JUDGMENT
Rajiv Sahai Endlaw, J.
1. The Petitioner was employed as Assistant Grade II with the Airport Authority of India (AAI) constituted by an Act of Parliament, to manage Airport and related services including of cargo handling. The Petitioner, between 19th January 1998 to 16th May, 1998 was posted at the Import Counter of the Cargo Terminal at IGI Airport, New Delhi. On 17th June 1998 i.e., after the Petitioner had been transferred from the Import Counter, two consignments of goods imported in the name of Marita Enterprises and S.N. Impex from Hong Kong were seized by the Custom Authorities and were found to contain goods and of the value, otherwise than declared. Investigations revealed receipt by AAI, between December 1997 and 17-06-1998 of 65 other consignments from the same consignor in Hong Kong to different consignees in Delhi. However, the AAI neither had the said consignments nor had any record of delivery thereof. The said 65 consignments had simply disappeared. The role of the Petitioner, while posted at the Import Counter, thus came under suspicion. The case against the Petitioner is that the Petitioner knowingly manipulated the clandestine removal of five out of sixty five consignments from the Air Cargo Complex, IGI Airport, New Delhi by generating Bank Challan -cum- Gate Pass (BCGP) and subsequently cancelling the same and taking advantage of his free access to the cargo terminal by virtue of his employment with AAI.
2. The Petitioner was arrested on 13th August, 1998 and released on bail on 13th October, 1998. The residence of the Petitioner was searched on 14-08-1998 which is claimed to have yielded some documents pertaining to illegal/wrong generation and subsequent cancellation of BCGP with respect to one consignment. A criminal complaint of offence under Sections 132 and 135 (1) (a) of the Customs Act, 1962 was filed against the Petitioner on 11th June, 1999 and cognizance of which has been taken by the ACMM. A penalty of Rs 10 lacs was imposed on the Petitioner under Section 112 (b) of the Customs Act vide adjudication order dated 21st December, 1999. On the proposal of the Customs Department, a detention order dated 4th August, 2000 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act) was passed against the Petitioner and six others, whom the Petitioner is claimed to have abetted. However, the detention order could be executed against one of the said persons only. The Petitioner and the others were successful in evading the service/implementation of the detention order for the last over 7 years.
3. The Petitioner filed criminal writ petition 178/2001 in this Court for quashing and setting aside of the detention order dated 4th August, 2000. The said writ petition was dismissed vide order dated 14th February, 2001 as under:
This petition has been filed at the pre-detention stage. In view of the settled legal position regarding entertainment of petitions at the pre-detention stage, we do not consider this to be a fit case for hearing.
Accordingly this petition is dismissed.
4. The Petitioner preferred a Special Leave Petition to the Hon’ble Supreme Court in which the following order was made on 11th May, 2001:
Prayer for exemption from surrendering is rejected.
Special Leave Petitions are dismissed.
5. The Petitioner preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal against the adjudication order levying penalty of Rs 10 lacs on him. The Tribunal vide order dated 8th October, 2003 allowed the appeal of the Petitioner. The counsel for the Petitioner has placed reliance on para 12 of the order of the Tribunal which is as under:
12. However, we notice that imposition of penalty on Shri Sudhir Malhotra, an employee of AAI is not justified as his alleged acts of omission or commission are not demonstrated to be in any way connected with the missing 65 consignments. We accordingly set aside the penalty imposed on Shri Sudhir Malhotra.
6. The Petitioner made representation dated 11-04-2005 for revocation of the detention order dated 04-08-2000 to Govt. of India and Govt. of N.C.T. Of Delhi, respectively. The said representation was dismissed vide communications dated 12-07-2005 and 26-08-2005.
7. The Petitioner preferred the present writ petition, again, for quashing and setting aside of the detention order dated 4th August, 2000 and in addition the communications dated 12-07-2005 and 26-08-2005 rejecting the representation of the Petitioner. The Petitioner also sought a writ of Mandamus to revoke the detention order under Section 11 of the Act. The senior counsel for the Petitioner submitted that the representation of the Petitioner has been rejected mechanically without giving any reason; that the detention order was liable to be revoked because the Petitioner had been subsequently exonerated by the Tribunal and which order had attained finality, reliance in this regard was placed on Mrs. Lekha Nandakumar v. Jt. Secretary to Govt. of India 2004 Cr. LJ 3797 (Ker); that there was delay in disposal of representation of the Petitioner. It was further submitted that notwithstanding the dismissal of the earlier writ petition challenging the detention order and dismissal of the SLP, the Petitioner was in this petition again entitled to challenge the detention order dated 04-08-2000 on the ground of delay in issuance of the same after 17-06-1998 and inspite of entire investigation being complete on 15-12-1998 on which date show cause notice was issued to the Petitioner. Reliance in this regard was placed upon para 22 of Babu Singh v. State of UP and Srikant v. District Magistrate Bijapur and Ors. (2007) 1 SCC (Criminal) 385, to urge that principles of res judicata and issue estopple are not applicable to matters of preventive detention. It was further argued that with the sheer passage of time and for the reason of Petitioner being no longer in “office”, the detention order had lost its relevance. Reliance was placed on Rajinder Arora v. UOI and Vikas Aggarwal v. UOI (2007) III AD (Crl.) (DHC) 621.
8. The counsel for the Respondents contended that the Petitioner could not urge grounds taken or available at the time of earlier petition; that no ground of delay in disposal of the representation had been pleaded and that the reasons for rejection of the representation were not required to be communicated and were available on file which was offered to the court. In addition, it was argued that grounds of delay in passing of detention order or in execution of same were not available to the Petitioner, the matter being at pre-execution stage. Reliance was placed on UOI v. Vidya Bagaria ; Naresh Kr. Goyal v. UOI and Sayed Taher Bawamiya v. Joint Secretary .
9. We cannot lose sight of the fact that the Apex Court in Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr. 1992 Supplementary (1) SCC 496, while permitting the judicial review at pre-execution / pre-detention stage, has limited the scope thereof to the five grounds mentioned therein. These grounds were in Administration of NCT of Delhi v. Prem Singh 1995 Supp ( 4 ) SCC 252 held to be the only permissible grounds on which at pre-detention stage, the detention order could be quashed. Again, in Subhash Muljimal Gandhi’s case [1994 (5) JT (SC) 858] it was clarified that the other contingencies if any, for quashing the detention order at pre-detention stage must be of the same species as the five grounds aforesaid.
10. We are of the opinion that merely because the Petitioner, while evading detention, applies for revocation under Section 11, would not expand the scope of the judicial review and circumvent the law laid down in Alka Gadia case. The Petitioner can apply for revocation on the same five grounds. This Court at pre-detention stage will only examine whether the case falls in any of the five grounds or species thereof. The reliance on the Division Bench Judgment of Kerala High Court in Lekha Nandakumar case (supra), which was a post-detention matter and in which the detention order was quashed, inter alia, on the ground of delay in disposal of representation and no reason for rejection of representation being given, is misconceived at this stage. If we were to go into the question of whether there was delay in disposal of representation and whether reasons for rejection of representation were required to be furnished or existed or not, we would be expanding the scope of judicial review at pre-detention stage, beyond the scope of five grounds or species thereof laid down by the Apex court. We may also notice that a Division Bench of this Court in Mansukh Chaggan Lal Bhatt v. UOI has held that the order of rejection of representation, which is communicated to the affected party need not contain the reasons for refusing to revoke the detention order, though it is necessary for the concerned Authority to record reasons in its file and which can be seen by the court. The view of the Kerala High Court is thus not the view of this Court.
11. The Full Bench of this Court in Mansukh Chaggan Lal Bhatt v. UOI 1995 Crl. L.J. 1097 has also held that the scope of judicial review at pre-detention stage does not relate to situations where by sheer lapse of time either in serving the detention order or in passing the detention order, the nexus between the grounds and the order breaks down at a later point of time.
12. We thus hold that as long as the service of the detention order is evaded, even if the representation under Section 11 is rejected, the absconder cannot challenge such rejection on grounds other than the five grounds supra or species thereof. The ground of delay in disposal of representation is not available to the Petitioner. Delay, even if any, would not be relevant when the petitioner is not in detention. We otherwise also do not find any inordinate delay.
13. The Division Bench of this Court in Vikas Aggarwal case following Rajender Arora case, inter alia, held that from delay in launching prosecution it may be held that order of detention is passed for extraneous reasons. However, this view is diametrically opposite to the Full Bench Judgment of this Court that the vitiating factors must exist at the time of passing of the detention order with which we are bound and which was not noticed by the Division Bench.
14. Undoubtedly, the Apex court in Rajinder Arora case, at pre-detention stage held that delay in issuing show cause notice and in launching prosecution and even in issuance of detention order attract the Grounds (iii) & (iv) of Alka Gadia case. However, the Apex court in Sayed Taher Bawamiya and Naresh Kumar Goyal and Vidya Bagaria (supra) has held that delay in passing or execution of detention order is not a ground available at pre-detention stage. We are faced with the daunting task of reconciling the said apparent difference in views. With respect, we find that the Judgments in Alka Gadia case, Sayed Taher Bawamiya case and Naresh Kumar Goel case are of the bench of three Hon’ble Judges respectively. The Judgment in Rajinder Arora case is of a bench of two Hon’ble Judges. Further, Rajinder Arora case strikes a note contrary to consistent view otherwise of the Apex court. Rajinder Arora case relies upon TA Abdur Rehman v. State of Kerala which was not a pre-detention case. Rajinder Arora case appears to turn on its own facts of, physical torture of the Petitioner by the authorities and filing of criminal complaint of such torture at the instance of the Petitioner, of no prosecution having been launched against the Petitioner.
15. The Apex Court in UOI v. Amrit Lal Manchanda has laid down that:
15. Cases involving challenges to orders of detention before and after execution of the order stand on different footings. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.
17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
18. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
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Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
16. We, therefore, respectfully take the law, as laid down by the Apex court to be that at pre-detention stage, judicial review on the ground of delay in passing or execution of the detention order being not available.
17. The circumstance of the Tribunal waiving the Penalty imposed by Adjudicating Authority on the Petitioner also being subsequent to the factors existing at the time of passing of the detention order, is not available to the Petitioner at this stage. The senior counsel for Petitioner also attempted to take us to the merits of the detention order particularly since the Petitioner had ceased to occupy the office which he had misused. We may, however, add that when the Apex court in Alka Gadia case has held that at pre-detention stage there is no right even to receive the grounds of detention, consequently, the judicial review on merits of the order cannot be available. The third contingency of Alka Gadia case, namely, “that the order is passed for a wrong purpose” cannot be read as permitting judicial review as to merits of the detention order. If that were to be so, the Apex court would not have held that the scope of judicial review at pre-detention stage is limited. It is significant that the word used is “purpose” and not “reasons”. The ground under third condition is of malafide and is to be established from evidence aliunde, as in Rajinder Arora case, of purpose for detention order being filing of complaint of torture against officials of sponsoring Authority.
18. The exoneration of the petitioner before the Tribunal was the only fresh ground pleaded by the petitioner for revocation of the detention order as well as before this Court. Though, we have already stated that the same being an event subsequent to the passing of the detention order, would not be a ground for challenge to the detention order at the pre-detention stage, we may add that the Apex Court in Alpesh Navinchandra Shah v. State of Maharashtra and Ors. 2007 (1) JCC 843 has held that the admittance of the case and imposition/condensation of fine and/or penalty is the prerogative of the Settlement Commission and the application praying immunity from fine, penalty and prosecution matters pertain to the jurisdiction of the Settlement commission; the revocation of the detention order issued in respect of the detenu is a different issue and not governed by provisions of Section 127 F(2) of the Customs Act. The Apex Court held that the immunity granted by the Settlement commission from fine, penalty and prosecution under the provisions of the Customs Act and IPC have no bearing on the order of detention passed under the COFEPOSA Act. The matters of Settlement Commission and the COFEPOSA are altogether different issues, the orders of the respective authorities should not and cannot be binding or influencing each other. On the same parity, the order of the Tribunal in the present case should not have any bearing on the detention order. Thus, it cannot be said that there is anything blatantly wrong in the communications dated 12th July, 2005 and 26th August, 2005 also challenged in the present petition. The purpose of passing of the detention order is merely to prevent the detenu from continuing his prejudicial activities and has nothing to do with the order of the Tribunal levying or not levying penalty on the petitioner. Though the counsel for the Petitioner did not refer to the judgment of Justice Katju in the Division Bench in the Allahabad High Court in Mukesh Kumar Gupta v. UOI and Ors. 2001 Allahabad Law Journal 1820 but the same was a post detention case and would thus have no relevance at this pre-detention stage.
19. We also do not agree that the principles of res judicata and issue estopple are not applicable. The observations in Babu Singh case are in relation to bail application and Srikant case clearly holds that successive habeas corpus petitions are maintainable on fresh grounds. Without fresh grounds, successive writ petitions would certainly not lie against the detention order and the same would lead to petitions being filed to take a chance every time on change of roster. Neither of the two judgments, relied upon by the Senior counsel for the Petitioner, lay down the law to the said effect. The Petitioner having earlier filed the petition, which was dismissed as aforesaid is not entitled to maintain the present petition against the detention order, save on grounds if any which have become available since the earlier dismissal.
20. The ground of the detention order being bad for the reason of Petitioner having already been transferred from the Import Counter was available to the Petitioner at the time of preferring the earlier writ petition and cannot be urged again.
21. We may also record that we had during the hearing put it to the counsel for the Petitioner that the Petitioner appear before the court to get over the limitations in challenge at pre-execution / pre-detention stage. However, the same was not acceptable to the counsel for the Petitioner.
22. We also cannot forget that as many as 65 import consignments had gone missing in a short span. The same is not possible without the involvement of the officials of the AAI. If the Petitioner, in the short span of his posting at the Import Counter could be involved in it, the formation of a syndicate by the employees of AAI cannot be ruled out. The detention order to break the syndicate / nexus cannot be said to be without any basis. It is significant that out of seven against whom the detention order was issued, with reference to the incident, six including the Petitioner have evaded the detention order till date. We, however, at this stage, refrain from venturing further and clarify that these observations also would not come in the way of the Petitioner in the event of his challenging the detention order at the post detention stage. We have been constrained to make these observations only to meet the argument of the Senior Counsel for the Petitioner that the detention order was bad in view of the Petitioner no longer holding the office by virtue of which he is claimed to have abetted in the smuggling activities.
23. Though we have considered the matter on merits but we find the conduct of the Petitioner even otherwise reprehensible. The Petitioner was employed at a sensitive position and owed a greater degree of duty than an ordinary citizen. The Petitioner ought to have surrendered and then urged whatever grounds are available to him. The Petitioner has made a mockery of the detention order by evading the same for the last more than 7 years. The Petitioner is not entitled to invoke the discretion of writ jurisdiction on this ground also. The Petition is dismissed.