SHARMA, J. - (1.) THIS is a special appeal by Kishori Sharan Garg, under Section 18 of Rajasthan High Court Ordinance, 1949, against the order dated the 25. 02. 1992, passed by a learned Single Judge of this Court in S. B. Civil Writ Petition No. 1199/1992, dismissing the said writ petition.
(2.) KISHORI Sharan Garg (appellant) is a resident of Jaipur City and according to him, since the time of his fore-fathers, he has been carrying on business of manufacturing silver ornaments under the name & style of M/s. Jamnalal Sarraf & Co. , 18-B, Ramganj Bazar, Jaipur, and these days, he deals in silver antique ornaments. According to him, he has nothing to do with any smuggling or any anti-national activity. Hari Narain S/o Phool Chand, according to the appellant, was formerly an employee in the said firm, but he left the service of the said firm in the month of April, 1991. On July 2, 1991, the Custom Authorities seized 10 pieces of gold weighing 1166. 650 gms. , from the possession of Hari Narain, and recorded his statement under Section 108 of the Customs Act. Hari Narain allegedly staled in his statement that the recovered gold was smuggled and his employer, namely, the appellant was engaged in smuggling gold. On that very day, the house & shop of the appellant were searched, but nothing incriminating was found. However, cash amount of Rs. 80,100/- was found in the shop in respect of which, there was corresponding entry in the cash book of the appellant. Apprehending his arrest, the appellant moved an application for pre-arrest bail which was granted by the Sessions Judge, Jaipur City on July 5, 1991. Hari Narain was released on bail on July 3, 1991 by Special Judge, Economic Offences, Jaipur. Thereafter, Hari Narain gave his statement on oath on July 3, 1991, retracting from his previous statement, and stated before the custom authorities that he was no more in the employment of the appellant's firm, and that, the gold seized was not smuggled gold but was his personal property. The appellant states that neither he himself, nor through anybody else, had been engaged in any activity prejudicial to the conservation or augmentation of foreign exchange. However, to his utter dismay and shock, the appellant received authenticated information about passing of detention order against him under Section 3 of the COFEPOSA Act. The order of the appellant's detention has not been served upon him, as yet. The detention order has also been passed against Hari Narain. The appellant challenged the order of his detention as per se arbitrary, illegal, & unconstitutional allegedly having been passed without application of mind and emanates from extraneous, irrelevant & stale considerations on various grounds urged in his writ petition. The appellant prayed a writ of mandamus or any other appropriate writ, order or direction restraining the respondents from proceedings as per in the matter of detention of the appellant u/s. COFEPOSA Act, and further from creating any false evidence to implicate him. His writ petition has been opposed by the respondents. The respondents have stated that the writ petition is pre-mature, as the petitioner has not so far been detained. It has been stated that the statement of Hari Narain was recorded under Section 108 of the Customs Act immediately after seizure of the ten gold pieces in the form of biscuits on July 2, 1991. Hari Narain stated that he was an employee of the appellant who carried on business under the name and style of M/s Jamnalal Sarraf & Company. It has been staled that subsequent statements given in the affidavit by Hari Narain, arc totally contrary to his previous statements. So far as the appellant himself was concerned, he went under ground and did not co-operate in the dention and, therefore, his statement was only completed on August 16, 1991. For ascertaining the purity of gold biscuit from the Mint, the samples thereof were drawn. Hari Narain, after his release on bail, never assisted the investigating agency. After sending the samples to the Mint, its report was awaited which could only be received on February 6, 1992. Meanwhile, the department sponsored proposals, and as the passing of detention order was an act of the State Government, it required consideration/examination of the matter at various levels in the government machinery. Therefore, according to the respondents, there was no inordinate delay in passing the detention order. It has further been pleaded by the respondents that the petitioner- appellant was engaged in smuggling activities prejudicial to the National interest, and the challenge to the order of detention is pre-mature. Reliance was placed upon the decision of the Supreme Court in the Addl. Secretary to the Govt. of India & others Vs. Smt. Alka Subhash Gadia & Anr (1 ). It has also been submitted by the respondents that Hari Narain had categorically stated in his statement under Section 108 of the Customs Act that he was servant of the petitioner, and his statement has been supported by the brother of the appellant, named as Devki Nandan, whose statement was also recorded under Section 108 of the Customs Act. On behalf of the respondent-State Government, also, reliance has been placed upon the aforesaid decision of the Supreme Court. The learned Single Judge held that the High Court has jurisdiction under Article 226 of the Constitution of India to grant relief even in case of detention order at its pre-execution stage, and such orders can be subject matter of judicial review but, it held, while doing so, the High Court has to keep in mind self-imposed restraints. The learned Single Judge examined the case in the light of the proposition of law laid down in Alka Gadia's case (supra), and he referred to the statement made by Hari Narain on July 2, 1991 that he was the employee of M/s Jamnalal Sarraf & Company belonging to the appellant. The learned Single Judge also mentioned that the report of the Mint has been received and that the custom authorities recorded statements of the persons including the appellant and his brother, Devki Nandan. The learned Single Judge also referred to the decision of this Court in Shyam Lal Gupta Vs. State of Rajasthan (S. B. Criminal Revision Petition No. 19/89 decided on August 29, 1990 Per M. B. Sharma, J.), and held that it could not be said that there was no material available as against the appellant. On the question of delay in passing order of detention, the learned Single Judge held that the explanation offered by the respondents could not be construed to be unsatisfactory explanation. In the result, the learned Single Judge did not find any justification for restraining the respondents from passing or executing the order of detention against the appellant.
(3.) LET us at once come to the latest decision of the Supreme Court in Alka Gadia's case (supra), wherein the question involved in this case was considered. The neat question of law that fell for consideration in Alka Gadia's case (supra) was, whether the detenu or any one on his behalf was entitled to challenge the detention order without the detenu submitting or surrendering to it. As a corollary to this question, the incidental question which was needed to be answered was, whether the detenu or the petitioner on his behalf, as the case may be, was entitled to the detention order and the grounds on which the detention order was made before the detenu submitted to the order. His Lordship, P. B. Sawant, J. , speaking for the Court, slated that it is to be remembered that the Constitution permits both punitive and preventive detention provided it is according to procedure established by law made for the purpose and if both the law and the procedure laid down by it, are valid. According to his Lordship, this is not to say that the jurisdiction of the High Court and the Supreme Court under Article 226 & 32 respectively has no role to play once the detention-punitive or preventive-is shown to have been made under the law so made for the purpose. However, it was pointed out that there are certain limitations which the High Court and the Supreme Court had to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well-known, and are self-imposed as a matter of prudence, propriety, policy and practice. These self-imposed limitations which are normal and well-known in the cases of exercise of extra-ordinary jurisdiction of the High Court & the Supreme Court were enumerated by his Lordship in para 12 of the judgement (1 ). It would be useful to extract below and refer to the observations made by his Lordship in para 28 - ". . . . Howsoever repugnant the notion of preventive detention may be to the champions of individual liberty, it has also to be remembered that the power to make such a law even during peace time has been incorporated in the Constitution by the framers of the Constitution many of whom had tasted the bitter fruits of such detention law during the struggle for freedom. Whatever may, therefore, be one's own notions about the dimensions of individual liberty one must accept the provisions of the Constitution as enacted by the mature vision and seasoned experience of the Constitution-makers. We must also not lose sight of the fact that over the years, by and large, the judiciary has interpreted the Act and the orders made thereunder strictly so as to give to the detenu the benefit of every unexplained error of omission and commission and has either struck down the order, itself, or has held its further operation illegal. " It was urged on behalf of the respondent before the Supreme Court that to deny a right 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. This contention was rejected by his Lordship and while doing so, his Lordship stated that the Courts have over the years evolved certain self-restraints for exercising these powers. These restraints extend to the orders passed and the decisions made under all laws. Secondly, it was stated that if in every case, a detenu is allowed to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, it was not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. We may quote crux of the observations made by his Lordship in para 30 as under: - ". . . The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz. , where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extra-ordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. " ;