BALBIR SINGH SETHI Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution of India seeks issuance of a writ of certiorari quashing the detention order bearing no. 673/80/2000-Cus. VIII dated 16-2-2001, Government of India, Ministry of Finance, Department of Revenue (COFEPOSA ACT Section) New Delhi dated 16th Feb. 2001 (Annexure 1 to the petition). The order aforestated has been made by the detaining authority in exercise of powers under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (abbreviated to COFEPOSA ACT) on being satisfied with respect to the petitioner "with a view to preventing him from abetting smuggling of goods as well as engaging in keeping smuggled goods in future", it is necessary to direct the petitioner to be detained and kept in custody in the Central Jail, Meerut.

(2.) Though the grounds of detention have not been filed, it would appear that the impugned detention order has been made in the backdrop of an incident in which two trucks loaded with ball bearing of foreign origin were seized from the premises of M/s Dooab EXIM, Meerut valued at Rs. 3.6 crores (MV) by the D.R.I. on 18/19 July 2000 involving evasion of custom duty to the tune of Rs. 85 lacs. A show cause notice dated 5-6-2001 (Annexure 10) was issued with the prior approval of the Director General Revenue, New Delhi who happens to be the Chief Commissioner of Customs, in terms of Notification No. 30/97-Cus (NT) dated 7-7-97 as amended by the subsequent notification dated 10-10-2000 as per third proviso to Sec.3(1) of the Customs Act, 1962. The show cause notice has been issued under section 124 of the Customs Act, 1962 read with proviso to Sec. 28(1) without prejudice to any other action that may be taken against the notice under the Act or any other law for the time being in force. The petitioner happens to be noticee no. 2. According to the said notice delivery of goods as noted in Entry No. 0026 dated 17-7-2000 was found to be of the value of Rs. 1,52,88,769.00 CIFas against the declared value of Rs.27,61,027.00.

(3.) The order impugned herein has not yet been executed and it being still in embryonic stage, it is intriguing how the petitioner manoeuvred to wangle a Xerox copy of the order for canvassing its validity in the writ petition. However, when the matter came up before a Division Bench of this Court on 10-4-2001, an objection having the complexion of a preliminary objection was raised by Sri Sanjai Kumar Singh, Addl. Standing counsel appearing for Union of India that the petition was not maintainable the impugned order being at pre execution stage. A Division Bench of this Court, taking aid of the decision of the Apex Court in Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia, 1992 Supp (1) SCC 496, held the view that "there cannot be any absolute proposition in law that a person challenging a detention order under the N.S.A. or COFEPOSA ACT must in all cases surrender before he files a petition". After overruling the preliminary objection, the Court directed that "till the next date of listing, the petitioner shall not be arrested in pursuance of the impugned detention order dated 16-2-2001". The Union of India instituted S.L.P. (Crl.) No. 6802/2001 before the Apex Court canvassing the order aforestated. After hearing the counsel for the parties, the Apex Court set aside the order of the High Court and while forbearing from making any observation on the merits of the contention, relegated the matter to the High Court for disposal of the petition within four weeks and providing that in the meantime, appellant therein "will not execute the detention order for a period of four weeks from the date of the order" which was made on Nov. 9, 2001. It was in observance of the said direction given by the Apex Court that an application being Cri. Misc. (Urgency) Application No. 98498 of 2001 was put forth on 24-11-2001 praying therein that the writ petition be disposed of in the week commencing 26th Nov. 2001. The said application was directed to be listed on 28-11-2001 as a First case on the board of the appropriate Bench. The matter, however, came up for hearing by this Bench on 3-12-2001 and 4-12-2001 and Sri A. D. Giri, Senior Advocate appearing for the petitioner and Sri Sanjai Kumar Singh, Addl. Standing Counsel representing the Union of India were heard at prolix length. Learned counsel representing the Union of India, initiated repetition of the preliminary objection raised by him and canvassed that in the fact situation of the instant case, the petition was not maintainable, the detention order having been impugned at pre-execution stage. It has been contended by Sri Sanjai Kumar Singh that a petition challenging preventive detention order can be entertained in exceptional circumstances as laid down by the Apex Court in Alka Subhash Gadia, (supra), but none of the exceptional circumstances in which a petition can be entertained at pre execution stage is intended for application to the facts of the present case.