Muni Lal Vs. Union of India and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - that necessitated the petitioner to be released on bail because of the failure of the authorities to file the chargesheet against the petitioner, on 18-7-1996. even thereafter no order of detention was passed till 4-11-1996. no explanation is forthcoming from the respondents for the delay of six months in passing the order of detention. 2271) wherein it has been observed that the effect of the non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities giving rise in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of sec.order1. in this criminal writ petition the challenge is made to the order of detention dated 4-11-1996 passed by the joint secretary to government of india, ministry of finance department of revenue, new delhi under the customs act. 2. on 17th may, 1996, a truck bearing no. dlitg-3664 was intercepted and it was found that truck contained 87 packets of dalchini, 250 packages of bearings, 8 packages of blankets, 7 packages of halogen lamps and one package of water pump. the said article were recovered and the petitioner, who was present at the place where the truck was parked namely inside aggarwal warehouse, was questioned. according to the petitioner, the statement said to have been voluntarily tendered by him was recorded. further according to him the said statement was the result of the torture and he was falsely implicated in the case and he was arrested on 18-5-1996 and produced before the duty magistrate on 19-5-1996 before whom he said that he did give any voluntary statement and he was forced to give such a statement as alleged by the custom authorities. thereafter he was kept in judicial custody till 18-7-1996. as no challan was filed within a period of 60 days, the petitioner was released on bail from the judicial custody. thereafter the petitioner came to know that a detention order was passed on 4-11-1996 without any justification or reasonable cause. the order of detention was challenged before this court on the following grounds :- (1) that there is an inordinate delay in passing the order of detention thereby rendering it unconstitutional and illegal. (2) that there is also a delay in executing the order. therefore the order of detention is liable to be quashed. 3. it is further contended that there is violation of sec. 3(5) of the customs act inasmuch as the grounds on which the detention order has been passed have not been supplied within three months as required. the delay in this case in passing the order of detention is six months. it has been emphasised in s. k. serajul v. state of west bengal (1975 (2) scc 78) that the order of detention should be passed at the earliest so that link or other words the purpose to stop such a notorious activity estopped. the principle that there should be no delay in passing the order of detention has been reiterated by the apex court in smt. hemlata kantilal shah v. state of maharashtra (air 1982 s.c. 8) (1982 cri. l.j. 150). in shiv ratan makim v. union of india (air 1986 s.c. 610), the supreme court observed that no hard and fast rule can be made, but the order of detention should be passed at the earliest and that there should be reasonable explanation to justify the delay. in yogendra murari v. state of u.p. (air 1988 s.c. 1835) it has been held that the order of detention should be passed without delay. the same view taken again in smt. k. aruna kumari v. govt. of andhra pradesh (1988 (1) s.c.c. 296, 1988 cri. l.j. 411). 4. thus it is obvious that there is no hard and fast rule as to within what time the order of detention shall be passed. but it is clear from the various decisions of the supreme court referred to above that the order of detention should be passed at the earliest and that the delay, if any, should be satisfactorily explained. 5. in the case on hand, the order of detention has been passed after the expiry of six months. the fact remains that the accused was arrested and was produced before the duty magistrate and he was in remand for a period of two months. though the truck in which smuggled articles where found was intercepted on 17-5-1996 the authorities have not filed the chargesheet within the period of allowed under law. that necessitated the petitioner to be released on bail because of the failure of the authorities to file the chargesheet against the petitioner, on 18-7-1996. even thereafter no order of detention was passed till 4-11-1996. no explanation is forthcoming from the respondents for the delay of six months in passing the order of detention. 6. in the circumstances, the irresistible conclusion that one can draw on the facts of the case is that the order is vitiated on the ground of delay in passing the order. 7. it is further to be seen though the order has been passed on 4-11-1996, it has not been executed till december 1998. it is also averred by the petitioner that the order of detention has not been served on him and he came to know about the order of detention since the same was served on other persons who were to be detained along with him. 8. in reply, the respondents 1 and 2 stated that the execution of the order of detention is pending and petitioner has been evading detention. till december 1998 the order of detention has not been executed. except saying that the petitioner is evading the execution of the order of detention, no explanation for the delay in executing the order has been given, in this context, it is useful to refer to the decision of the apex court in manju ramesh nahar v. union of india 1999 (4) scc 116 (1999 cri. l.j. 2271) wherein it has been observed that the effect of the non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities giving rise in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of sec. 3 of cofeposa act and that the execution of the order of detention long after it was passed would have the effect of vitiating the order as also the 'satisfaction' of the authorities who passed that order. 9. except saying that the petitioner was avoiding arrest, no details of any steps to get the order of detention executed have been placed before this court. from a reading of the counter, it is clear that the authorities have not taken any steps even to get the petitioner declared as proclaimed offender. mere a vague allegation that the petitioner was avoiding arrest is not sufficient in view of the decision in manju ramesh nahar's case (supra). 10. in view of the foregoing discussion, the criminal writ petition deserves to be allowed and the order of detention is liable to be quashed. 11. i, accordingly, allow the writ petition and quash the order of detention dated 4-11-1996. 12. petition allowed.

Judgment:
ORDER

1. In this criminal writ petition the challenge is made to the order of detention dated 4-11-1996 passed by the Joint Secretary to Government of India, Ministry of Finance Department of Revenue, New Delhi under the Customs Act.

2. On 17th May, 1996, a truck bearing No. DLITG-3664 was intercepted and it was found that truck contained 87 packets of Dalchini, 250 packages of bearings, 8 packages of blankets, 7 packages of Halogen lamps and one package of water pump. The said article were recovered and the petitioner, who was present at the place where the truck was parked namely inside Aggarwal Warehouse, was questioned. According to the petitioner, the statement said to have been voluntarily tendered by him was recorded. Further according to him the said statement was the result of the torture and he was falsely implicated in the case and he was arrested on 18-5-1996 and produced before the Duty Magistrate on 19-5-1996 before whom he said that he did give any voluntary statement and he was forced to give such a statement as alleged by the Custom authorities. Thereafter he was kept in judicial custody till 18-7-1996. As no challan was filed within a period of 60 days, the petitioner was released on bail from the judicial custody. Thereafter the petitioner came to know that a detention order was passed on 4-11-1996 without any justification or reasonable cause. The order of detention was challenged before this Court on the following grounds :-

(1) That there is an inordinate delay in passing the order of detention thereby rendering it unconstitutional and illegal.

(2) That there is also a delay in executing the order.

Therefore the order of detention is liable to be quashed.

3. It is further contended that there is violation of Sec. 3(5) of the Customs Act inasmuch as the grounds on which the detention order has been passed have not been supplied within three months as required. The delay in this case in passing the order of detention is six months. It has been emphasised in S. K. Serajul v. State of West Bengal (1975 (2) SCC 78) that the order of detention should be passed at the earliest so that link or other words the purpose to stop such a notorious activity estopped. The principle that there should be no delay in passing the order of detention has been reiterated by the Apex Court in Smt. Hemlata Kantilal Shah v. State of Maharashtra (AIR 1982 S.C. 8) (1982 Cri. L.J. 150). In Shiv Ratan Makim v. Union of India (AIR 1986 S.C. 610), the Supreme Court observed that no hard and fast rule can be made, but the order of detention should be passed at the earliest and that there should be reasonable explanation to justify the delay. In Yogendra Murari v. State of U.P. (AIR 1988 S.C. 1835) it has been held that the order of detention should be passed without delay. The same view taken again in Smt. K. Aruna Kumari v. Govt. of Andhra Pradesh (1988 (1) S.C.C. 296, 1988 Cri. L.J. 411).

4. Thus it is obvious that there is no hard and fast rule as to within what time the order of detention shall be passed. But it is clear from the various decisions of the Supreme Court referred to above that the order of detention should be passed at the earliest and that the delay, if any, should be satisfactorily explained.

5. In the case on hand, the order of detention has been passed after the expiry of six months. The fact remains that the accused was arrested and was produced before the Duty Magistrate and he was in remand for a period of two months. Though the truck in which smuggled articles where found was intercepted on 17-5-1996 the authorities have not filed the chargesheet within the period of allowed under law. That necessitated the petitioner to be released on bail because of the failure of the authorities to file the chargesheet against the petitioner, on 18-7-1996. Even thereafter no order of detention was passed till 4-11-1996. No explanation is forthcoming from the respondents for the delay of six months in passing the order of detention.

6. In the circumstances, the irresistible conclusion that one can draw on the facts of the case is that the order is vitiated on the ground of delay in passing the order.

7. It is further to be seen though the order has been passed on 4-11-1996, it has not been executed till December 1998. It is also averred by the petitioner that the order of detention has not been served on him and he came to know about the order of detention since the same was served on other persons who were to be detained along with him.

8. In reply, the respondents 1 and 2 stated that the execution of the order of detention is pending and petitioner has been evading detention. Till December 1998 the order of detention has not been executed. Except saying that the petitioner is evading the execution of the order of detention, no explanation for the delay in executing the order has been given, in this context, it is useful to refer to the decision of the Apex Court in Manju Ramesh Nahar v. Union of India 1999 (4) SCC 116 (1999 Cri. L.J. 2271) wherein it has been observed that the effect of the non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities giving rise in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of Sec. 3 of COFEPOSA Act and that the execution of the order of detention long after it was passed would have the effect of vitiating the order as also the 'satisfaction' of the authorities who passed that order.

9. Except saying that the petitioner was avoiding arrest, no details of any steps to get the order of detention executed have been placed before this Court. From a reading of the counter, it is clear that the authorities have not taken any steps even to get the petitioner declared as proclaimed offender. Mere a vague allegation that the petitioner was avoiding arrest is not sufficient in view of the decision in Manju Ramesh Nahar's case (supra).

10. In view of the foregoing discussion, the criminal writ petition deserves to be allowed and the order of detention is liable to be quashed.

11. I, accordingly, allow the writ petition and quash the order of detention dated 4-11-1996.

12. Petition allowed.