VIKASH AGGARWAL Vs. UOI

JUDGEMENT

(1.) By Writ Petition Criminal No. 1495 of 2006 under Article 226 of the Constitution of India, the petitioner herein seeks a writ in the nature of mandamus, certiorari and/or any other suitable writ seeking quashing of the order of detention bearing F. No. 673/19/2005-CUS.VIII, dated 28.12.2005 issued against the petitioner by Sh. R.K. Gupta, Joint Secretary to the Government of India, New Delhi, under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in terms whereof, the petitioner is being sought to be detained for a period of one year in Central Jain, Tihar, New Delhi.

(2.) Brief facts of the case as have been stated in the synopsis to the writ petition, pursuant whereto the petitioner has filed this petition in the High Court at Delhi, are as under:-

(3.) Learned counsel for the petitioner contends tha't he can challenge the order of detention prior to its execution on any of the grounds mentioned in 1992 Supp. (1) SCC 496; Additional Secretary to the Government of India and others v. Alka Subhash Gadia and another. He contends that the order under challenge has been passed for a wrong purpose and that it is vague, based on extraneous and irrelevant grounds. He contends that this Court in view of the above judgment has the jurisdiction to entertain the present writ petition which is maintainable. Learned counsel contends that in the present case, the order of detention has been issued under Section 3 (1) (i) with a view to preventing the petitioner from smuggling goods in future whereas the entire material placed on record, if assumed to be correct, makes out a case for abetting the smuggling of goods under Section 3 (1) (ii) or dealing in smuggled goods otherwise than by engaging in transporting, concealing or keeping smuggled goods which falls under Section 3 (1) (iv) of COFEPOSA and is a case of non-application of mind. He also contends that he is challenging the order of detention on the ground that vital and relevant documents were not placed before the Detaining Authority which has vitiated the subjective satisfaction rendering the detention order bad. Another ground taken by the learned counsel is that the order of detention is malafide inasmuch as it has been passed at the behest of officers of DRI with a view to seek revenge on account of petitioner's father having filed criminal complaint against officers of the DRI pursuant to their demanding bribe in which complaint Y.S. Verma, Senior Intelligence Officer, DRI was caught red handed taking a bribe of Rs. 5 lacs from the petitioner's father. Further to this, a search was conducted by the CBI at the residence of M.M. Tiwari who is being prosecuted for disproportionate assets. The grounds of challenge of detention taken in the writ petition inter alia are as follows :-