ANANDA DAMANI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in this application has, inter alia, prayed for issuance of a writ of and/ or in the nature of Mandamus directing the respondents to forebear from giving effect to the purported order dated 5th January, 1995, whereby and whereunder the petitioner was directed to be detained under the provisions of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It is an admitted fact that the petitioner filed an application for self-same reliefs on 7th December, 1995 and by an order dated 8th December, 1995, this Court passed the following order :-

(2.) Mr. Roy, learned Senior Counsel appearing on behalf of the petitioner, submits that the fresh application has been filed keeping in view the subsequent events namely receipt of a ground of detention as also parawise comments of the department to the petitioner's father's representation, from a perusal whereof it would appear that the purported order of detention was passed wholly mala fide as also for a wrong cause. It has been pointed out that a Division Bench of this Court in the case of Narayan Das Bhaiya quashed the selfsame detention order in Criminal Misc. Case No. 1433 of 1995 by a judgment and order dated 4th May, 1995. Mr. Roy further submits that two other orders of detention passed by the detaining authority out of six persons including the petitioner have been quashed. The learned Counsel further submits that there has been an abnormal delay in passing the impugned order of detention and in support of his aforementioned contention, my attention has been drawn to the findings of the Division Bench in Narayan Das Bhaiya's case. Relying upon or on the basis of the decisions of the Supreme Court in the Addl. Secretary to the Govt. of India v. Smt. Alka Subhash Gadia, reported in 1991 Cal Cri LR (SC) 89; Subhas Mujimal Gandhi v. L. Himingliana, reported in (1994) 6 SCC 14 : (1994 AIR SCW 4975) and Kimti Lal Sethi v. Lt. Governor of National Capital Territory of Delhi, reported in 1996 Cal Cri LR (SC) 251 : (1996 Cri LJ 3195), the learned counsel contends that there are enough materials on record to show that the order of detention suffers from legal malice and the same has been passed for a wrong purpose. It was submitted that while passing the order on 8-12-95, despite the fact that this Court directed the respondents to consider the petitioner's representation, but although three representations have been filed, none of them had been taken into consideration. Mr. Chowdhury, learned counsel appearing on behalf of the respondents, however, submits that in view of the earlier order passed by this Court, no interference is necessary inasmuch as there is no fresh cause of action therefor. The learned counsel has pointed out that fresh cause of action, if any, are (1) rejection of representation, and (2) application filed by the respondents under Section 7 of the Act and a notification issued as against the petitioner. Relying on a recent decision of the Bombay High Court in Deepesh Mahesh Zaveri v. Union of India, reported in 1996 Cri LJ 4112, it has been submitted that non-consideration of a representation cannot vitiate the order of detention which is subsequently executed. It has further been stated that the petitioner has not approached this Court with clean hands as he has been absconding all along. The learned Counsel contends that as the order of detention is still subsisting, it cannot be said that any fresh cause of action has arisen in the matter. Mr. Roy very fairly has pointed out that although this Court has the requisite jurisdiction to issue a writ of or in the nature of Mandamus as has been prayed for by the petitioner, the scope of such order is limited. In Subhas Mujimal Gandhi v. Himingliana, (1994 AIR SCW 4975) (supra), the Apex Court relying on its earlier decision in The Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia, (1991 Cal Cri LR (SC) 89) (supra) stated the law thus : -

(3.) In the instant case, as noticed hereinbefore the petitioner has not been apprehended despite the fact that the order of detention has been passed as far back as on 5th January, 1995, and the other persons against whom the order of the same date had been passed, filed representations before the Government of India as also the Advisory Board and when their representations were rejected, they moved this Court for issuance of a writ of habeas corpus which had been allowed. In the instant case. evidently the petitioner could not be arrested and he filed the writ application on the earlier occasion being C. O. 1979 3(W) of 1995, which was disposed of by this Court by an order dated 8-12-1995. Thereafter it appears that notification had been issued in the Official Gazette on 28th Mareh, 1995, in terms of clause (b) of Sub-Section (1) of Section 7 of the said Act, whereby and whereunder the petitioner was directed to appear before the Commissioner of Police, Calcutta within seven days from the date of publication of the said order. As despite the publication of the said notification the petitioner did not appear, an application was filed under Section 7 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which is contained in annexure 'F ' to the writ application. In the said application, an order dated 4-5-96, was issued. It appears that the petitioner had questioned the legality of the said order by filing a criminal revision application and N. K. Batabyal, J., has passed an order dated 6th November, 1996, where by His Lordship was pleased to direct the petitioner to serve copies of the said application upon the respondents and in the meanwhile, stayed all further proceedings in connection with the said case without prejudice to the rights and contentions of the petitioner in other proceedings whether pending or to be contemplated.