LAWS(BOM)-2013-9-80

TUSHAR KISHORE TRIVEDI Vs. PRINCIPAL SECRETARY, GOVERNMENT

Decided On September 30, 2013
Tushar Kishore Trivedi Appellant
V/S
Principal Secretary, Government Respondents

JUDGEMENT

(1.) By this petition, under Article 226 of the Constitution of India, the petitioner takes exception to and prays for quashing of the order of detention, passed under the provisions of Section 3(i) of the Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'), by the Principal Secretary i.e. respondent No.1, and further prays that the respondents be restrained from detaining the petitioner. The petition has been filed at the pre-execution stage and the order of detention has not yet been executed.

(2.) At the outset, it would be necessary to advert to the orders passed by the earlier Bench of this Court, after the petition was filed on 30th March, 2011. This Court, on 18th April, 2011, granted time to the learned A.P.P. appearing for respondent No.1 to obtain instructions as to whether an order of detention had been passed and that, if such an order had been passed, the same was to be placed before the Court. Pursuant to the said order, the learned A.P.P. on 19th April, 2011, placed before the Court, the record from the Office of the Secretary, Department of Home, Government of Maharashtra, in which, it was revealed that on 11th February, 2011, an order of detention had been passed against the petitioner. As recorded in the order dated 19th April, 2011, it appears that the said detention order was forwarded by the Secretary, Home Department, Government of Maharashtra, for service on the proposed detenue to the Deputy Commissioner of Police, PCB, CID, Mumbai. The Report of the Deputy Commissioner of Police (Preventive), CB CID, Mumbai dated 14th February, 2004 indicated that the petitioner had absconded. The report indicated that on the website of the Mumbai Police, information about the detention order had already been displayed. It was noted from the file, which was placed before this Court, that a copy of the detention order had not been forwarded to the respondent No.2 for its execution. Accordingly, time was granted to the learned A.P.P. to bring on record the detention order as well as the report of the Deputy Commissioner of Police, PCB, CID, Mumbai. However, no ad-interim relief was granted. On 3rd May, 2011, after service of the affidavit-in-reply by the learned A.P.P. and after hearing the parties, leave to amend the petition forthwith, came to be granted. The order dated 3rd May, 2011, reads thus:

(3.) As far as the maintainability of the Writ Petition before execution of the detention order is concerned, the same is maintainable and is no more res integra. At the outset, we may state that the learned Counsel for the petitioner has contended before us that the case of the petitioner is covered by three out of the five grounds set out in the case of Additional Secretary to the Government of India & Ors. vs. Alka Subhash Gadia & Anr., 1992 Supp1 SCC 496 Therefore, the short question, which arises for consideration in the present petition, is whether the case of the petitioner falls within any of the five grounds carved out, in the case of Alka Gadia's case . Before adverting to the grounds culled out by the petitioner for seeking quashing of the detention order at the pre-execution stage, it would be apposite to set out the five grounds laid down by the Apex Court in Alka Gadia's case , in order to appreciate, whether the case of the petitioner falls within any of the five grounds as stated in Alka Gadia's case . It is held in Alka Gadia's case , that it is only when the Courts are prima facie satisfied, that any of the following five grounds exist, the Courts can interfere. The five grounds are as follows: