RAVINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) We may at the outset notice that this petition has a chequered career inasmuch as it first went to a learned single Judge of this court who by an order dated 11th of December 1985 following the judgment of the Supreme Court directed that the petitioner shall not be arrested pursuant to the impugned detention order under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) subject to certain conditions. But when the writ petition came up for final hearing before another learned single Judge of this court, he noticed two Division Bench judgments of this court conflicting on the point whether a writ petition under Article 226 of the Constitution of India is maintainable or not before the detention order is actually served upon the detenu and executed. The learned single Judge by his order dated 14th of August 1987 therefore was of the view that to resolve the conflict between the two Division Bench judgments of this court, the matter should be. heard by a larger bench. Subsequently, another Division Bench of this court by its order dated 23rd of November 1987 passed an order that the writ of mandamus was prima facie maintainable. Mr. Herjinder Singh has today invited our attention to the case S.M.D. Kiran Pasha v. The Government of Andhra Pradesh & others, a decision of the Supreme Court dated 9th of November 1989 appearing in Judgments Today 1989 (4) S.C. 366. (1) This judgment is to the effect that a post-detention writ petition under Article 226 is only for the restoration of the personal liberty while a writ petition under Article 226 for a threatened detention is also maintainable. That, in our view, settles the matter and there is no need for us to maice a reference to a larger bench as the law laid down by the Supreme Court is binding on all Courts,

(2.) Now the real grievance, of the petitioner is that he is sought to be detained pursuant to an order dated 5th of August 1985 passed by the Administrator. Uni'on Territory of Delhi, under section 3(1) of the COFEPOSA Act. In fact, detention orders were passed against Gurcharan Singh, Kuldip Singh, Narinder Singh and Mohinder .Singh as well and all of whom had filed writ petitions which were allowed by this court and the detention orders in respect of those persons were quashed on the ground that the grounds of detention were stale inasmuch as the detention order was passed 16 months after the incident and there was no satisfactory explanation forthcoming for the belated passing of the order. Mr. Herjinder Singh has filed before us judgments in Criminal Writ Petition No. 276 of 1985 Shri Kuldip Singh vs. Union of India and others decided on 5th of February 1986, Criminal Writ No. 297 of 1981 Shri Mohinder Singh vs. Union of India and others decided on 11th of February 1986 and Criminal Writ: No. 241 of 1985 Narinder Singh vs. Union of India and others decided on 4th of December 1985. All these detentions in the aforementioned writ petitions were based on the same incident in respect of which the petitioner is sought to be detained by virtue of the aforesaid detention order dated 5th of August 1985.

(3.) To begin with, we may make a brief reference to some of the facts. The present petition arises out of an incident dated 21st of March 1984 regarding the import of goods from Hongkong and the consignment contained articles valued at Rs. 15,07,600.00 which were allegedly smuggled into this country by the petitioner and his other accomplices, reference to whom has been made above.