SCC 402 observed and
held as under:
“4. 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 13-9-1996 against the respondent. The respondent
before surrendering filed a writ petition in the High Court on 23-
10-1996 and obtained ad interim stay of the proposed order which
had remained unserved. 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.
5. 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 of
India. It is true as the learned Senior Counsel for the respondents
submits that the appeal is partly heard before the Division Bench
and the last hearing was over on 4-6-1997 and thereafter, the Bench
has not reassembled. It is obvious that for the same neither the
respondent nor the appellant is at fault. However, the fact remains
that the detention order dated 13-9-1996 has still not been executed
and the respondent has not surrendered. Under these circumstances,
in our view, it will be appropriate to direct that the ad interim relief
which is extended from time to time by the Division Bench of the
High Court and which was continued all throughout, shall stand
vacated. We also vacate the further orders of extension of interim
relief and direct the respondent to surrender in the light of the
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to challenge the detention order and these grounds will have to be
considered by the High Court on their own merits after hearing the
parties. These appeals have been moved also against various
extensions of interim relief orders passed by the Division Bench
pending the appeal. All these extension orders are also set aside.
We make it clear that we make no observation on the merits of the
controversy centering round this detention order. The said
controversy will have to be resolved by the High Court in the
pending writ petition after hearing the contesting parties.”
(emphasis supplied)
35. Similarly, in Bhupendra Thakkar (supra), a learned Division Bench
of this Court in similar circumstances passed the following order:
“1. In this writ petition, the main ground urged is that since the
impugned detention order dated 13th October, 2003 was passed
nearly 14 years ago, it should be quashed.
2. In response to the petition, it has been pointed out inter alia by
the Respondents that the Petitioner cannot take advantage of the
fact that the detention order has remained unexecuted for over 13
years. It is pointed out that the legal requirement is that the detenue
must first surrender to the process of law before seeking legal
remedies. He cannot be allowed to take advantage of his own
conduct of evading the process of law.
3. It is further stated by the Respondents in reply to grounds 6 and
7 that the question of considering the plea of the Petitioner for
revoking the order of detention would arise only if the Petitioner
first surrenders.
4. The above stand of the Respondents does not seem to be
unreasonable. The Petitioner cannot take advantage of the fact that
he himself was evading the process of law and till date has not
surrendered. Whether in a given case, a detention order should be
revoked due to lapse of time is a call that should be taken by the
Detaining Authority. There cannot be a mandamus issued in every
case where there is a delay in executing the detention order that due
to the lapse of time, it should be revoked. The conduct of the
detenue would also be relevant factor. However, in a given case,
where the detenue surrenders after a considerable lapse of time, the
Detaining Authority may want to take a call as to whether any
useful purpose would be served in continuing with the order of the
detention.
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5. In the present case that stage has not been reached since the
Petitioner is yet to submit to the process of law. As and when the
Petitioner does that, the Respondents can decide whether they need
to continue with the order of detention taking into account all the
relevant factors.
6. This Court is not inclined to grant the relief prayed for by the
Petitioner, at this stage.
7. The petition and the application are accordingly dismissed.”
36. In view of the above discussion and the material placed on record, this
Court is of the considered opinion that the only procedure for serving the
detention order on the Petitioner, is in the manner provided under the Section
4 of the COFEPOSA Act, i.e., by detaining the person on whom the order is
served, in the absence of the same, the proceedings as contemplated under
Section 7 of the COFEPOSA Act are required to be initiated in case the
proposed detenue has absconded. In Subhash Popatlal Dave (supra) the
Hon’ble Supreme Court has held that in cases where proceedings under
Section 7 of the COFEPOSA Act has been initiated after abscondence of the
proposed detenue, the challenge to the detention orders on the live link theory
is impermissible. The present Petitioner has managed to evade the law and
service of the detention order since passing of the same, i.e., 27th April, 2015.
From the passports that have been produced there is a clear attempt to hide
relevant information especially details of passport used during the relevant
period documenting his entry into or exit from India. The said passport or the
details of the said passport have not been given to the Court. Under such
circumstances the Court has no option but to draw an inference that the said
passport may have in fact established that the Petitioner has evaded the service
of the Detention Order. Presence of Petitioner’s wife during the search
conducted at his alleged residence in South Extension may have a role in his
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disappearance from India. The Petitioner for the present purposes, due to the
non-production of the relevant passport document, would have to be treated
as a person who has absconded deliberately. Nothing has been shown to prove
otherwise or to establish the bonafide of the Petitioner.
37. The prayer of the Petitioner with respect to non-consideration of the
representation dated 3rd July, 2017 is also not maintainable as the right of
representation to the detenu is available post execution of the said detention
order in terms of Article 22(5) of the Constitution of India. Thus, in the facts
and circumstances of the case, the Court finds no ground to interfere with the
detention order dated 27th April, 2015 bearing F. NO. 673 /13/2015-CUS.VIII
issued against Sh. Pawan Gupta under section 3 (1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA)
Act, 1974 by the Respondent No.2 at this stage. However, in case the
Petitioner surrenders, his representation may be considered, keeping in mind
the considerable time that has lapsed since the time of passing the Detention
Order, by the Competent Authority to decide whether the impugned order of
detention needs to be continued in accordance with law.
38. The present petition is dismissed and disposed of.
39. Pending application(s), if any, also stand disposed of.
40. Judgment be uploaded on the website of this Court forthwith.
AMIT SHARMA, J.
PRATHIBA M. SINGH, J.
OCTOBER 16, 2024/bsr/nk/sn
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SINGH RAWAT
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