N K BAPNA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal and the were heard together. This is an appeal against the judgment and order dated 12th March, 1992 passed by the Learned Trial judge dismissing the writ application filed by the writ petitioner challenging the validity of an order of detention passed under Section 3 (1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (referred to as COFEPOSA ACT) at the Pre-execution stage on the ground that the case made out by the appellant writ petitioner comes within the scope and ambit of the exceptions laid down by the Supreme Court in the case of the additional Secretary of the Government of India and Ors. vs. Smt. Alka Subhas gadia and Anr. in Criminal Appeal Nos. 440/441 of 1991 dated 20th december, 1990 reported in Judgment To-day, 1991 (1) SC 549. In that judgment the Supreme Court held that "it is not open to challenge the validity of a detention order passed under that Act excepting where the courts are prima facie satisfied - (i) that the impugned order is hot passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv)that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. "

(2.) IN this judgment it was held by the Supreme Court that to the extent reserved by this Judgment the decision of the Supreme Court in S. M. D. Kiran pasha vs. Government of Anhra Pradesh and Ors. , JT 1989 (4) SC 366 and the decisions of All High Cot: which are contrary to and/or inconsistent with the view taken by the Supreme Court in this case, they should be deemed to have been disapproved and over-ruled.

(3.) IN this case no affidavit-in-opposition was filed by the respondents controverting any of the afferents made in the writ application and Mr. Anjan kumar Mukherjee, Learned Advocate appearing on behalf of the respondents at the very outset stated that the respondents have taken a policy decision for not filing any affidavit in any writ application which is moved challenging the validity of a detention order under the COFEPOSA Act and as such the statements and/or allegations made in the petition had not been controverted by filing any affidavit by the Respondents.