M.JEYAPAUL, J. - (1.) PETITIONER Ashok Sadarangani, father of Nitesh Sadarangani has filed the present criminal writ petition praying for issuance of an appropriate order quashing the impugned order of detention bearing No.PSA1200/85/SPL3(A) dated 12.3.2001 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (for short 'COFEPOSA') by the 5th and 6th respondents against Nitesh Sadarangani (hereinafter referred to as 'detenu') and to secure his personal liberty in the light of the Constitutional guarantee under Article 21 of the Constitution of India.
(2.) THE brief undisputed facts of the case are as follows. i) On 11/12.10.2000, officers of SIU M&P Wing intercepted and seized the vehicles containing foreign origin goods including cigarettes which was followed by search at various premises and recording of incriminating statements of various individuals including the detenu Nitesh Sadarangani. ii) On 12.10.2000, the detenu and one Amrut Solanki were arrested under Section 104 of the Customs Act, 1962 and were produced before the Magistrate on 13.10.2000. Bail application was allowed. However, the bail order was stayed on the request of the Department. Vide order dated 25.10.2000, bail granted to the detenu was cancelled by the Bombay High Court. iii) On 9.11.2000, the detenu was enlarged on bail by the Sessions Court. iv) On 12.3.2001, the impugned detention order was issued by Joyce Shankaran, Principal Secretary to the Government of Maharashtra, on receipt of proposal from the Customs Authorities on the basis of the aforesaid past conduct with a view to preventing him from smuggling of goods in future. There is no dispute on the fact that till then neither any criminal complaint under Section 135 of the Customs Act, 1962 was filed against the detenu nor was any criminal prosecution sanctioned against him under Section 137 of the Customs Act, 1962. v) On 6.9.2001, action under Section 7 of the COFEPOSA was taken against the detenu and on 28.9.2001, proclamation was issued by the Chief Metropolitan Magistrate. However, the detenu was absconding and evading detention. vi) Vide order dated 11.9.2008, at the pre -execution stage, the petitioner was granted liberty by the Hon'ble Supreme Court to challenge the detention order before the High Court, while dismissing his Writ Petition (Crl.) No.95 of 2008. Therefore, a Criminal Writ Petition 1645 of 2010 was filed before the Bombay High Court challenging the impugned detention order dated 12.3.2001 in which, though, initially vide order dated 17.6.2010, execution of the impugned detention order was stayed by the Bombay High Court, however, vide judgement dated 5.1.2011, the petition was finally dismissed by Bombay High Court. An SLP(Crl.) No.2442 of 2012 was preferred against the said judgement and a Writ Petition(Crl.) 35 of 2011 was also filed before the Hon'ble Supreme Court. Both these petitions were dismissed alongwith a batch of other pre -execution petitions of various proposed detenues vide detailed common judgement dated 16.7.2013, which was extensively referred to by both the sides. vii) The Authorities were thus required to detain the detenu herein and to serve the detention order alongwith the grounds as per the observations contained in the said judgement dated 16.7.2013. viii) Even after the said judgement dated 16.7.2013, no effort was made to serve the detention order. It is to be noted that neither the Sponsoring Authority nor the Detaining Authority even sought cancellation of bail granted to the detenu. ix) Vide order dated 24.7.2013, the Court of Sessions at Mumbai allowed an application of the detenu seeking deletion of condition to surrender his passport in the bailable offence under the Customs Act wherein it was also recorded that inspite of the ample opportunities, the officer of Customs Department had failed to file his report/Say in the application and thus, an order to proceed with the application sans Say (reply) was passed on 20.7.2013 and the applicant was held entitled to retain his passport. Thereafter, the detenu applied before the learned Magistrate concerned seeking permission to travel abroad. Notice of the said application was undisputedly served in the office of the Sponsoring Authority. Learned Magistrate heard the advocates for the detenu as well as the Sponsoring Authority and vide order dated 13.8.2013 was pleased to grant the detenu herein permission to travel abroad for the period from 15.8.2013 to 1.11.2013 vide order dated 13.8.2013. The roznama of the said Court proceedings shows the presence of the detenu herein as well as the officer of the Sponsoring Authority (Investigating Officer) with their respective advocates. It also records that advocate for the Department (Sponsoring Authority) filed Say/reply to the application. x) The Sponsoring Authority or the Detaining Authority did not even challenge these orders which were passed in favour of the detenu after judgement dated 16.7.2013 passed by the Hon'ble Supreme Court. There was no coordination between the Sponsoring Authority, Detaining Authority and the Executing Authority. xi) Thus, even after the said judgement dated 16.7.2013, the detenu was neither detained despite his presence in Court seeking permission to go abroad nor was any effort made thereafter to prevent him from going abroad or to serve upon him the impugned detention order. He was thus permitted to go abroad despite the pendency of the detention order against him which was required to be served upon the detenu even in terms of the judgement dated 16.7.2013. xiii) Representations dated 15.10.2013, 26.11.2013 and 21.1.2014 were made by the detenu from his Pune address after the judgement dated 16.7.2013, which were rejected by the Authorities. There is no reference to any of these representations in the instant petition. However, neither the fate of these representations nor the manner of their consideration is impugned in the instant petition. xiii) Thereafter, the instant writ petition was filed by the petitioner in this Court praying for quashing and setting aside of the impugned detention order dated 12.3.2001 which was yet to be executed; for staying the same in the meantime; for seeking direction to the State of Maharashtra to forthwith consider a fresh representation annexed as Annexure P -11 and for passing any other order for securing the liberty of the detenu. The writ petition was filed relying upon the subsequent orders after judgement dated 16.7.2013 and it was claimed before this Court on the basis thereof that there was absolute casualness and no necessity whatsoever has arisen to detain the detenu. It was also contended that the detenu would be arriving at the Amritsar Airport on 27.1.2014 at 12.55 hours from Doha by Flight No.QR1071 and was apprehending his detention at the Airport or at his residence at Gurgaon within the territorial jurisdiction of this Court. Copies of lease deed dated 9.1.2014 evidencing taking on lease a flat at Gurgaon, ticket dated 22.1.2014 of the detenu evidencing his travel proposal from Doha to Amritsar by Flight QR1071 on 27.1.2014 were annexed with the petition. It was also urged that burden to show that detention of a citizen is or would be in accordance with the procedure established by law has always been placed by the Courts on the public authorities because Article 21 of the Constitution of India provides in clear and unambiguous terms that no one shall be detained except in accordance with the procedure established by law and the Courts have always regarded the personal liberty as the most precious possession of mankind and refused to tolerate illegal detention.
(3.) NOTICE was issued vide order dated 24.1.2014 and this Court stayed the execution of the impugned detention order till 17.2.2014. When the matter was taken up on 17.2.2014, learned advocate appearing for respondent No.5 sought time to file reply and hence the matter was posted for 24.2.2014, on which date again a short adjournment was granted and the matter was posted for 28.2.2014 and then for 5.3.2014. Mr. H.S.Deol, learned Advocate who had earlier filed memo of appearance alongwith Mr.Mansur Ali, learned Advocate, submitted that he had no instructions from respondents No.5 & 6 and as a consequence none appeared on their behalf. The matter was thus finally posted for 12.3.2014. Learned Sr.Advocate Mr.R.S.Rai alongwith learned Advocate Ms.Ashima Mor appeared for respondents No.5 & 6 and opposed the petition. A counter affidavit dated 10.3.2014 was also placed on record inadvertently showing the detenu as petitioner in the cause title. Paragraph 6 of the above counter affidavit read as follows: - "6. With reference to the Prayers of petition, the petition may be dismissed on the ground of jurisdiction and stay may be vacated and after execution of detention order, the writ petition may be decided on merit." ;