G HARIGOPAL Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner wants us to issue a writ of mandamus to forbear the respondents from arresting and detaining the petitioner pursuant to the detention order passed against the petitioner under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. In the instant case, the order of detention is yet to be served and to be executed. In short, we are at the pre-detention stage, In THE Additional Secretary to the Government of India and others v. Alka Subbash Gadia and another, (1990)2 Scale 1352 Criminal Appeal Nos. 440 to 441 of 1989, judgment dated 20.12.1990 also reported in with regard to the scope of the power of Courts to interfere with the order of detention before its execution, this is what has been laid down: ?Thirdly, as this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. THE Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts 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. THE refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to an abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the provision of the law in question.?

(2.) MR.K.A. Jabbar, learned counsel for the petitioner, urges several grounds trying to bring them within the ratio of the Supreme Court. We will presently refer to them. But, of the grounds urged, we are convinced that the grounds of delay in making the order of detention will come within the mischief of Clause (iv) as per the ratio set down by the Supreme Court in the pronouncement, referred to above, so as to make the grounds of detention irrelevant and losing their potency. The incident occurred admittedly on 19.12.1989. The order of detention yet to be served and executed has come to be made on 21.3.1990. In paragraph 10(v) of the affidavit, filed in support of the writ petition, this is how the petitioner has advanced his grievance from this angle: