BAKULA BANUPRASAD MEHTA Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner is the mother of one A. B. Mehta against whom an order of detention was passed on 15. 12. 1993 under the Conservation of foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the COFEPOSA Act. But it transpires that the said Mehta has not been apprehended in the sense that the order of detention has not been implemented. THE petitioner's son Mehta is having a company at Bombay dealing in electronic goods. He purchased a special import licence from M/s. Deccan Enterprises and under the said licence, he is entitled to import goods to the tune of Rupees Eighty Lakhs. At the relevant time the entire entitlement enabling the holder of the licence to import up to Rupees Eighty lakhs was unutilised. In respect of an import of goods under a Bill of Entry, dated 10. 8. 1993, certain irregularities were found between the actual consignment and the Bill of Entry. THEre were also disputes regarding the valuation of the goods. It is on he above irregularity in the import of the goods and certain other materials gathered by the respondent that the order of detention was passed. In March, 1994. In respect of the import of the goods under Bill of Entry, dated 10. 8. 1993, the petitioner was arrested and later enlarged on bail. An order of adjudication was also passed on 23. 11. 1994 permitting the said Mehta to redeem the goods on payment of redemption fine of Rupees Thirty lakhs.

(2.) IN this writ petition, we are mainly concerned with two representations sent by the petitioner herself on 27. 5. 1994 and another representation by her son Mehta on 23. 12. 1994. Under both the representations, the petitioner and her son sought for revocation of the order of detention under Sec. 11 of the COFEPOSA Act. It is the case of the petitioner that the respondent is bound by the statue to consider the representations and pass orders under Sec. 11 of the COFEPOSA Act, notwithstanding the fact that the order of detention is implemented or not. It is the further case of the petitioner that the order of detention itself could not have been passed for any valid reason because the petitioner's son had a special import licence. IN other words, the power under the COFEPOSA Act had been misused of abused. The petitioner therefore prays for the issue of a writ of mandamus or any other writ, to forbear the respondent from implementing the order of detention.

(3.) MR. I. Subramaniam, learned Additional Public prosecutor, has projected the case of the respondent on the basis of the judgment in Alka Subhash Gadia's case, 1992 S. C. C. (Crl.) 30 earlier referred to, and two other subsequent judgments and contends that unless any one of the five grounds set out by the Supreme Court of India are shown to exist, the writ petition itself cannot be entertained. Taking first the judgment in Alka Subhash Gadia's case, it has to be remembered that in that case the questions that fell for consideration were framed as follows: "the next question of law that falls for consideration is whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it. As a corollary to this question, the incidental question that has to be answered is whether the detenu or the petitioner on his behalf, as the case may be, is entitled to the detention order and the grounds on which the detention order is made before the detenu submits to the order". It is only in that context the Supreme Court observed: "thirdly, and 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. " The Apex Court then proceeded to lay down five grounds on which relief can be granted at the pre-detention stage. It is the argument of learned Public Prosecutor that unless those five grounds are available no writ petition can be entertained at the pre-detention stage. He projects his arguments on the basis of Art. 22 of the Constitution of India. According to him, the protection given under Art. 21 is governed and conditioned by Art. 22 of the Constitution of India. It is only under Art. 22 (5) of the Constitution of india that a detenu gets the earliest opportunity of making a representation against the order. In other words, unless and until the order of detention is served on the detenu there is no question of making any representation. Consequently, there is no question of considering the representations of the petitioner and her son in this case.