CHANDRAKANTH H SHAH Vs. UNION OF INDIA

JUDGEMENT

(1.) While there can be no quarrel that this Court has jurisdiction to make an order forbearing the respondents from issuing an order of detention against the petitioner, this is not a case whether this Court would be justified in doing so. The Supreme Court ruling in Additional Secretary to the Government of India v. Alka Sunhash Gadia 1990 (2) Scale 1352 on which reliance has been placed on behalf of the petitioner itself indicates that interference by the Courts at the pre-execution stage is necessarily very limited in scope and number. It has been further held that such power could be exercised where the Court is prima facie satisfied. (i) that the impugned order is not passed under the Act under which it is purported to have been passed; or (ii) that it is sought to be executed against a wrong person; or (iii) that it is based for a wrong purpose; (iv) that it is based on vague, extraneous and irrelevant grounds; or (v) that the authority which passed it had no authority to do so. of these, learned counsel seeks to rely on the fourth item. Considering the materials present before us it cannot, with any justification, be said that the grounds in this case can be said to be vague, extraneous or irrelevant. In his statement under S. 10 of the Foreign Exchange Regulation Act. The present petitioner inter alia stated that he made the payment of Rs. 6,50,000.00 to Sri Siddique of Bombay under instructions of one Sri Shakeerbhai of Dubai. He has also admitted to have paid in a similar fashion a sum of Rs. 6,00,000.00 to an unknown person on the instructions of Sri Shakeerbhai of Dubai. He also admitted to have received a sum of Rs. 12,50,000.00 on the instructions of Sri Shakeerbhai of Dubai after which he made payments to an unknown person and accused No. 1. Further more accused No. 1 has in his own statement, admitted that a sum of Rs. 6,50,000 approximately seized from his person under S. 31 of the Foreign Exchange Regulation Act was received from accused No. 2 (petitioner herein) on the instructions of Sri Shakeerbhai of Dubai. It would not be proper for us to go further into the matter lest any observations made at this stage may prejudice the petitioner's case in further proceedings.

(2.) Learned counsel invited our attention to the observations of the Supreme Court in its ruling supra that the Court's refusal 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 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. In our view, this is precisely a case of the said kind. We refuse to exercise the power not because we do not have the same but because, in our view, on the materials presently before us, the exercise of the said power in favour of the petitioner is not only not justified but would be akin to permitting the petitioner to abuse this Court's jurisdiction in that behalf and the provisions of the law in question.

(3.) In the result this petition fails and the same is dismissed.