UNION OF INDIA AND ORS. versus VIDYA BAGARIA

Citation: [2004] SUPP. 1 S.C.R. 949 · Decided: 05-05-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

UNION OF INDIA AND ORS. 
v. 
VIDY A BA GARIA 
MAY 5, 2004 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974: 
A 
B 
Section 3(1)-Detention order-High Court quashed detention order C 
before it was actually served and the detenu taken into custody-Correctness 
of-Held: The question of delayed execution of detention order, delay in 
consideration of representation etc. are really hypothetical in nature when the 
order of detention was not executed at all and challenge was sought to be 
made at pre-execution stage-Hence, High Court's order set aside. 
D 
A detention order under Section 3(1) of the Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974, was passed 
in respect of the respondent's husband. Before the order of detention could 
be served on the respondent's husband, the respondent filed a Habeas 
Corpus petition before the High Court for quashing of the order of E 
detention. The appellant raised a preliminary objection regarding the 
maintainability of the writ petition before the order of detention was 
actually served and the detenu taken into custody. However, the High 
Court allowed the writ petition and quashed the order of detention. Hence 
the appeal. 
F 
Allowing the appeal, the Court 
HELD: 1. The questions regarding delayed execution of detention 
order, delay in consideration of the representation and the like are really 
hypothetical in nature when the order of detention has not been executed G 
at all and the detenu has avoided service and incarceration and when 
challenge is sought to be made at pre-execution stage. (954-E) 
Additional Secretary to the Govt. of India v. Smt. Atka Subbash Gadia, 
[1992) Supp. 1 sec 496, Sayed Taher Bawamiya v. Joint Secretary to the 
949 
I{ 
950 
SUPREME COURT REPORTS [2004) SUPP. 1 S.C.R. 
A Govt. of India, [2000] 8 SCC 630, Union of India v. Parasmal Rampuria, 
[1998) 8 SCC 402, Sunil Fulchand Shah v. Union of India, [2000) 3 SCC 
409, Hara Ram Pandey v. State of Bihar, (2003) 10 JT 114 and Union of 
India v. Amritlal Manchanda, [2004) 3 SCC 75, relied on. 
2. The High Court_ does not appear to have considered the case in 
B the background of whether any relief was available to the writ petitioner 
even before the order of detention was executed. Consequently the order 
is liable to be set aside. [955-E-F) 
CRIMINAL APPELLATE JURISDICTfON : Criminal Appeal No. 86 
C of 1999. 
From the Judgment and Order dated 20.2.98 of the Punjab and Haryana 
High Court in Crl. W.P. No. 286 of 1997. 
Anup G. Choudhary, C.V. Subba Rao, B.K. Prasad and V.K. Venna for 
D the Appellant. 
E 
Mahabir Singh, Rakesh Dahiya, Nikhil Jain and M.A. Chinnasamy for 
the Respondent. 
The judgment of the Court was delivered by 
ARIJIT PASAYAT, J. The Union oflndia, Joint Secretary COFEPOSA, 
Commission of Customs-II, Madras and State of Tamil Nadu question the 
legality of the Judgment rendered by a learned Single- Judge of the Punjab 
and Haryana High Court quashing order of detention dated 19.12.95 passed 
in respect of one Ratan Bagaria under Section 3(1) of the Conservation of 
F Foreign Exchange· and Prevention of Smuggling Activities Act, 1974 
(hereinafter referred to as 'the COFEPOSA Act'). Before the order of detention 
could be served on Shri Ratan Bagaria, his wife Smt. Vidya Bagaria, the 
respondent herein, filed Habeas Corpus writ petition under Article 226 of the 
Constitution of India, 1950 (in short '_the Constitution') praying for issuance 
of writ or any other order quashing the·order of detention passed by appellant 
G no.2 herein who was the respondent no.2 in the writ petition. Several grounds 
touching legality of grounds on which the. order of detentfon was passed, 
were raised in the writ petition. The present appellants filed a counter affidavit. 
Primarily an objection was taken regarding the maintainability of the writ 
application before the order of detention was actually served and the detenu 
H taken into custody. The various stands regarding the legality of the grounds 
U.0.1. v. VIDYA BAGARIA [PASAYAT, J.] 
951 
....... 
of detention as have been raised by the writ petitioner, were also refuted and A 
it was submitted that grounds stated were germane and relevant for directing 
detention. The High Court elaborately dealt with the legality of the grounds 
> 
on which the order of detention was founded. But as regards the preliminary 
objection about the m

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