19 Jun 2121

The order of detention cannot be dismissed only because the live link between the prejudicial acts and the purpose of custody has been severed due to the passage of time - Bombay High Court

Case : Karnaram Lumbaji Choudhary v. Union of India and Ors. Criminal Writ Petition No. 1623 of 2021

Court : Bombay High Court

Bench : Justice S. S. Shinde and Justice N. J. Jamadar

Decided on : 19 Jun 2121

The Relevant Statutes

Article 226 of the Constitution of India

Section 3(1), 7, 7(b), 7(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Section 82 of Criminal Procedure Code, 1973

Brief Facts & Procedural History

1. At the Mumbai Port, it was discovered that 38 kg of foreign marked gold worth Rs.11.71 crore had been unlawfully trafficked. The people were involved with M/s. Al Rehman Impex, the Clearing House Agents, were detained. During the inquiry, it was discovered that the petitioner was the primary controlling person of M/s. Rajeshwar Bullion Trading, which was engaged in gold smuggling. The petitioner made a statement that was damning. The petitioner was apprehended. The petitioner was granted bail and freed.

2. A detention order was eventually issued against the petitioner. Gulabidevi, the petitioner's wife, filed a Writ Petition in the Supreme Court of India, questioning the legitimacy and validity of the detention order. The writ petition was rejected as withdrawn by the Honorable Supreme Court of India. Following that, the petitioner filed a Writ Petition (Criminal) before the Delhi High Court, challenging the same detention decision. The writ case was likewise dismissed as withdrawn by order of the Delhi High Court.

3. The petitioner has again invoked the Honourable Supreme Court of India's writ jurisdiction, claiming that the impugned detention order is illegal because it is based on irrelevant and extraneous material and was issued for a wrongful purpose, and thus falls within clauses (iii) and (iv) of paragraph 30 of the Supreme Court's judgement in the case of Additional Secretary to the Government of India and Ors. Vs. Alka Subhash Gadia and Ors. 1992 Supp (1) SCC 496. The primary challenge to the detention order is that the living link between the order of detention and the purpose for which the petitioner is ordered to be held has now broken due to the passage of time from the date of the impugned order.

The Issue(s) of the Case

Whether the impugned order of detention, dated 8th March 2018, passed by the Joint Secretary, Government of India valid?

The Observations of the Court/Commission

1. Referring to the case of Subhash Popatlal Dave Vs. Union of India (2014) (1) SCC 280 (Subhash-II), the same Bench that had rendered the judgement in Subhash-I considered whether the proposed detainee who had absconded or evaded the execution of the detention order and challenged the order of his detention even at the pre-execution stage after a long time could take advantage of non-execution and challenge the detention order that remained unexecuted could take advantage of non-execution and challenge the detention order that remained unexecuted. The majority of decisions held that the detention order could not be set aside since it could not be carried out, particularly where the intended detainee was avoiding the detention order and engaging in forum shopping.

2. Referring to the case of Union of India & Ors. Vs. Arvind Shergill & Anr. (2000) 7 SCC 601, the Honourable Supreme Court of India, where an interim injunction not to carry out the detention order was obtained, and after that, a claim was made that the live link had been severed due to the passage of time.

3. Referring to the case of Hare Ram Pandey Vs. State of Bihar and Others (2004) 3 SCC 289, the petitioner took every attempt to prevent the detention order from being carried out. In this context, the Honourable Supreme Court dismissed the appeal on the grounds of delay. The observations in paragraph No. 4 are more closely related to the circumstances of the case.

4. The Honourable High Court of Judicature at Bombay observes that to agree with the petitioner's assertion that the respondents failed to make diligent and serious attempts to carry out the contested order. Following the Delhi High Court's denial of the writ petition, the respondents quickly petitioned the jurisdictional Magistrate for the issuance of a proclamation, according to the evidence. A proclamation was issued declaring the petitioner an absconder. The fact that an ad-interim order was in effect against the respondents for about 15 months cannot be overlooked. It would be risky to conclude that the respondents did not attempt to carry out the contested order.

5. The Honourable High Court of Judicature at Bombay also observes that the petitioner's claim that no prejudicial action has been imputed to him in the meantime does not help the petitioner's case. The detention order was issued by the Competent Authority on the basis that the petitioner was the main actor in the gold smuggling. The petitioner has made himself scarce and is attempting to remain undetected. As a result, there is no way to say that the link between prejudiced conduct and the purpose of imprisonment has been broken.

6. Referring to the case of Maqsood Yusuf Merchant Vs. Union of India & Anr. (2008) 16 SCC 31, the dispute was settled in this case by an order issued by the Settlement Authority. Taking notice of the aforementioned situation, the Supreme Court awarded relief to the petitioner, notwithstanding the six-year wait. As a result, the decision in the case is easily discernible.

The Decision Held by the Court

1. The Honourable High Court of Judicature at Bombay dismissed the petition because there is no longer a living relationship between the prejudiced acts and the purpose of detention, The Honourable High Court of Judicature at Bombay not willing to intervene with the contested order.

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