Adv. with Mr.Aniteja Sharma and Mr. Arijit Singh, Advs v. UNION OF INDIA AND ANR

15. The alleged manipulation and utilisation of licences/scrips is stated to have resulted in a loss to the government exchequer estimated at approximately Rupees 73.55 crores, involving a large number of scrips registered at ICD Tughlakabad.

16. It is in this factual context that the impugned detention order came to be passed, and upon its non-execution, statutory proceedings were initiated against the petitioner.

PRELIMINARY OBJECTIONS OF THE RESPONDENTS:

17. The learned counsel appearing for the respondents opposes the present petition and submits that the same is not maintainable in law, as the petitioner has sought to challenge the detention order dated 02.01.2018 at the pre-execution stage. It is submitted that the settled position of law does not permit a proposed detenue, who has evaded execution of the detention order, to invoke the extraordinary jurisdiction of this Court as a matter of course.

18. It is further submitted by the learned counsel for the respondents that only because execution of the detention order could not be effected, one who is absconding cannot be allowed to take advantage of non-execution of the detention order and challenge the detention. The idea of a preventive detention order is to safeguard, and this Court cannot invoke its Writ jurisdiction in favour of a person who himself is evading the law. Reliance is placed on a judgment of this Court in Mohd. Nashruddin Khan v. Union of India & Ors., 2020: DHC:2742:DB.

19. The learned counsel for the respondents, by placing reliance on a judgment of this Court in Pawan Gupta v. Union of India & Anr., 2024:DHC:7969: DB, submits that a person who has deliberately avoided execution cannot be permitted to invoke the doctrine of snapping of live and proximate link to contend that the order has become stale on account of delay. He further contends that where the delay in execution is attributable to the conduct of the proposed detenue and proceedings under Section 7 of the COFEPOSA Act have been duly initiated, the detention order cannot be assailed at the preexecution stage.

20. By placing reliance on the judgment of the Supreme Court in Subhash Popatlal Dave v. Union of India, (2012) 7 SCC 533, the learned counsel for the respondents contend that a person who has absconded or evaded execution of a detention order cannot be heard to contend that the detention order has become stale on account of delay, as such an argument would amount to permitting the law-breaker to take advantage of his own wrong.

21. The learned counsel for the respondents further submits that the reliance placed by the petitioner on the decision in Additional Secretary to the Govt. of India & Ors. v. Smt. Alka Subhash Gadia & Anr., 1992 SUPP (1) SCC 496 is misplaced. It is urged that while the said judgment recognises limited exceptions permitting preexecution interference, the present case does not fall within any of those narrowly carved exceptions, as the detention order is neither passed for a wrong purpose nor suffers from lack of jurisdiction or non-application of mind.

22. The learned counsel for the respondents further submits that the detention order was passed by the competent authority, namely, the Joint Secretary to the Government of India, duly empowered under Section 3(1) of the COFEPOSA Act, after arriving at a subjective satisfaction on the basis of sufficient and relevant material placed before him by the sponsoring authority. It is contended that the detention order was passed strictly in accordance with law and for the specific purpose of preventing the petitioner from indulging in prejudicial activities affecting the economic security of the country.

23. It is further submitted by the learned counsel for the respondents that the justifiability or sufficiency of the material forming the basis of the detention order, cannot be examined at the pre-execution stage, particularly when the detention order is yet to be served upon the petitioner. It is urged that permitting such a challenge would amount to testing the subjective satisfaction of the detaining authority prematurely, which is impermissible in law.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

24. The learned counsel for the petitioner submits there has been an inordinate delay in the execution of the detention order, as a result of which the order has lost its very purpose as a measure of preventive detention. Further, the respondent authorities have failed to demonstrate what effective and bona fide steps were taken to trace the petitioner and secure execution of the detention order.

25. By placing reliance on decisions in Subhash Popatlal Dave v. Union of India & Anr., (2012) 7 SCC 533; Abhishek Gupta v. Union of India & Ors., 2022: DHC:1963-DB and Alka Subhash Gadia (supra), he contends that the courts have necessary power and have time and again interfered in pre-execution stage of the detention order, where the courts are prima facie satisfied of limited grounds as set out in the above referred judgments. It is submitted by the learned counsel for the petitioner that the present case squarely falls within the recognised exceptions permitting pre-execution interference as laid down, particularly in the view that the impugned detention order does not mention anything about allegation of scrips that is alleged on the petitioner and only mentions that petitioner is prevented from abetting smuggling goods informer.

26. It is contended by the learned counsel for the petitioner that the impugned detention order passed against the petitioner is dated 02.01.2018 and whereas the respondent authorities have filed an application under Section 7(1)(a) of the COFEPOSA Act on 11.09.2018, that is, after a considerable delay of about 9 months and respondent authorities have failed to explain the same.

27. The learned counsel for the petitioner submits that apart from invoking proceedings under Sections 82 and 83 of the Cr.P.C., the respondent authorities failed to take any diligent steps to execute the detention order. Placing reliance on a decision in A. Mohammed Farooq v. Joint Secretary to the Government of India., (2000) 2 SCC 360, it is submitted by the learned counsel for the petitioner that unless the delay in execution is satisfactorily explained, the detention order is liable to be set aside.

28. It is submitted by the learned counsel for the petitioner that in the similar facts arising from this case and similar detention order, one of the co-accused, namely, Farha Hussain, was also served with the detention order. This Court by its judgment in Farha Hussain v. Union of India & Ors., 2018:DHC:3621-DB, had set aside the detention order, observing that respondent authorities had no legal justification in passing the detention order in regard to the acts committed as they do not observe any fraudulent activity which can result into a detention order. He further submits that this Court in Farha Hussain (supra) held that there could be no tampering with the system and as such the allegations against the accused do not hold the ground.

29. The learned counsel for the petitioner reiterates that the detention order is liable to be set aside on account of unexplained delay in its execution, as such delay snaps the live and proximate link between the alleged prejudicial activities and the necessity for preventive detention, thereby converting the detention from preventive to punitive in character.

30. The learned counsel for the petitioner submits that this conduct raises a serious doubt as to whether the respondent authorities were genuinely pursuing execution of the detention order. He submits that the preventive detention is premised on immediacy and urgency, and where the authorities themselves fail to act promptly, the subjective satisfaction underlying the detention order stands vitiated.

31. The learned counsel for the petitioner further submits that the subsequent invocation of Section 7(1)(a) of the COFEPOSA Act, alleging that the petitioner was absconding or concealing himself, was mechanical. It is contended that resort to proclamation proceedings under Sections 82 and 83 of the CrPC, without first exhausting reasonable and effective steps to serve the detention order, is arbitrary and unsustainable in law.

32. The learned counsel for the petitioner contends that the maintainability of a Writ petition challenging a detention order prior to execution or surrender stands settled by the Constitution Bench decision in Alka Subhash Gadia (supra), wherein the Supreme Court held that Article 22 of the Constitution does not restrict the powers of the High Court under Article 226 to judicially review a detention order even at the pre-execution stage.

33. It is further submitted by the learned counsel for the petitioner that, the mere fact that the petitioner has been declared a Proclaimed Offender, does not bar the maintainability of the present Writ petition, as a proclamation order cannot eclipse constitutional remedies where the foundational detention order itself is under challenge. ANALAYSIS/ CONCLUSION

34. We have considered the submissions made by the learned counsels for the parties.

35. The issue before us is, as to whether we should entertain the present petition, which challenges the impugned order of detention at a pre-execution stage.

36. As far as the jurisdiction of the Court to entertain a challenge to a preventive detention order prior to its execution is concerned, the law is now well settled inasmuch as the Supreme Court has repeatedly held that, though there is no complete bar on the exercise of such jurisdiction, the general principles that govern the exercise of such jurisdiction would still be applicable, including those of self-restraint of a Court to come to the aid of a person who is absconding from the law. In this regard, useful reference may first be made to the judgment of the Supreme Court in Alka Subhash Gadia (supra), wherein the question of law as to whether the detenue or anyone on his behalf is entitled to challenge the detention order without the detenue submitting or surrendering to it and, if so, then what are the grounds on which the detention order can be challenged, was considered. The Supreme Court held that while the High Court under Article 226 of the Constitution of India has the power to test the validity of an order of preventive detention, it must observe certain limitations while exercising such jurisdiction. These limitations are self-imposed as a matter of prudence, propriety, policy, and practice. The Court held as under: -

37. In Subhash Popatlal Dave (supra), the Supreme Court clarified that the five exceptions that had been carved out in the judgment in Alka Subhash Gadia (supra), were not intended to be exclusive as far as the challenge to a detention order at a pre-execution stage is concerned. However, by a ratio of 2:1 (Justice Gyan Sudha Misra and Justice Chelameswar), it was held that though the preventive detention order can be challenged beyond the five grounds which have been enumerated in the case of Alka Subhash Gadia (supra), a detenue who has absconded, cannot be allowed to challenge the said order at the pre-execution stage taking advantage of the long lapse of time for which it remained unexecuted. We may quote from the opinion of Justice Gyan Sudha Misra, as under:-

38. Justice Chelameswar, also held as under:-

19. If a preventive detention order is to be quashed or declared illegal merely on the ground that the order remained unexecuted for a long period without examining the reasons for such non-execution, I am afraid that the legislative intention contained in provisions such as Section 7(b) of the COFEPOSA Act would be rendered wholly nugatory. Parliament declared by such provision that an (recalcitrant) individual against whom an order of preventive detention is issued is under legal obligation to appear before the notified authority once a notification contemplated under Section 7(b) of COFEPOSA Act is issued. We have already noticed that failure to appear without a reasonable excuse would be an offence and render the defaulter liable for a punishment of imprisonment. Holding that the preventive detention orders are themselves rendered illegal, on the basis of the live nexus theory (which, in my opinion, is valid only for examining the legality of the order, viz-a-viz the date on which the order is passed would not only exonerate the person from the preventive detention order but also result in granting impunity to such person from the subsequent offence committed by him under the provisions such as Section 7(b) of the COFEPOSA Act. xxx

23. Therefore, 1 am of the opinion that those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law. xxx

27. The question whether the five circumstances specified in Alka Subhash Gadia case (supra) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive.[4] But that does not persuade me to hold that such a scrutiny ought-to be undertaken with reference to the cases of those who evaded the process of law.”

39. This Court in Pawan Gupta (supra), considering the above judgment and the judgment of the Division Bench of this Court in Mohd. Nashruddin Khan (supra), refused to exercise its jurisdiction under Article 226 of the Constitution of India, in favour of the petitioner therein who had also been declared as an absconder.

40. From the above, it can be gathered that while an order of preventive detention can be challenged at a pre-execution stage, the Court in its discretion can refuse to exercise its jurisdiction under Article 226 of the Constitution of India in favour of a detenue who is absconding from law.

41. In the present case, the respondents have asserted that the petitioner was declared a Proclaimed Offender vide order dated 04.05.2017 passed by the learned ACMM, Patiala House Courts, New Delhi and a Look Out circular dated 12.10.2017 had also been issued against him. As the petitioner could still not be traced even after the issuance of the Impugned Order, proceedings under Section 7(1)(a) of the COFEPOSA Act were initiated, and by an order dated 12.12.2019, the petitioner was again declared as a Proclaimed Offender. The whereabouts of the petitioner are still not known and he has not surrendered to the law.

42. We must herein note that, merely because a similar detention order passed against a co-accused, namely, Farha Hussain, has been quashed by this Court, the same cannot be used to invoke our jurisdiction under Article 226 of the Constitution of India, by a petitioner who is absconding from law. We must also note that the order of preventive detention in the case of Farha Hussain was quashed on its peculiar facts, including the finding of the Court that the submissions of the respondents that the detenue therein was deliberately avoiding summons, thereby making it necessary to issue an order of preventive detention, were entirely without basis. The same cannot be said in the present case.

43. For the reasons stated hereinabove, we refuse to exercise our jurisdiction under Article 226 of the Constitution of India at a preexecution stage. We, however, keep it open to the petitioner to challenge the Impugned Order in accordance with law after he has surrendered to the same.

44. The petition is, accordingly, dismissed.

45. There shall be no order as to costs.

NAVIN CHAWLA, J. RAVINDER DUDEJA, J. FEBRUARY 27, 2026/rv/pb