JUDGMENT
P.K. Bahri, J.
(1) This petition has been brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking a writ of mandamus or any other appropriate writ for quotient of the detention order dated April 21, 1989 passed by respondents under Section 3(1) read with Section 2(f) of the Cofeposa Act.
(2) The detention order has yet not been executed. In the counter-affidavit filed by Shri A.S.Dagar, Deputy Secretary Home), Delhi Administration, preliminary objections have been raised to the maintainability of the writ petition but surprisingly enough although rule has been issued in this writ petition, yet the counter does not contain the averments opposing the grounds taken in the writ petition challenging the detention order. It has been mentioned in the counter that if the Court so directs the counter can be filed with regard to the merits of the writ petition as well. I do not think that any direction of the Court ii required for filing the counter to the writ on merits. It was incumbent upon the respondents to have filed the complete counter to the writ petition taking whatever pleas, may be on preliminary points or on merits.
(3) It has been pleaded in the counter that petitioner has not come to this Court with capon hands inasmuch as the petitioner had filed a copy of detention order while in fact no such detention order has been made.
(4) The learned counsel for the petitioner has however pointed out that the detention order was not served on the petitioner and it has been clearly averred in Para 5 of the Writ Petition that some police officials had visited his residential place on August 10, 1989 and had informed the family members of the petitioner with regard to the detention order having been passed against the petitioner and. the family members had read and noted down the contents of the detention order shown to them which had been re-produced in copy Annexure ‘P-3′. So, it is argued by the learned counsel for the petitioner that there was no intention of the petitioner to produce any wrong copy of the detention order Along with the petition and in law it was not even required that petitioner should have attached any copy of the detention order Along with the writ petition. At any rate there was no mala fide intention of the petitioner in producing the said copy of the detention order which contained certain wrong facts as petitioner could not have gained anything in any manner by such production of a wrong copy of the detention order. A photo copy of the detention order has been got filed from the respondent and I find that detention order has been passed on April 21, 1989 and in the copy which has been filed Along with the writ petition, only a typographical error has been made with regard to Section 2(f) and in the name of the petitioner. While in the first part of the order, correct name of the petitioner has been mentioned whereas in the latter part of the order,. name of the co-detune has been mentioned’. The learned counsel for the petitioner has pointed out that these are only typographical errors made in the copy of the order produced along with the writ petition and nothing turns on the same I agree with the contentions raised by the learned counsel for the petitioner in this regard.
(5) After all the petitioner could not have gained anything by producing the copy of the detention order which contained some errors. Even if it is to be interred that petitioner had already got the copy of the detention order made against the co-detune and had re-produced the contents in Annexure ‘P-3’ from the said copy of the detention order, even then it cannot be said that petitioner had any intention to mislead this Court or suppress any material facts from this Court so as to draw an inference that petitioner has not come to this Court with clean hands,
(6) The learned counsel for the respondent has then urged that although the detention order has been made in April 1989 still despite efforts being made to arrest the petitioner, the petitioner has been avoiding the arrest and has come to this Court before surrendering himself to the authorities in pursuance to the said detention order. The argument is advanced that in fact as the petitioner has not been detained, the present writ petition seeking writ of mandamus or certiorari is not at all maintainable. There is no merit in this contention because it has been now settled in a recent judgment of the Division Bench of this Court in the case of Naveen Kumar Kaur v. The Administrator, 1989 (3) Delhi Lawyer 344 that even before detention order is executed, the detention order could be challenged and the Court has power to examine the legality of the detention order. The learned counsel for the respondent has cited Ved Prakash v. State of Gujarat, 1987 (1) Crimes 440 wherein Division Bench of the Gujarat High Court has also dealt with this question and has laid down that a detention order could be challenged before the order is executed in case the order is a nullity and such challenge could be entertained only in a very exceptional and rare case.
(7) In the present case it must be pointed out that the detention order of a co-detune based on the similar facts already stand quashed by the judgment of Division Bench noted above. Same grounds have been urged in this writ petition challenging the detention order which were urged by co-detune in his writ petition. So. it cannot be held that in the present case the petition is not maintainable on mere ground that the detention order has not been executed. One of the grounds on which the detention order of the co-detune was quashed is that some material documents containing the pleas of the detenu showing that no offence under the foreign Exchange Regulation Act has been committed were not placed before the detaining authority. Certain traveller cheques found from the person of the petitioner which according to the grounds of detention served on the co-detune indicated that those traveller cheques belonged to the co-detune. The plea of the co-detune was that in fact those cheques did not come within the definition of the Foreign Exchange Regulation Ace and thus no violation of the provisions of Foreign Exchange Regulation Act has been made. Those pleas of the co-detune were not placed before the detaining authority and thus it was held that the detention order suffered from non-application of mind to the vital material. Similar grounds has been urged in the present case. No counter-affidavit has been filed by the respondent in re-butting the said ground. So, far parity of reasons the detention order made against the petitioner also requires to be quashed.
(8) In view of the above discussion I allow the writ petition, make the rule absolute and quash the detention order dated April 21, 1989.
