N. KIRUBAKARAN,J.
This writ petition has been filed seeking direction to forbear the respondent from arresting, detaining and executing the detention order issued by the first respondent under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974.
2. The facts of the case are as follows:
The officers of the second respondent searched the business premises of M/s.Hameeda Jewelers at No.146, N.S.C.Bose Road, Chennai-600 079 and the residential premises belonging to the said establishment on 27.6.1994. During the aforesaid search, the officials of the second respondent seized a sum of Rs.3,00,000/- and certain documents. They also searched Mr.J.S.M.Khader Riyas and Mr.M.Mohamed Abdul Khader who are the relatives of the petitioner. At the time of search, the petitioner visited the said shop and the officials of the second respondent took the aforesaid persons alongwith the petitioner and after obtaining incriminate statements from them they were arrested on 28.6.1994. The said officials severely attacked the petitioner to give statement as per their dictation and after three days, the petitioner was produced along with aforesaid two persons before the learned Additional Chief Metropolitan Magistrate, E.O.I., Egmore, Chennai, who remanded them to custody on the allegations that they were involved in the Business namely collecting Dirhams from persons working in Dubi and making compensatory payments in Indian currency to persons residing in India. Bail petition was filed by the petitioner and he was released on bail by the Additional Chief Metropolitan Magistrate on 6.7.1994 subject to certain conditions and the conditions were subsequently relaxed on 21.7.1994. Thereafter all the conditions were completely relaxed on 8.8.1994. Meanwhile the respondent department filed a petition for cancellation of bail before this court and the same was dismissed by an order dated 7.10.1994.
3. The petitioner submitted that he has been residing in his native place, at Keelakarai and doing agricultural work and fish business and maintaining his family. The petitioner has been suffering illness from 1995 and an operation was done in his chest for removal of a cyst. Consequently he was ridden. Apart from that he was taking medical treatment for psychological disorder. Whileso in the last week of April, 2009, the police authorities attached to Superintendent of Police, Ramnad arrested the aforesaid M.Mohamed Abdul Khader and a detention order was issued against him by the first respondent in respect of the aforesaid search and seizure conducted at M/s.Hameeda Jewelers by the second respondent. Similarly a detention order dated 7.10.1994 was said to have been passed against the petitioner also under Section 3(1) of COPEPOSA Act in connection withthe aforesaid search and seizure.
4. Pursuant to the detention order passed in 1994 apprehending the arrest, the petitioner approached this court for the relief as stated above on the following grounds:
1) There is a delay of 15 years in executing the detention order.
2) Live link gets snapped on account of delay in passing the detention order.
3) There is no satisfactory explanation for the delay in execution and the detention order is in-executable.
4) No serious efforts were taken by the authorities to detain the petitioner even though he was residing at his native place.
5) The detention order was passed under the Prevention of Foreign Exchange Regulation Act 1973 which was repealed in 2000 and it was replaced by the Foreign Exchange Management Act 1999 which do not contain any provisions for arrest and all the offences are treated as "Civil Wrong". In view of the change of legal scenario the detention order is invalid.
5. On the other hand, the counter affidavit filed by the first respondent denied all the allegations made in the affidavit filed in support of the writ petition and reiterated that the petitioner involved in "unauthorised transaction in Foreign Exchange" during the period from December, 1993 to 24.6.1994 and received a total amount of Rs.4,03,75,000. It is stated by the respondents that Pursuant to the detention order passed on 7.10.1994, the petitioner was absconding from the known address and therefore the executing authority could not arrest the petitioner as he was absconding from his residence.
6. Preliminary objection is raised with regard to the maintainability of the writ petition at the pre-detention stage. It is stated that the detention order is only to prevent the petitioner's abuse and prevent the illegal activities. It is stated that the detention order cannot be quashed on the ground of delay in executing the said order and that the detention order has been passed under the proper Act, against right person, for right purpose, by duly enforced on the specific ground raised before the authority. Respondents have also urged that the petitioner did not participate in the adjudication for which a show cause notice was issued and that he did not participate in the enquiry nor appeared before the enquiry officer. The complaint filed under Section 56 of FERA Act 1973 in C.C.No.95 of 1995 on the file of the Additional Chief Metropolitan Magistrate, E.O.I, Chennai is pending and the petitioner was declared as proclaimed offenders by order dated 11.5.2004.
7. The respondent further contended that without undergoing the detention order, he cannot seek for the relief as prayed for. It is submitted that the investigation in this case was commenced on 27.6.1994 and after follow up actions, the detention order was passed on 7.10.1994 and as such there was no delay in passing the detention order. The detention order could not be executed due to absconding of accused from his known address. The respondent submitted that by considering the full of facts including the retraction and subjective satisfaction, the detention order was passed against the petitioner. Finally it is submitted that even FERA 1973 was repealed in the year 2000 and replaced by Foreign Exchange Management Act 1999, there is a saving clause in
Section 49 of the Act itself that any action taken under the old Act, would continue and therefore the petitioner cannot escape from the liability in the adjudication proceedings and criminal proceedings initiated by the respondents.
8. Mr.M.Abdul Nazeer, learned counsel for the petitioner submitted that the order was passed as early as on 7.10.1994 and after a long delay of 15 years the detention order is sought to be executed and the delay is fatal to the detention order and that there is no "live link" on account of the delay in passing and executing the detention order. He relied upon the following judgements of the Hon'ble Supreme Court and this court:
1) AIR 1988 SC 225
2) 1992(2) SCC 295
3) 1999(4) SCC 116
4) 1998(8) SCC 343
5) 2000 SCC (Crl.) 411
6) 1988 LW Crl. 47
7) 1991 LW Crl
8) 1990 Law Weekly (Crl.) 188
9. Preliminary issue was raised by the respondent regarding maintainability of writ petition at the pre-detention stage, in view of law laid down by the Hon'ble Supreme Court in Additional Secretary to the Government of India versus. Smt. Alka Subbash Gadia and another reported in 1992 supplementary (1) SCC 496 and in Administration of the NCT Delhi versus Prem Sing reported in 1995 Suppl. (4) SCC 252. It is urged on behalf of the respondents that the detention order is at pre-detention stage and it should not be interfered with except under the following circumstances:
i) that the impugned order is not passed under the Act under which it is purported to have been passed;
ii) that 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.
10. Relying upon the aforesaid judgements Mr.M.Dhandapani learned counsel for the respondents submitted that the detenu must surrender first instead of filing of the writ petition at the pre-execution stage and thereafter it would be open to him to make all permissible legal grounds to challenge the detention order by filing HCP as held in Union of India versus Parasmal Rampuria reported in 1998 8 SCC 402, and In Union of India and others versus Arvind Sherkill and another reported in 2000 7 SCC 601. In those cases it has been held that writ petition challenging the detention order at pre-execution stage cannot be maintained. Similarly in Sayed Taher vs. Bawamiya vs. Joint Secretary to the Governent of India and others reported in 2000 8 SCC 630 the Apex Court upholding the decisions of High Court held that Writ Petition under
Article 226 of the Constitution of India would not be appropriate as the proposed detenu has not surrendered and the detention order has not been served on him. The learned counsel further relied upon another judgement of the Apex Court in Union of India and others versus Muneesh Suneja reported in 2001 (3) SCC 92, wherein the Supreme Court categorically held that in the matter of pre-detention cases interference of this court is not called for except in the circumstances set fourth in Alka Subhash Gadia case. Similar view was also expressed in judgement dated 16.2.2004 passed in Union of India versus Manchanda and others and Union of India versus Varinder Mohan Jain and another. Relying on the above judgements Mr.M.Dhandapani. learned counsel for the respondents strenuously contended that the detention order cannot be quashed at the pre-detention stage itself.
11. Mr.M.Abdul Nazeer, learned counsel for the petitioner answered the points that there was a heavy delay of 15 years, when steps were taken to secure the petitioner and even now the petitioner has not been arrested. The heavy delay is a fatal to the detention and hence the detention order is liable to be quashed even at the pre-detention stage itself. He relied upon a recent judgement of the Hon'ble Supreme Court in Deepak Bajaj vs. State of Maharashtra and another reported in AIR 2009 SC 628. In that case, the detention order dated 22.5.2008 was challenged in pre-detention stage. For entertaining the said writ petition, preliminary objection was raised by the respondents relying upon the decisions rendered in State of Maharashtra versus Bhaurao Punjabrao Gawande reported in AIR 2008 SC 1705 following the decisions in Additional Secretary to the Government of India and others versus Smt. Alka Subhash Gadia and the other decisions in Rajinder Arora vs. Union of India and others reported in 2006 (4) SCC 796 and in Alpesh Navindchandra Shah vs. State of Maharashtra and others reported in 2007 2 SCC 777. After analising the aforesaid judgment, the Supreme Court observed as follows:
"4. We have carefully perused the aforesaid decisions and we are of the opinion that the legal position regarding the power of this court or the High Court to set aside the preventive detention order at the pre-execution stage needs to be further explained "
" 6. We have carefully perused the above observations in Smt. Alka Subhash Gadia's case (supra) and we are of the opinion that the five grounds mentioned therein on which the court can set aside the detention order at the pre execution stage are only illustrative not exhaustive".
12. The learned Judges finally held in para 28 of the judgement as follows:
" 28. Learned counsel for the respondent submitted that a writ of habeaus Corpus lies only when there is illegal detention, and in the present case since the petitioner has not yet been arrested, no writ of habeas corpus can be issued. We regret we cannot agree, and that for two reasons. Firstly
Article 226 and
Article 32 of the Constitution permit the the High Court and the Supreme Court to not only issue the wirts which were traditionally issued by British Courts but these Articles give much wider powers to this court and the High Court. This is because
Article 32 and
Article 22 state that the Supreme Court and High Court can issue writs in the nature of habeas corpus, Mandamus, Cetiorari etc. and they can also issue orders and directions apart from issuing writs. The word 'in the nature of imply that the powers of this court or the High Court are not subject to the traditional restrictions on the powers of British Courts to issue writs. Thus the power of this court and the High Court are much wider than those of the British Courts vide Dwarka Nath vs. Income Tax Officer, Special Circle, D Ward, Kanpur and Anr., AIR 1966 SC 81 (vide para 4), Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. vs. V.R.Rudani & Ors. AIR 1989 SC 1607 (vide paras 16 to 18), etc. Secondly, what the petitioner really prays for is a writ in the natuare of certiorari to quash the impugned detention order and/or a writ in the nature of mandamus for restraining the respondents from arresting him. Hence even if the petitioner is not in detention a writ of certiorari and/or mandamus can issue."
13. Holding maintainability of writ at the pre-detention stage, the Honourable Supreme Court quashed the detention order at the pre-detention stage on the ground that the relevant material was not placed before the Detaining Authority. The learned counsel for the petitioner also relied on the judgements of this court in Md.Ali Jan Sahib vs. State of Tamil Nadu, by Secretary to Government Home Department (Special Cell) Fort St.George, Madras-9 and others reported in 1992 LW (Crl.) 148 and an unreported judgement passed in S.Elango vs. State of Tamilnadu in W.P.No.10722 of 1990 and in Harigopal vs. State of Tamil Nadu and others in W.P.No.5938 of 1990, wherein this court issued writ of mandamus to forbear the respondents from arresting and detaining the detenu therein pursuant to the detention order passed under COFEPOSA Act. Relying upon those judgements and in view of law settled by the Apex Court in Deepak Bajaj v. State of Maharashtra & Anr. reported in AIR 2009 SC 628, learned counsel for the petitioner contended that the writ is maintainable.
14. As far as the maintainability of the writ petition in the pre-detention stage is concerned, it has been settled by the Supreme Court in a recent judgement in Deepak Bajaj v. State of Maharashtra & Anr. reported in AIR 2009 SC 628. In view of the decisions of both Supreme Court as well as this High Court, maintainability of writ petition at pre-detention stage is upheld and the preliminary objections raised by the respondents are hereby rejected.
15. The detention order was passed as early as on 7.10.1994, nearly 15 years ago, and no effective steps have been taken by the respondents in securing the petitioner pursuant to the detention order passed in 1994. The detention order is to prevent a person from abusing and perverting of law. There is no material placed before this court to substantiate that the detenu continues to indulge in the activities for which detention order has been passed. Hence on the ground of delay in securing the petitioner, the writ is found to be maintainable by this court.
16. In T.A.Abdul Rahman versus State of Kerala reported in AIR 1998 SC 225. the detention order was passed on 7.10.1987 and the detenu therein was arrested on 18.1.1988. The detention order passed in the said matter was quashed holding that when there was unsatisfactory and unexplained delay, namely three months, between the date of detention order and the date of securing the detenu, it would cast considerable doubt on the genuineness subjective satisfaction of the detaining authority. He also relied on a judgement passed in K.P.M. Basheer versus State of Karnataka and another reported in 1992 2 SC 295 in which three judges bench of the Apex Court held that delay of more than five months for executing the order vitiated the live and proximate link between the grounds of detention and the purpose of detention snapped on account of the undue and unreasonable delay. The Honourable Supreme Court in Manju Ramesh Nahar and others reported in 1999 (4) SCC 116, quashed the detention order on the ground of delay in execution for more than one year. In the case SMF Sultan Abdul Khader vs. Joint Secretary to Government of India and others reported in 1998 (8) SCC 343, the Apex Court held that the detention order was quashed as it was not executed and there was the delay in detaining the petitioner, as no serious efforts were made by the police authorities to apprehend the petitioner. In A.Mohammed Farook vs. Joint Secretary to the Government of India and others reported in 2000 SCC (Crl.) 411 the detention order was quashed on the ground of 40 days delay in execution of the detention order. Similarly this court in Kanthabai K.K.Dwivedi vs. Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi reported in 1988 Law Weekly (Crl.) 47, quashed the detention order on the ground of delay of one year and 11 months for the arrest of the detenu as it was not properly explained in the counter affidavit. This court in P.K.S Badrudeen versus The Joint Secretary to Government of India, Ministry of Finance, New Delhi and another reported in 1991 Law Weekly (Crl) 373 quashed the detention order as there was a long delay in apprehending the detenu and there was a delay of seven months to arrest the detenu. In Mohamed yousuf versus The State of Tamil Nadu and others reported in 1991 L.W.(Crl.) 80, the detention order was quashed as there was a delay of 7 1 /2 months in executing the detention order. In Abdul @ Nazer @M.Abdu @ M.Abdu Manhammat til versus State of Tamil Nadu reported in 1990 Law Weekly (Crl.) 188 the detention order was quashed on the ground of unexplained delay in arresting the detenu.
17. As rightly pointed out by the learned counsel for the petitioner, it is well settled law that the delay in securing the detenu vitiates the detention order. Here in this case, the delay is not a few days or months but it is a delay of 15 years. The very fact that there was a delay of 15 years would speak that the respondents are not interested in securing the petitioner. There is no explanation in the counter affidavit as to why the petitioner could not be secured. Paragraph 21 of the counter affidavit states as follows:
" 21 (i) .... The delay in execution of the detention order was caused by the petitioner making himself scarce and absconding from known addresses.
..... (ii) There is no delay considering the fact that the detention order could not be executed due to the absconding of the petitioner from his known address."
18. Even as per para 3 of the Additional counter affidavit filed by the second respondent on 17.9.2009, in columns, 31,33,35,60, 61 and 62 it is stated that the petitioner was available at his native place address in 1994 itself. If the respondents got information that the petitioner was available in the native place, the respondents could have exercised their power under the Conservation of Foreign Exchange Regulation Act 1973 and could have arrested the petitioner as there were provisions contained for the arrest in the aforesaid Act. The respondents miserably failed to exercise their powers and that itself would show that there was a lapse on the part of the respondents in securing the petitioner. In the reply affidavit filed by the petitioner it was mentioned in para 5 that the petitioner was not at all absconding but was appearing before the remand court regularly. It is specifically mentioned in para 5 as follows:
" I submit that though the detention order was passed on 7.10.1994, it was not executed when I appeared before the learned Additional Chief Metropolitan Magistrate (EOI), Egmore, Chennai-600 008 on 28.10.1994, 30.10.1994."
19. It is further stated that in the last week of December 1994 a show cause notice was issued by the Special Director and on receipt of the said show cause notice, the petitioner engaged his counsel and filed a detailed reply dated 12.1.1995 denying all the allegations and requested the respondents to drop all further proceedings. In view of the aforesaid contentions made by the petitioner in paragraph 5 of the reply affidavit, it is beyond doubt that no step was taken by the respondent to secure the petitioner eventhough he was very much available in his native place and he appeared before the Remand Court. The details regarding the petitioner's absence, the dates on which the petitioner did not appear before the Trial court were given in in Serial No.41 of the dates and events filed by the respondents. The aforesaid hearing dates on 28.10.94 and 31.10.94 on which dates the petitioner appeared before the trial court were not shown in the dates and events as non-appearance of the petitioner before the trial court. Hence this court comes to the conclusion that inspite of the petitioner's appearance on 28.10.94 and 31.10.94 before the Trial Court, the respondents did not take any steps to secure the detenu. Hence it cannot be said that the petitioner was absconding from his place of residence as contended by the respondent. FERA 1973 repealed only in 2000 and the respondents had power to arrest the accused under the Act. When such is the position there is no explanation as to why the respondents did not exercise their power under the Act and arrest the petitioner.
20. It is seen from the dates and events filed by the respondents in Serial No.47 a reference is made to a letter dated 19.11.2003 which was sent for revocation of the detention order and a report dated 16.3.2005 which was sent regarding the pending un-executed detention orders sent to the Head Office (recommending for revocation) and about the various reports till 5.2.2007. Hence it is deemed that the respondents themselves decided to recoke the detention order. There was a lapse on the part of the respondents in detaining the petitioner and hence based on the settled principles of law, the detention order is liable to be quashed.
21. Learned counsel for the petitioner submitted that the detention order was passed under Section 3(1) of the Conservation of Foreign Exchange and Preventive of Smuggling Activities Act 1974. Foreign Exchange Regulation Act 1973 was repealed in 2000 and it was replaced by Foreign Management Act 1999. The new Act does not have stringent provisions like arrest, grant of bail and sentence. No provision is made for arrest in 1999 Act and the offences have to be treated as civil wrong in view of change of legal scenario. Therefore the learned counsel for the petitioner submitted that the detention order has to be declared invalid and un-executable. Learned counsel for the petitioner further submitted that though Foreign Exchange Regulation Act 1973 got repealed in 2000 by Foreign Management Act 1999, there is a saving clause under
Section 49 of the Act itself that any action in the old Act would continue under repealed Act. C.C.No.95 of 1995 filed under Section 56 of the Act is pending before the competent Court and there is no prohibition with regard to continuation of the said proceedings, whereas the detention order has been passed under Section 3(1) of the Conservation of Foreign Exchange and Preventive of Smuggling Activities Act 1974. In lieu of change of legal Scenario the detention does not survive. For the offence as stated above under the old Act, the Criminal prosecution can continue.
22. Preventive detention order is being passed only to prevent the accused from indulging or continuing to indulge in a prohibited activities as a preventive measure. The detention is without any trial or without any conviction but it is only as a preventive measure. The liberty of persons is precious under the fundamental rights which comes under
Article 21 of the Constitution of India and it should not be transgressed. Moreover the new Act only speaks about the offences which are civil in nature and compoundable. The petitioner might have committed the offences under FERA 1973 for which prosecution has already been launched by the respondents in C.C.No.95 of 1995, where the respondents are at liberty to prove the case against the petitioner and get conviction against him.
23. Learned counsel for the petitioner filed Additional Typed set of papers, wherein it is stated that the other person, M.Mohammed Abdul Kader who was detained in connection with the same search and seizure at M/s.Hameeda Jewelers were detained pursuant to the detention order passed on 20.10.1994 and was executed on 23.4.2009, in respect of M.Mohammed Abdul Kader @ Muzzamil and whose detention order was revoked by the respondents as per reason given by the Advisory Board that there was no sufficient reason for detention of the above said person and he was released in exercise of power conferred under
Section 8 ( f ) of the COFEPOSA Act. Relying upon the said revocation order, learned counsel for the petitioner submitted that when similarly placed persons were released and the detention order was already revoked, the petitioner's detention is also liable to be quashed. He relied upon a judgement of the Supreme Court passed in Alpesh Navinchandra Shah reported in 2007 (1) SCC Crl. 653, wherein the detenu and his brother were detained under the provisions of COFEPOSA Act. The detenu's brother was released on the ground that there was no sufficient cause for detention of the detenu under
Section 3(1) of the Act and the Government accordingly revoked the detention order after considering the report of the Advisory Board. Considering the fact that similarly placed person viz. the detenu's brother was released the detention order was quashed in respect of the other person also. The Supreme Court relied upon a previous judgement in Lal Hari Lal Bhagwati v. CBI reported in 2003 reported in 2003 (5) SCC 257, wherein six out of five detention orders were revoked by the competent authority and in view of that the other detention order passed against the detenu therein was also quashed. Even on this score also, the petitioner is entitled to the relief sought for in this writ petition. Similarly the Honourable Allahabad Court also quashed the detention order as four detentions were already rerevoked by the State Government and the said similar judgement was passed in Wazir Yadav vs. The State of Utrapradesh and others reported in 1993 Crl. L.J. 1220.
24. As stated earlier the preventive detention is only as a preventive measure to restrain the persons from indulging and continuing their prejudicial activities,. The facts of the case would show that except the passing of the detention order in 1994 and there is no allegation against the petitioner that he is continuing to indulge in prejudicial activities. Fifteen years have passed and in these circumstances, this court has to come to the conclusion that the petitioner is not indulging in any activities under the FERA Act. In view of that also the impugned order is liable to be quashed and accordingly quashed.
25. The writ petition is allowed. However there will be no order as to costs.
vk To
1.The Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi.
2.The Deputy Director, Enforcement Directorate, Shastri Bhavan, Chennai 600 006