SUBHASH MULJIMAL GANDHI versus L. HIMINGLIANA AND ANR .

Citation: [1994] SUPP. 2 S.C.R. 785 · Decided: 26-08-1994 · Supreme Court of India · Bench: P.B. SAWANT · Disposal: Dismissed

Judgment (excerpt)

SUBHASH MUUIMAL GANDHI 
v. 
L. HIMINGLIANA AND ANR . 
. AUGUST 26, 1994 
(P.B. SAWANT AND M.K. MUKHERJEE, JJ.) 
ConseTVation of Foreign Etchange and Prevention of Smuggling Ac-
tivities Ac• 1974: 
A 
B 
Detenti011 ordei-Challenge at pre-execution stage-When pem1is-
C 
sib/e--Power of court to inteifere with detnetion order prior to execu-
tion-Scope and e:>.1el!t of-Detmtion ordei-De/ay in execution-Effect of 
The respondent passed an order on August 23, 1990 under section 
3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974 to detain the appellant with a view to preventing him D 
from smuggling goods. On getting the information about the making of the 
order the appellant filed a writ petition in the High Court challenging the 
same and it was dismissed. 
In appeal to this Court it was contended on behalf of the appellant E 
that the grounds of detention, and scope of challenging detention order at 
pre-execution stage, given by this Court in Addi. Secretary, Govt. of India 
v. A/ka Subhash Gadia, (1992) Supp. 1 S.C.C. 496 were not exhaustive but 
illnstrative; (ii) that the detention order was passed 'for a wrong purpose', 
namely, to harass and humiliate the appellant by concocting a false case 
F 
of smnggling, based primarily on a confession obtained from him after 
snbjecting to him to assault, illegal detention and extortion; (iii) there was 
abuse of extraordinary constitutional power by the State machinery be-
cause the appellant was not produced before the Magistrate within 24 
hours and (iv) the detention order was passed long back and the maximum 
period of detention which the appellant wonld have undergone i.e. 2 years G 
was long over and therefore his detntion now wonld be pnnitive and not 
preventive. 
Dismissing the appeal, this Court 
HELD : 1. The order of detention is not made for a purpose ex- H 
785 
786 
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R. 
A 
traneous to the provisions of COFEPOSA. The detaining authority has 
denied the allegation of assault and extortion and have stated in their 
affidavit-in-reply that there was no breach of constitutional or legal 
provision as the petitioner was produced before a competent court within 
24 hours of his formal arrest. Needless to say these are disputed questions 
B of fact, which this Court cannot entertain much less delve into or decide 
upon. In any case, the said fact even if true cannot vitiate the order of 
detention. [791-F-C, 792-A] 
2. Even if it is held that the explanation offered by the respondents 
for delayed production is not a satisfactory one and that the Customs 
C Officers have failed to comply with constitutional and statutory requfre-
ments, the order of detention, which has been made by the detaining 
authority on the basis of its satisfaction that the petitioner.was smuggling 
gold, would not be bad on that score. The appellant, however, would be 
certainly entitled to seek appropriate relief by way of compensation or 
D otherwise in case he succeeds in proving that he was wrongfully and 
illegally detained. [791-G-H] 
'E 
3. In Alka Subhash Gadia's case this Court has expressly laid down 
that the grounds of interference with detention orders at pre-execution 
stage have to be limited in scope and number as mentioned therein. 
However, the other contingencies, if any, must be of the same species as of 
the five contingencies referred to therein. [790-F, 791-B] 
Addi. Secy. Govt. of India v. Alka Subhash Gadia, [1992] Supp. 1 
S.C.C. 496 and N.K Bapna v. Union of India, [1992] 3 S.C.C. 512, relied 
F 
on. 
4. It is undonbtedly true that an unusual delay in execution 
of an order of detention if not satisfactorily explained, may persuade the 
Court to draw an inference that the order is punitive and not preventive. 
There is, however, no scope for drawing such an inference in this case as 
G the delay here has been occasione<I not by any omission or commission on 
the part of the detaining authority. On the contrary, it is the appellant who 
has delayed the execution by first moving the High Court and then this 
Court. [792-E] 
H 
Bhawarla/ v. Stale of T.N., (1979] 1 S.C.C. 465, referred to. 
S.M. GANDHI v. L. HIMINGLIANA [M.K. MUKHERJEE, J.] 
787 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A 
540 of 1994. 
From the Judgment and Order dated 1.10.90 of the Bombay High 
Court in W.P. Cr!. No. 1083 of 1990. 
Ram J ethmalani, Ms. Lata krishnamoorthy and Abani Kumar Saha B 
for th

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