ASHOK KUMAR ASHOKI Vs. UNION OF INDIA

JUDGEMENT

(1.) Ashok Kumar alies Ashoki has come to this Court in this petition under Articial 226 of the Constitiution of India fir quashing the detention order/ground of detention passed under Section 3(1) of the Conservation of Foreigin Exchange and Prevention of Smuggling Activities Act, 1947, which order thought passed has not yet been served on the petitioner.

(2.) The petitioner pleaded that his resident house was searched by the Enforcement Directorate, Jalandhar, on April 28, 1992, but no incriminating articles were recovered, Signature if the petitioner were obtained by the officials of the Directorate on some blank paper. He signed those papers while in nervous conditions and under duress as it was giving out that he world otherwise be tortured and harassed. After the search, he was told to visit the officer at Jalandhar on following day i.e. April 29,1992. He complied with those directions and thereafter he was information of his arrest under Section 8 of the Foreign Ex-charge Regulation Act, 1973 and was produced before the CJM Jalandhar, where he applied for bail. This prayer was, however, declined. His prayer for bail made before the Additional Session Judge was, however, allowed bail, the petitioner has not committed any act which may warrant either cancellation of his bail or which may confirm his evading the criminal case. The investigation by the enforcement agency is in progress, but it will take sometime before the investigation is completed. That the petitioner apprehends his detention under Section 3 (1) of the COFEPOSA. The real reason appear to be that since the petitioner had been released on bail, the authorities concerned are making an effort to detain him. The enforcement staff has given him the information that detention for the obvious reason that he has been granted bail by the Court of Additional Session Judge. There is, thus, an extraneous reason for ordering the detention of the petitioner. That the detention is a serious incursion of the liberty of an individual and unless proper mind is applied and also conditionalities as provided by the Constitution are satisfied, the order of dentention would be illegal. The aforesaid circumstance have been issued in a malafide manner just to ensure that the petitioner does not remain on bail for the offence for which he is being proceeded against by the Enforcement Directorate. That it also appears that the order is being passed in a mechanical manner without appreciating the fact. That in view of the observations of the Honble Supreme Court in N.K. Bapna v. Union of India and other1, it is not necessary for the petitioner to wait to till the detention order is served upon him for challenging that order.

(3.) In the return filed, the jurisdiction of the Court has been challenged and the following reply has been filed:The matter regarding jurisdiction of the Court in the cases where persons have not been detained was considered by the Honble Supreme Court of India in the matter of AddI. Secy. to Govt. of India v. Smt. Alka Gadia & Ors. The same question came to be considered again in the matter of N.K. Bapna v. Union of India & Ors. The Honble Supreme Court of India has emphasized that the Courts can interfere at the pre-detention stage in the following type of exceptional cases: (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (U) that it is sought to be executed against a wrong person, (Hi) 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. The discretion is that of the court and the detenu cannot claim it as a matter of right. The detention order has been passed in accordance with the COFEPOSA Act by the authority empowered under it and the law does not envisage the disclosure of the person against whom detention order is passed, prior to the service of the order on the detenu as the so will frustrate the very purpose of the Act. Accordingly in the present case since the person for according, the grounds of detention and detention order cannot be served on the petitioner until he surrenders. Therefore, the case does not come under the jurisdiction of the High Court.