JUDGMENT
B.N. Srikrishna, C.J.
1. These two appeals involve the question as to whether the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution, should interfere with a detention order not actually executed and served on the detenu.
2. The facts necessary to appreciate the contentions urged in these two appeals are as under:
3. An order of detention was passed on 23.1.1996 vide, Ext. R2(a), in the following terms:
“Whereas the Government of Kerala is satisfied with respect to the person known as Sri. Ali Mohammed, Akkara House, Palakkapalli, Pookkottoor Panchayat, Velluvambram P.O., Malappuram District that with a view to preventing him from abetting the smuggling of goods, it is necessary to make an order directing that the said person shall be detained.
Now, therefore, in exercise of powers conferred by Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), the Government of Kerala direct that the said Sri. AH Mohammed be detained and kept in custody in the Central Prison, Thiruvananthapuram”.
This order was made by the Commissioner and Secretary to Government (Home) under Section 3(1)(ii) of the COFEPOSA Act upon the subjective satisfaction expressed therein. The petitioner challenged this order by O.P. No. 3092 of 1998 on several grounds including the ground that there was delay, that there was no nexus between certain incidents of smuggling and the order, that the procedural safeguards were not complied with, that there was mala fides and that the detention was on vague allegations for ulterior purposes. The learned Single Judge took notice of the fact that the detention order had not yet been executed and served on the detenu. This fact is apparent from the very first sentence in paragraph 5 of the judgment. In the face of a series of judgments of this Court and the Supreme Court holding that a challenge to a detention order at the pre-execution stage ought not to be entertained, the learned Single Judge accepted as true several of the allegations made in the Original Petition, acceded to the request of the petitioner to call for the relevant files and embarked upon an enquiry which, in our view, was wholly unnecessary, apart from being impermissible. It is unfortunate that the decisions of this Court and of the Supreme Court indicating the jurisdictional limits in such a case were neither brought to the notice of the learned Single Judge, nor adverted to.
4. These two appeals, in our view, can be disposed of on the said ground itself.
5. Section 3 of the COFEPOSA Act empowers certain State authorities, upon being satisfied with respect to any person that it is necessary to detain him to prevent him from acting in a manner prejudicial to the conservation or augmentation of foreign exchange or with a view to prevent him from various nefarious activities enumerated in Clauses (i) to (v) of Sub-section (1) of Section 3, to make an order for detention of such person. This detention order together with the grounds therefor has to be served on the person proposed to be detained expeditiously and within the period provided by the statute. The detenu is entitled to challenge the detention order on several grounds including infringement of Fundamental rights and infringement of procedural safeguards built in to the provisions of the COFEPOSA Act.
6. On several occasions, the news of the proposed detention order reaches the detenu even before it reaches the authorities who are required to execute it. The detenu, particularly the one under COFEPOSA, being well endowed with vast resources, immediately takes flight to countries which are safe havens. For long period of time he chooses not to set foot on the soil of this country. Thereafter, he files petitions in the court through some convenient person and challenges the order of detention as futile at the end of the lengthy period. Acceding to such petitions would defeat the spirit with which the COFEPOSA Act was enacted. Consequently, the courts have taken a view that no detention order should be permitted to be challenged except after its execution upon the detenu subject to certain limited exceptions.
7. In State of Kerala v. Shantilal Choksi, 1988 (2) KLT 61, a Division Bench of this Court was confronted with the same problem.. There also the detenu was absconding and challenged the unexecuted detention order on several grounds. The Division Bench of this Court relied on a Full Bench decision of the Gujarat High Court in Vedprakash Devkinandan Chiripal and Ors. v. State of Gujarat and Anr. (AIR 1987 Guj. 253), which took the view that, in a case where detention order itself has not been actually served on the petitioner, a petition for the writ of habeas corpus is not maintainable and that a person against whom a detention order is issued cannot ordinarily seek a writ of mandamus in cases where he has not surrendered, nor served with an order of detention and only in exceptional cases, where the detention order itself ex facie appears to be ab initio void, a person against whom order of detention is issued can invoke jurisdiction of the High Court under Article 226 of the Constitution. It was laid down by the Full Bench of the Gujarat High Court that, at the pre-execution stage, when the detention order was challenged, it was not open to the court to call for the grounds of detention and judicially review the same on any available ground. Nor could the Court investigate the facts of the case and look into the grounds at that preliminary stage when the order of detention was challenged even before its execution. This Full Bench judgment of the Gujarat High Court has held the field for a considerable time and has been followed by several High Courts including this Court. Following this judgment, it was held by the Division Bench of this Court in Shantilal Choksi (supra) that the High Court would not interfere in exercise of its powers under Article 226 of the Constitution in a case where the order of detention was not executed and that it was not open to the parties to approach the High Court when the order of detention is not served and given effect to.
8. The locus classicus on the subject is Addl. Secretary, Government of India v. Alka Subhash Gadia (1992 Supp (1) SCC 496). Upon a review of the entire subject, the Supreme Court held in this case that though the Constitution does not place any restriction on the powers of the High Court or the Supreme Court under Articles 226 and 32 respectively, there are certain well known self-imposed limitations which are dictated as a matter of prudence, propriety, policy and practice which have been evolved by judicial decisions and observed over a period of time after considering the nature of right infringed or threatened to be infringed, the scope and object of the legislation or of the order or decision complained of and the need to balance the rights and interests of the individual as against those of the society. After enumerating several instances of such limitations, it was pointed out that though the Court’s powers under Articles 226 and 32 of the Constitution are wide and untrammelled by any external restrictions, the self-imposed restraints, which are equally applicable in cases of challenge to a detention order and had become crystallised as a result of self evolved judicial policy, had to be observed. Particularly in the context of exercising jurisdiction to interfere with a detention order at the pre-execution stage, the Supreme Court was of the view that if such challenges were entertained in every case the very purpose of the order and the law under which it was made would be frustrated since such orders are necessarily in operation for short periods. Based upon all these considerations of judicial policy, the Supreme Court evolved the wholesome principle that as a rule detention orders ought not to be permitted to be challenged at a pre-execution stage except in the following five cases:
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.
It was also pointed out that the refusal by the courts to use their extraordinary 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 was intended to prevent their abuse and the perversion of the law in question. This decision was followed by this Court in Secretary, Home Dept. v. Abdul Azeez (1995 (1) KLT 709). The Division Bench reiterated that the jurisdiction under Article 226 ought not to be exercised to interfere with a detention order before it was served on the detenu unless the case falls within one of the exceptional circumstances as indicated in Alka Subhash Gadia’s case (supra).
9. In Sayed Taker Bawamiya v. Joint Secretary, (2000) 8 SCC 630, the Supreme Court reiterated the principles laid down by Alka Subhash Gadia’s case (supra) and held that the case before them did not fall within any of the exceptional circumstances. In fact it is interesting to note that the contention urged before the Supreme Court was that the order of detention which was passed was ‘vague, extraneous and on irrelevant grounds’. The Supreme Court summarily rejected the argument by observing that .there was no material for making such an averment for the simple reason that the order of detention and the grounds of the order were not placed on record inasmuch as the order has not yet been executed. The petitioner did. not have a copy of the same and therefore, it was not open to the petitioner to contend that the non-existent order was passed on extraneous or on irrelevant grounds.
10. Finally, in Union of India v. Muneesh Suneja, (2001) 3 SCC 92, the principles laid down in Alka Subhash Gadia and Sayed Taher Bawamiya (supra) were reiterated and approved.
11. In the face of this clear position in law, we are surprised that the detention order at Ext. R2(a) was permitted to be challenged by the petitioner without surrendering to it. Not only was the petition entertained, but the difficulty of the absence of the grounds was got over by a direction to the State to produce the grounds (which were yet to be served) along with all relevant files. After going through the files and indulging in an exercise of discovery and inspection, the learned Single Judge came to the conclusion th’at there was justification in the grounds urged in the petition and on that conclusion he quashed the order. To say the least, such an exercise was wholly impermissible and beyond the jurisdiction of the High Court at a pre-execution stage.
12. These two appeals arise from the judgment of the learned Single Judge. W.A. No. 2069 of 1998 is at the instance of Union of India (the sponsoring authority) and W.A. No. 2261 of 1998 is at the instance of the State (the detaining authority).
13. Learned counsel for the detenu, however, strongly urges that the judgment of the learned Single Judge is perfectly justified and sustainable. He contends that detenu’s case falls under exception (iii) pointed out in Alka Subhash Gadia’s case (supra), Exception (iii) laid down in Alka Subhash Gadia’s case (supra), to reiterate, is ‘where an order of detention is challenged on the ground that it is passed on vague, extraneous and irrelevant grounds’. We think it is unnecessary for us to consider the argument. The Supreme Court in paragraph 7 of the judgment in Sayed Taher Bawamiya (supra) has given short shrift to this contention. Says the Supreme Court, “the petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds.” That the petitioner has no access to the grounds unless it has been served on him, nor does he have a right to call upon the State to produce the same, are obvious. We are surprised as to how the learned Single Judge could have, at the instance of a person, who neither had a right to call for the records, nor seek the grounds, directed the State to produce the documents and proceeded to render the judgment as done.
14. We are satisfied that the impugned judgment of the learned Single Judge is erroneous and needs to be interferred with.
In the result, we allow both the appeals and quash the judgment of the learned Single Judge which is appealed against. We also dismiss O.P. No. 3092 of 1998. However, there shall be no order as to costs.