ALPA MITESH KOTHARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged THE unexecuted order of detention dated 31st March 2012 issued under sub-section 1 of section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA Act"). Thus, the challenge in this petition is to the order of preventive detention at pre execution stage. The petitioner is the wife of the prospective detenu. The first submission of the learned counsel for the petitioner is that in view of subsequent decision of the Apex Court in case of Subhash Popoatlal Dave vs. Union of India and another [Writ Petition (Cri.) No. 137 of 2011] decided by the Apex Court on 10th July 2012, the scope of challenge in this petition challenging preventive detention order at pre execution stage is very wide. He submitted that in view of the said decision, the law laid down in case of the Additional Secretary of Government of India Vs. Alka Subhash Gadia, 1992 Supp1 SCC 496 is no longer a good law. He urged that the impugned order of detention is sought to be executed against a wrong person. He urged that it is passed for wrong purpose and that it is passed on vague, extraneous and irrelevant grounds. He urged that prospective detenu was granted bail on 21st November 2011 and till today, nothing adverse has been noticed about him. He pointed out that the passport of the detenu has been returned by the Sponsoring Authority on 17th February 2012. He submitted that a recourse to the regular law can be taken even assuming that prospective detenu has done something wrong. He urged that the detenu refused to pay bribe to the person named in the petition and thereafter the action was initiated. He urged that one Miss Bhavana Bhanushali, a co-passenger of the prospective detenu was also arrested along with the prospective detenu from whom valuable goods have been seized. He urged that no order of detention has been passed against the said co-passenger. He urged that while granting bail on 25th January 2011, the learned Magistrate imposed a condition of the prospective detenu not leaving India without prior permission of the Court. He, therefore, submitted that there is no likelihood of prospective detenu indulging in smuggling. He submitted that a copy of the gate pass of the prospective detenu has not been supplied along with the show cause notice. He, therefore, urged that the impugned order of preventive detention is vitiated. The learned A.P.P produced for perusal of the Court the order of detention. She submitted that no ground for interference at pre execution stage is made out.

(2.) As far as the scope of challenge to the order of detention at pre execution stage is concerned, it will be necessary to refer to what was held in case of Alka Subhash Gadia . The Apex Court held thus:

(3.) In case of Subhash Popatlal Dave after referring to what held in case of Alka Subhash Gadia , in paragraph 26 the Apex Court has held thus: