ANIL KUMAR AGGARWAL Vs. UOI

JUDGEMENT

(1.) The petitioner, by means of this writ petition, challenges the detention order dated 23.09.2009 issued by Ms. Rasheda Hussain, Joint Secretary to the Government of India in exercise of the powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974(hereinafter referred to as 'COFEPOSA Act') pursuant to which his brother Sh. Raj Kumar Aggarwal has been detained and kept in custody I Central Jail, Tihar, New Delhi. The petitioner's brother Sh. Raj Kumar Aggarwal(hereinafter referred to as 'the detenu') has been in preventive detention since 08.05.2013.

(2.) Prior to the filing of the present habeas corpus petition the detenue himself had also filed a writ petition(being Crl.W.P.No1787/2009) challenging the detention order dated 23.09.2009 at pre-execution stage but the same was dismissed by a Division Bench of this Court vide judgment dated 18.03.2010. That judgment was then challenged by the detenue before the Hon'ble Supreme Court by filing a Special Leave Petition(being SLP(Crl.) No. 2698/2010) but there also he could not succeed in getting the detention order quashed at pre-execution stage. He was, however, permitted by the Hon'ble Supreme Court to challenge the detention order on all the grounds after the execution of the detention order and so that Special Leave Petition came to withdrawn by the detenue on 13.07.2010. During the pendency of that SLP the detenue had also filed a writ petition(being W.P.(CRL.) NO. 65/2010) under Article 32 of the Constitution of India in the Supreme Court challenging the constitutional validity of some part of Section 3(1) of the COFEPOSA Act but finally that petition was also rejected on 02.07.2012.

(3.) The detenue, whose arrest had been stayed by the Division Bench of this Court during the pendency of his pre-execution stage writ and which stay was continued by the Supreme Court in the SLP as well as in the writ petition under Art. 32, was then arrested on 08.05.2013 after the rejection of his writ petition on 02.07.2012. Then the present habeas corpus writ petition was filed by the brother of the detenue for his release. During the pendency of this writ petition the Advisory Board had confirmed the detention order and then challenge to that decision was also added in the writ petition by way of amendment.