B.P.Banerjee, J. - (1.) This is an appeal against an order dated 24th April, 1992 passed by the learned trial Judge in C.O. No. 448(W) of 1990 rejecting the application under Article 226 of the Constitution filed by the appellant-petitioner for cancelling or rescending the order of detention dated 7th February, 1989 passed against the appellant-petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The writ application was filed at pre-execution stage. The only point that was taken in the writ application and before us is that the order of detention was passed on 7th February, 1989 and the writ application was filed before the learned trial Judge on 25th January 1990 whereupon the interim order of injunction was passed by the learned trial Judge. It was submitted that the delay of eleven months in executing the order of detention has invalidated the order of detention as the very purpose for which the order of detention was passed has become infructuous.
(2.) The power of the court to interfere with an order of detention at pre-execution stage has been clearly laid down by the Supreme Court in the case of Additional Secretary to the Government of India & Ors. v. Smt. Alka Subhash Gadia & Anr. reported in JT 1991(1) S.C. 549. In this case the Supreme Court has laid down the grounds on which the power of judicial review could be exercised at pre-execution stage which are as follows : "As regards his last contention viz. that to deny aright to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well-merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question place any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Article 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach my executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. 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 Article 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available." It was also held by the Supreme Court that to the extent provided in this case, the decision of the Supreme Court in S.M.D. Kiran Pasha v. The Government of Andhra Pradesh & Ors. reported in JT. 1989(4) SC 366 and all other decisions of all the High Courts which were contrary to or inconsistent with the view taken by the Supreme Court in this case, should be deemed to have been disapproved and overruled. Mr. Ashok Kumar Ganguly, learned Advocate appearing on behalf of the appellant relied upon several decisions of the Delhi High Court in Sabhash Chander v. Union of India & Ors. reported in Crime 1991(1) 745 ; in the case of Om Prakash v. Administrator & Ors. reported in 1(1992) CCR 734 and in the case of Monoj Kumar, v. Union of India & Ors. reported in 11(1992) CCR 1971 and submitted that the view of the Delhi High Court is consistent even after the decision of the Supreme Court in the case of Additional Secretary to the Government of India & Ors. v. Smt. Atka Subhash Gadia & Anr. (Supra) that the High Court should pass an order for not enforcing the order of detention in case it is found that there was undue and unexplained delay in the matter of execution of detention order by the detaining authority. Mr. Ganguly, learned Advocate also referred to the decision of the Supreme Court in the Case of P.U. Iqbal v. Union of India & Ors. reported in (1992)1 SCC 434 as well as in the case of K.P.M. Basheer v. State of Karnataka & Anr. reported in (1992) 2 SCC 295 wherein it was held that inordinate delay in executing the order of detention makes the detention order bad and invalid. Mr. Anjan Mukherjee, learned Advocate appearing on behalf of the Union of India submitted that the Court's power at pre-execution stage in dealing with detention cases is very much limited to five grounds mentioned that Smt. Alka Gadia's case also lays down the principle that in the rare cases where the detenue, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds mentioned in the said judgment. It was further laid down in this case that the Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenue should fast submit to it and move a petition for Hebeas Corpus. Mr. Mukherjee further referred to the decision of the Supreme Court in the case of State of Tamil Nadu v. B. K. Shamsudeen reported in JT 1992(4) SC 179 wherein the Supreme Court dealing with the question of delay raised in executing the order of detention wherein the Madras High Court passed an order in the nature of Mandamus directing the State of Tamil Nadu to forebear from executing the detention order passed by it, observed "Clearly the present case does not fall within the parameters outlined in the case of Alka Subhash Gadia justifying interference with the detention order at the predetention stage. There is no dispute that the detention order was passed under COFEPOSA, nor that it has sought to be executed against the right person, nor that it had been passed for a wrong purpose, nor that it had been passed on vague, extraneous or irrelevant grounds, nor that, the authority which had passed it had not authority to do so."
(3.) In our view, the decisions of the Supreme Court as referred to above in the case of P. U. Iqbal and K. P. M. Basheer (supra) the decision of the tention was executed and the question was decided on an application for Habeas Corpus. The power of the court to decide the question of validity of the order of detention after its execution is much wider than deciding the scope of validity of the order at pre-execution stage. At the pre-execution stage, in our view, in view of the decision of Supreme Court in the case of State of Tamil Nadu v. P. K. Shamsudeen (supra) clearly lays down that at the pre-execution stage the court can only interfere with an order of detention within the parameters outlined in the case of Smt. Alka Gadia and that the court cannot interfere on any other ground save and except on five specific grounds laid down in Smt. Alka Gadia's case. The decisions of the Allahabad High Court on which reliance was placed by Mr. Ganguly have not considered the principle laid down in Smt. Alka Gadia's case which was reaffirmed by the Supreme Court in the case of State of Tamil Nadu v. P. K. Shamsudeen.;