Thottathil B.Radhakrishnan, J. 1. This writ petition is filed by a person facing detention order under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, “COFEPOSA Act”, for short. The challenge is extended at the pre-execution stage.
2. Relying on the bail orders issued by the jurisdictional criminal court, it is argued that there is really no ground to detain the petitioner under COFEPOSA Act. It is argued that there is no ground to detain the petitioner, and therefore, the detention order is liable to be quashed. However, the petitioner has not been served with the grounds of detention inasmuch as the detention order has not been executed. In terms of Article 22(5) of the Constitution of India, the constitutional requirement is that the detenu is served with the grounds of detention along with the detention order when such detention order is executed.
3. It is argued by the learned senior counsel for the petitioner that the detaining authority has no right to deny the proposed detenu, the opportunity to see the order of detention and the grounds on which that order is being made. He argued that the eligibility to get the grounds of detention and a copy of the order of detention cannot be limited to be available only from the actual execution of the detention order.
4. Per contra, the learned public prosecutor argued that in terms of Article 22(5) of the Constitution of India, the requirement is that the grounds of detention be made known to the detenu, while a preventive detention order is executed, and the materials relied on by the detaining authority to reach the grounds of detention should also be served along with that detention order. He, therefore, says that there is no other enabling provision, either in the Constitution of India or in any of the preventive detention laws in India, including in the COFEPOSA Act, which enables a person, who is a proposed detenu, to get a copy of the detention order or the grounds of detention before the detention order is actually executed.
5. It appears that certain issues of importance arise for consideration on the basis of the submissions across the bar on the legal issues arising in this case. We may enumerate them as follows:
i) Does the detaining authority have the right to deny the proposed detenu the order of detention and the grounds on which the said order has been made until the detention order is actually executed?
ii) What are the grounds available to challenge a preventive detention order at the pre-execution stage?
iii) In the course of the challenge to the detention order at the pre-execution stage, will it be open to the High Court to direct the detaining authority to disclose the order of detention and the grounds therefor and thereby open up the scope of the attack to be enlarged to other grounds as well?
6. Assimilating the different submissions made by the learned senior counsel appearing for the petitioner, the learned public prosecutor and the learned Additional State public prosecutor, it appears that the issue as to whether the detenu has to actually suffer the enforcement of the detention order, to be given copy of the detention order and also the grounds of detention, is not an issue conclusively decided in the two judgments rendered in relation to Subhash Popatlal Dave v. Union of India [(2012) 7 SCC 533] and Subhash Popatlal Dave v. Union of India [(2014) 1 SCC 280], and in the case of Gimik Piotr v. State of Tamilnadu and others [2010 KHC 6043] as well as Additional Secretary to the Government of India and others v. Alka Subhash Gadia and another [1992 Supp (1) SCC 496] and Deepak Bajaj v. State of Maharashtra and another [2009 KHC 4327]. We think that the submission of the learned Additional State public prosecutor that the clear content of Article 22(5) of the Constitution of India includes an embargo to the detaining authority issuing the detention order and grounds of detention at any point of time before the actual execution of the detention order, requires deeper consideration. This cannot be concluded merely because in one of the judgments referred to above, the Apex Court has held that one cannot utilise the provisions of the Right to Information Act, 2005 to access such information. The contextual content of Article 22(5) of the Constitution of India and the guarantee extended to the detenu thereby, have to be considered from different angles.
7. Obviously, without a copy of the detention order and the grounds of detention being served on the proposed detenu, it would be inconceivable that we should proceed to hear the matter on grounds as to the contents of the detention order or its grounds. The question as to whether there is due and fair application of mind by the detaining authority on the proposal of the sponsoring authority is also an issue that would fall within this class of arguments.
8. However, in the case in hand, going by the counter affidavit of respondent Nos.2 & 3, it is seen that the petitioner is alleged to have violated the bail conditions imposed by the criminal court inasmuch as he is not reporting to the investigating officer as stipulated in the bail order. It also appears to those respondents that the petitioner has left the State of Kerala in violation of the bail conditions and is still involved in smuggling activities from outside the State. Under these circumstances, we think that the writ jurisdiction cannot be exercised in favour of the petitioner, who admittedly is not undergoing detention, even under the provisions of the COFEPOSA Act, though an order of preventive detention has been passed against him under that Act. For this reason, the petitioner is not entitled to any relief in the discretionary writ jurisdiction.
9. It is clarified that we have not expressed any decision on the legal issues raised in relation to Article 22(5) of the Constitution of India, the provisions of the COFEPOSA Act, the Customs Act and other aspects of the preventive detention order.
In the result, this writ petition is dismissed.
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) (BABU MATHEW P. JOSEPH, JUDGE) jg