- (1.) This writ petition is filed by one Smt. Pushpa Kisin Sitlani stated to be residing at 67, Rupam, Worli Sea Phase, Bombay and also at Abardeen Bazar, Port Blair, Andaman and Nicobar Islands under Article 32 of the Constitution of India seeking issue of a writ of mandamus restraining the respondents from executing the order of detention and also to quash the order of detention passed against her under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act). The brief facts of the case which led to the filing of this writ petition may be stated thus: The Joint Secretary to the Government of India, the 2nd respondent herein, in exercise of the powers conferred on him by Section 3(1) of the Act passed the impugned order of detention dated 7.4.1989 with a view to preventing the detenu from acting in any manner prejudicial to the conservation of foreign exchange. The petitioner challenged the validity and legality of this Older of filing a writ petition under Article 226 of the Constitution before the Calcutta High Court on 17.4.1989. That writ petition was ultimately dismissed by the High Court on 1.7.1989 on the ground that it has no territorial jurisdiction.
(2.) Feeling aggrieved by the order of dismissal of the writ petition, the petitioner Fried SLP (Crl.) No.2049 of 1989 along with the present writ petition. When the matter came up for admission, the writ petition was taken on board and the SLP was dismissed since it was not pressed in view of the admission of the writ petition.
(3.) It is brought to our notice that since the detenu was avoiding the execution of the detention order, the 2nd respondent was constrained to pass an order under section 7(1)(b) of the Act on 2.8.1989 by notifying the same in the official gazette directing the detenv to appear before the Commissioner of Police, Bombay within 7 days from the publication of the order under section 7(l)(b). Admittedly, the petitioner has not appeared before the Commissioner of Police, Bombay and still is at large, the petitioner is now challenging the order of detention which is not so far executed by filing this writ petition and on the same time successfully avoiding the execution of the order. A three Judges Bench of this Court examined a similar question in Addl. Secretary to the Govt, of India & Anr. v. Smt. Alka Subhash Gadia & Anr., 1990 (3) Supp SCR 583 and observed thus: "It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary, extraordinary and equitable jurisdiction under Articles 226 and 32 respectively.";