Maqsood Yusuf Merchant Vs. Union of India (Uoi) Thru. the Secretary - Court Judgment

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constitution of india, 1950articles 226, 21 and 22 - writ--personal liberty--seeking quash to pre-execution stage of preventive detention order--petitioner claimed the impugned order was passed for a wrong, purpose and was violation of his fundamental rights--court considered that the order has been passed with a view to prevent the petitioner from smuggling goods or abetting the smuggling there of etc.--no merit--hence, writ petition dismissed. - - of india 2002crilj259 ,which is a three-judge bench decision, the five gadia exceptions had been reiterated, namely, that courts would be empowered to interfere with detention orders at the pre-execution stage only if they 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. 7. it seems to us that this preliminary objection is not well-founded. it does not logically follow, however, that if a part of the cause of action arises within the territories over which that high court holds sway, it must exercise that power rather than directing the petitioner to seek his remedy in any other high court which is better suited to exercise jurisdiction for the reason that the predominant, substantial or significant part of the cause of action arises in that court. the rationale of section 20 of the code of civil procedure would, thereforee, also apply to article 226(2). these considerations are aptly encapsulated in the term forum conveniens which refers to the situs where the legal action be most appropriately brought, considering the best interests of the parties and the public (see black's law dictionary). the writ court should invariably satisfy itself that its choosing is not malafide or an example of forum shopping. yusuf dhanani, he endorsed blank bills of lading; state of maharashtra (2007)2scc777 the petitioner had been granted immunity from any penalty that could be levied under the customs act and also from the prosecution under the customs act, as well as under indian penal code, in terms of sub-section (1) of section 127h of the customs act. the factual matrix in the present petition and alpesh as well as bhartiya is not similar. we may only emphasise that their lordships had conceptualised a situation where despite the conclusive orders of the settlement commission passing of detention orders could well be in consonance with law depending on the facts of each case. ..the legislature clearly intended that the cr. the ratio in kailash sharma's case 1973 cri lj 1021 is not good at law. an offence is committed when all the ingredients are satisfied. according to him, the first facet is that the petitioner had enjoyed an enviable and unblemished reputation as a businessman and a highly respected position in society prior to these incidents. in our opinion it is quite possible that previous illegal transactions and imports may well have gone undetected. jain's argument is that this failure brings the case within the third gadia exceptions, namely, passing of the detention order for the wrong purpose. most importantly, this very question had been raised, without success, in bawamiya.vikramajit sen, j.1. the feature at the fulcrum of the friction before us pertains to the parameters within which the writ court can provide its protection to the petitioners at the pre-execution stage of preventive detention orders passed against them. the law on this subject was crystalized and enunciated in the decision of a three-judge bench of supreme court in addl. secy. to the govt. of india v. alka subhash gadia : 1991(53)elt481(sc) which has been followed in almost all subsequent cases. the only exception that we have come across is union of india v. parasmal rampuria : (1998)8scc402 in which their lordships held that the petitioner must surrender before he can be heard in his challenge to the legality of the detention order; significantly, gadia was not cited before their lordships. in sayed taher bawamiya v. joint secretary to the govt. of india : 2002crilj259 , which is a three-judge bench decision, the five gadia exceptions had been reiterated, namely, that courts would be empowered to interfere with detention orders at the pre-execution stage only if they 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. their lordships categorically rejected the argument that these five exceptions are not exhaustive. both these cases were taken note of in union of india v. amrit lal manchanda : 2004crilj1426 which is one of the decisions to which our attention has been drawn by ms. babbar, learned counsel for the respondents. 2. similar observations can be found in union of india v. vidya bagaria : 2004crilj2480 and union of india v. chaya ghoshal : 2005(98)ecc1 in which their lordships inter alias observed as follows:9. the constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of state's security, public order, disruption of national economic discipline, etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. in icchu devi choraria v. union of india : [1981]1scr640 this judicial commitment was highlighted in the following words: the court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. this is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention.... 13. so far as the pivotal question whether there was delay in disposal of the representation is concerned, same has to be considered in the background of article 22(5) of the constitution. a constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against detention, as imperated in article 22(5) of the constitution. it also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition. the representation is to be considered in its right perspective keeping in view the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under article 22(5) invalidates the detention order. personal liberty protected under article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. the stringency and concern of the judicial vigilance that is needed was aptly described in the following words in thomas pacham dales' case 1881 (6) qbd 376: then comes the question upon the habeas corpus. it is a general rule, which has always been acted upon by the courts of england, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue. 3. the same five tests, imperative or exceptions of gadia have also been reiterated in naresh kumar goyal v. union of india : 2005crilj4539 delivered by a three-judge bench. the argument predicated on the order of detention having been passed belatedly was repulsed, as was the contention that it was passed for the wrong purpose. the court observed that since the case did not fall within any of the exceptions enumerated in gadia, the high court was justified in declining to exercise powers under article 226 of the constitution to quash the order of detention at the pre-arrest stage. the following passage thereof is reproduced for facility of reference:14. coming to the facts of this case, at the highest the case of the appellant is that the order of detention was belatedly passed and the state of bihar thereafter took no steps whatsoever to implement the order of detention. counsel for the appellant sought to bring this case under the third exception enumerated in alka subhash gadia, namely, that the order was passed for a wrong purpose. in the facts and circumstances of this case, it is not possible to accept the submission that the order was passed for a wrong purpose. apparently the order has been passed with a view to prevent the appellant from smuggling goods or abetting the smuggling thereof etc. the facts of the present case are no different from the facts in muneesh suneja. we do not find that the case falls within any of the exceptions enumerated in alka subhash gadia. the high court was, thereforee, justified in refusing to exercise jurisdiction under article 226 of the constitution of india to quash the order of detention at the pre-arrest stage. this appeal is, thereforee, devoid of merit and is dismissed.4. mr. sanjay jain, learned senior counsel appearing on behalf of one of the petitioners in this batch of petitions, has laid great store on rajinder arora v. union of india : 2006crilj2102 delivered by a two-judge bench. inasmuch as this decision may appear to speak differently to gadia, bawamiya, amrit lal manchanda, vidya bagaria and chaya ghoshal, it was obviously restricted to the facts of that case. it needs to be further noted that both t.a. abdul rahman v. state of kerala : 1990crilj578 and k.s. nagamuthu v. state of t.n. (2006) 4 scc 792 which find mention in rajinder arora had not been initiated at the pre-execution stage of the preventive detention order that had been assailed. 5. in view of this appreciation and distillation of law we must apply gadia to each of the petitions, which, we may underscore, have been filed prior to the execution of the preventive detention orders on the petitioners.wp(crl.)2077/20066. mr. dubey, learned counsel for the respondent has raised a threshold objection that this court should decline to exercise territorial jurisdiction over the dispute. predicated on the grounds on which the impugned detention order was passed he has submitted that on information received by the respondents a consignment consisting of four hundred bags was examined and it was found to have been misdeclared. the directorate of revenue intelligence(dri) thereupon issued sundry summons to several persons including the petitioner who was eventually arrested on 28.12.2001 and was produced in the court of additional chief metropolitan magistrate, mumbai. the high court of bombay granted bail to the petitioner on 2.1.2002 and in compliance with one of the conditions of his bail, further statement was corroborated. the petitioner filed writ petition no. 241/2002 dated 21.1.2002 and criminal application no. 251/2002 in the high court of bombay. on 29.1.2002 the petitioner was ordered not to leave india without the permission of that high court and further that he should attend the office of the dri whenever lawful summons were issued to him. anticipatory bail came to be granted by that high court on 3.1.2002. the order of detention further informed the petitioner that the cofeposa advisory board, delhi high court would conduct its hearings at which he could be present and duly represented. mr. dubey states that the relevant events took place in mumbai; that the petitioner had invoked the jurisdiction of the bombay high court on more than one occasion in the past; and the seat of the prosecution would also be in mumbai and, thereforee, this court should decline to exercise jurisdiction. our attention has been drawn to the orders dated 30.4.2007 recording the petitioner's request for an adjournment in order to obtain instructions as to whether these proceedings should be withdrawn in order to approach the bombay high court. 7. it seems to us that this preliminary objection is not well-founded. the statement that the union government is located throughout every part of indian territory and hence can be sued in any court of the country, brooks no cavil. this does not, however, inexorably lead to the consequence that a litigant can pick and choose between any court as per his caprice and convenience. generally speaking, some part, nay, the significant part of the cause of action should have arisen within the territorial sway of the court which is chosen by the petitioner. kusum ingots and alloys ltd. v. union of india : 2004(186)elt3(sc) clarifies the law on these lines, as is evident from the following paragraphs thereof:when an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable in the high court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of original authority merges with that of the appellate authority. .we must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the high court, the same by itself may not be considered to be a determinative factor compelling the high court to decide the matter on merit. in appropriate cases, the court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (see bhagar singh bagga v. dewan jagbir sawhany : air1941cal670 ; mandal jalal v. madanlal 49 cwn 357; bharat coking coal limited v. jharia talkies and cold storage pvt. ltd. (1997) cwn 122; s.s. jain and co. and anr. v. union of india and ors. (1994) chn 445; new horizon ltd. v. union of india : air1994delhi126 ).8. various division benches of the delhi high court, inter alia, in suraj woolen mills v. collector of customs, bombay 2000 (123) e.l.t. 471, bombay snuff pvt. ltd. v. union of india : 2006(194)elt264(del) and commissioner of central excise v. technological institute of textile : 76(1998)dlt862 have clarified that the high court should not exercise jurisdiction only because the tribunal whose order is in appeal before it, is located within its territorial boundaries. in seth banarsi dass gupta v. cit : [1978]113itr817(delhi) and birla cotton & spinning mills ltd. v. cit, rajasthan : [1980]123itr354(delhi) this court declined to exercise jurisdiction because both the assesses resided and carried on business outside delhi. on a reading of article 226(1) of the constitution it will be palpably clear that without the next following provision, a high court may not have been empowered to issue a writ or order against a party which is not located within the ordinary territorial limits of that high court. the power to issue writs against any person or authority or government even beyond the territorial jurisdiction of any high court is no longer debatable. the rider or pre-requisite to the exercise of such power is that the cause of action must arise within the territories of that particular high court. it does not logically follow, however, that if a part of the cause of action arises within the territories over which that high court holds sway, it must exercise that power rather than directing the petitioner to seek his remedy in any other high court which is better suited to exercise jurisdiction for the reason that the predominant, substantial or significant part of the cause of action arises in that court. in other words any high court is justified in exercising powers under article 226 either if the person, authority or government is located within its territories or if the significant part of the cause of action has arisen within its territories. the rationale of section 20 of the code of civil procedure would, thereforee, also apply to article 226(2). these considerations are aptly encapsulated in the term forum conveniens which refers to the situs where the legal action be most appropriately brought, considering the best interests of the parties and the public (see black's law dictionary). the writ court should invariably satisfy itself that its choosing is not malafide or an example of forum shopping.9. this question has now been authoritatively settled by the supreme court in ambica industries v. commissioner of central excise : 2007(213)elt323(sc) where several of the above quoted decisions have been reviewed. the petitioner/assessed in that case carried on business at lucknow where it was also assessed. it approached the cestat, new delhi which exercised jurisdiction in respect of the states of uttar pradesh, maharashtra and the national capital territory of delhi. the appeal filed in the delhi high court was rejected on the ground of lack of territoriality, and the appeal to the supreme court turned out to be a sterile exercise. their lordships observed that 'the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other high court, the decision of the high court shall be binding only on the authorities which are within its jurisdiction. it will only be of persuasive value on the authorities functioning under a different jurisdiction. if the binding authority of a high court does not extend beyond its territorial jurisdiction and the decision of one high court would not be a binding precedent for other high courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. an assessed, affected by an order of assessment made at bombay, may invoke the jurisdiction of the allahabad high court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the high court at bombay.... it would give rise to the issue of forum shopping.... for example, an assessed affected by an assessment order in bombay may invoke the jurisdiction of the delhi high court to take advantage of the law laid down by it which may be contrary to the judgments of the high court of bombay'. 10. in our opinion, the bombay high court would indubitably be the forum conveniens ; we would not have been surprised had the petitioner assailed the impugned order passed in new delhi in the bombay high court. in cases such as these, we can conceive of no impediment in the passing of relevant orders from the place where the substantial cause of action has arisen; in this case, mumbai. however, we must not lose sight of the position that the scope of inquiry in an action challenging a detention order at the pre-execution stage is extremely narrow and circumscribed. it must fall within the five gadia exceptions, all of which do not require a detailed or minute consideration of facts. the court will abjure from interfering with the impugned order unless it is palpably obvious, from its mere perusal, that it runs counter to the gadia panchshils. in these circumstances, since the impugned order was passed in delhi and because of the limited nature of the possible arguments and also since we have heard the entire writ petition, we are extremely reluctant to restrict our decision only on the territoriality aspect. we hasten to add that this question is left open should the petitioner decide to challenge the detention order on its merits after it has been executed.11. mr. saurav kirpal, learned counsel for the petitioner, has challenged the impugned detention order on the strength of the decision dated 10.1.2008 delivered by the settlement commission who had been approached by the petitioner herein. it appears that the respondents have resigned themselves to this decision as it has not been assailed by them. we have, however, carefully perused the said order which was delivered ex parte the department. the commission has extensively recorded the argument raised before it on behalf of the petitioner to the effect that none of the penal provisions of the customs act, 1962 (for short 'customs act') are attracted to the facts of the case which is essentially one of over-invoicing. this very argument was raised before us but was rightly conceded in rejoinder by mr. kirpal, on our drawing the attention of learned counsel to the judgment of the apex court in om prakash bhatia v. commissioner of customs, delhi : 2002ecr336(sc) . their lordships opined that - 'in cases where the export value is not correctly stated, but there is an intentional overinvoicing for some other purpose, that is to say, not mentioning the true sale consideration of the goods, then it would amount to violation of the conditions for import/export of the goods. the purpose may be money-laundering or some other purpose, but it would certainly amount to illegal/unauthorised money transaction. in any case, overinvoicing of the export goods would result in illegal/irregular transactions in foreign currency.' reference was made to the earlier decision in toolsidass jewraj v. addl. collector of customs : 1991(53)elt518(sc) which was a case of under-invoicing which nevertheless was found to be a violation of section 12(1) of fera. furthermore, it was also noted that the provisions of section 50 of the customs act would invariably be violated in every case of over-invoicing or under-invoicing. in commissioner of c. ex. & customs. a.p. v. suresh jhunjhunwala : 2006ecr229(sc) the impact of over-invoicing came up for consideration. the court reaffirmed the views in bhatia, and did not follow commissioner of customs (ep), mumbai v. prayag exporters pvt. ltd. : 2003(155)elt4(sc) . this question is no longer debatable pursuant to the insertion of section 113(h)(i) in the customs act with effect from 14.5.2003. thereforee, over-invoicing definitely invites and attracts prosecution under the said act. 12. placed in this predicament mr. kirpal has next contended that since the customs act does not have extra territorial operation, the petitioner cannot be found guilty of having abetted in the violation of its provisions. if this is so, according to mr. kirpal, the present case falls within the boundaries established by gadia. he has eloquently drawn attention to the orders of the bombay high court dated 1.11.2007 whereby the matter was remitted to the settlement commission for deciding the question whether any of the penal provisions of the customs act could be invoked against the petitioner in circumstances where, admittedly, he was not resident in india at the relevant time. he has contended, and it is trite, that the customs act operates only within india. section 1(2) states that this statute shall extend to the whole of india, which is in sharp contrast to the fasciculous comprising sections 3 to 5 of the indian penal code. the order of the settlement commission has attained finality as it has not been questioned in any legal forum by the respondents. indeed, the respondents have not denied that at all material times the petitioner was not in india. he was a resident of dubai from where he was transacting business in the name and style of super chemical trading llc, dubai. according to the petitioner he had merely issued a letter of authority in favor of his sister, mrs. naseem dasai, who was based in london, authorising her to collect and deposit documents on behalf of the said firm. the petitioner asserts that at the instance of his brother-in-law, mr. yusuf dhanani, he endorsed blank bills of lading; but all these acts took place outside india. there can be no quarrel that the finding of the settlement commission to the extent that for abettment to be made out, the offence must be committed within india. the commission has recorded a finding that there is no allegation against the petitioner to this effect. however, as already noted above, the proceedings were heard and concluded ex-parte the respondents. in the counter affidavit filed in these proceedings the respondents have asseverated that the petitioner had violated the customs act by abetting mr. yusuf to prepare bogus bills of lading by misdeclaring goods presented for export, thus rendering the consignment liable for confiscation under section 113 of that act, read with section 3(3) and 11(1) of the foreign trade development and regulation act rule, 1993, read with section 50(2) of the customs act, 1962. mr. dubey has contended that the act of smuggling would not have been possible without the active participation and cooperation of the petitioner and, thereforee, abettment in the act of smuggling cannot seriously or successfully be defended by the petitioner. mr. dubey has laid emphasis on the fact that this petition has been filed at the pre-execution stage of the detention orders and, thereforee, judicial review ought not to travel beyond the gadia principles. 13. with due respect to the commission, we are unable to find any reasoning behind their conclusion that 'even on merits, it can be seen that the applicant had only signed some documents at the instance of the principal offender sh. yusuf dhanani. sh. yusuf dhanani has been heavily penalised for it in the said final order. thus on merits too the penalty against this person is not attracted and no prudent adjudicator would order levy of penalty in such facts.... if the contention of the revenue is accepted then all foreign suppliers, all over the world, who have connived and colluded will (sic. with) for under valuation by raising two sets of invoices should have the subject matter of show cause notice issued by the customs/revenue in india. this has never been done as the law is not applicable to such persons who have neither abetted or concluded or have been an accomplice in the acts of omission or commission committed by indian importers which have rendered goods liable to confiscation.' we are unable to agree with these findings especially since no reasons have been given for coming to this conclusion. once it is found that the offence has been committed, or a violation of the customs act has been perpetrated in india, persons who have abetted in the perpetration of this violation would justifiably be charged as abettors. a distinction has to be drawn between the commission of an offence, or the perpetration of a violation of the customs act beyond the territory of india, and the abettment of this species of offences committed outside india. once abettment is proved, the law would take its course even with respect to persons who were at the material time outside indian boundaries. in our own research we have come across the decision of the supreme court in union of india v. sampat raj duggar : 1992(58)elt163(sc) . duggar, an indian national resident and transacting business at hong kong, had dispatched a consignment of silk to india in the name of respondent no. 1 who was doing business at delhi. the consignment was confiscated because the import license had been cancelled after the goods had been imported into india. cancellation was based on violations by respondent no. 2 of the terms of previous import licenses. the supreme court upheld the decision of the single judge of the bombay high court to the effect that title in the goods had not passed to respondent no. 2 since payment had not been made, and thereforee the goods continued to be owned by respondent no. 1; and further that there was no violation of the terms of import justifying confiscation of the goods. in conclusion, and this can be extrapolated to the present case, their lordships observed as follows:24. it is also significant to notice that it is not the case of the appellants that respondent 1 was a party to any conspiracy or other fraudulent plan hatched or sought to be implemented by respondent 2. if that were the case, different considerations would have arisen.14. these observations are relevant and ominously foreboding so far as the present petitioner is concerned. if it is eventually proved that the petitioner was party to any conspiracy or other fraudulent plan hatched or sought to be implemented by mr. dhanani, abettment of a crime committed in india would uncontrovertably be made out. the observation of the settlement commission that action has not been taken against a foreigner does not appeal to us. there is no bar in prosecuting any person who has been abetting in a violation of the customs act merely because such action may not have been initiated in the past. we are required to pre-judge the entire issue at the pre-execution stage of the detention orders. we must be loathe to do so.15. in alpesh navinchandra shah v. state of maharashtra : (2007)2scc777 the petitioner had been granted immunity from any penalty that could be levied under the customs act and also from the prosecution under the customs act, as well as under indian penal code, in terms of sub-section (1) of section 127h of the customs act. nevertheless, in paragraph 49, their lordships observed that it had not been mentioned in the settlement commission's order that the petitioner would not indulge in smuggling of goods in future. relying on the ratio in pawan bhartiya v. union of india : (2003)11scc479 it was held that since the petitioner had ceased his activities in the field of import or export and had paid the tax with penalty, and had not indulged in any activity similar to the previous one, the purpose of passing the detention order would become punitive rather than preventive; the petition was allowed for this reason. the factual matrix in the present petition and alpesh as well as bhartiya is not similar. we may only emphasise that their lordships had conceptualised a situation where despite the conclusive orders of the settlement commission passing of detention orders could well be in consonance with law depending on the facts of each case. otherwise there would have been scant significance in recording the observation that alpesh had discontinued import export trade.16. this discussion would not be comprehensive without a consideration of section 188 of the code of criminal procedure, 1974 (cr.p.c). this provision deals with offences committed outside india. in the case of indian citizens there are no restriction as to the place or situs where the offence has allegedly occurred, whereas non citizens would have to have been aboard an 'indian flag' vessel for the section to apply. this amply clarifies the observations made by the settlement commission pertaining to the non-prosecution of foreigners heretofore in similar matters concerning under or over-invoicing. in sharp contrast to the provisions of the cr. pc section 4 of the ipc restricts the operation thereof to offences punishable under the ipc alone. it is important to underscore the fact that the word 'offence' has been defined in section 2(n) of the cr.p.c. to mean 'any act or omission made punishable by any law for the time being in force....' the legislature clearly intended that the cr.p.c. would not be circumscribed in its application only to offences dealt with in the ipc. any doubt on this score would stand dispelled on a reading of section 4, cr.p.c. the first sub-section declares that any offence under the ipc shall be investigated, inquired into, tried and otherwise dealt with according to the cr.p.c.; and the second subsection makes the cr.p.c. applicable to all other offences. ergo section 188, cr.p.c. will regulate the prosecution of any violation of the customs act. there are several provisions of the customs act which moderate or exempt the applicability of the cr.p.c.; however section 188 thereof is not so dealt with. it is important to draw a distinction between an inquiry and trial under the cr.p.c, and preventive detention under the cofeposa or any other law. however, since detention orders have been passed by the central government, the proviso to section 188 would stand impliedly complied with, assuming its applies. thus, the impugned orders are impervious to the challenge laid out in this petition. it will be relevant in this regard to extract passages from ajay agarwal v. union of india : 1993crilj2516 , even though this precedent pertained to the ipc:27. ...no opinion on the facts of this case. the ratio in fakhrulla khan: : air1935mad326 has no application to the facts in this case. therein the accused were charged for offences under section 420, 419, 467 and 468 and the offences were committed in native state, mysore. as a result the courts in british india i.e. madras province had no jurisdiction to try the offence without prior sanction. equally in verghese's case air 1947 mad 352the offences charged under section 409, ipc had also been taken place outside british india. thereforee, it was held that the sanction under section 188 was necessary. the ratio in kailash sharma's case 1973 cri lj 1021 is not good at law. the appeal is accordingly dismissed..31. what has to be examined at this stage is if the claim of the appellant that the offence under section 120b read with section 420 and section 471 of the ipc were committed outside the country. an offence is defined in the cr.p.c. to mean an act or omission made punishable by any law for the time being in force. none of the offences for which the appellant has been charged has residence as one of its ingredients. the jurisdiction to inquire or try vests under section 177 in the court in whose local jurisdiction the offence is committed. it is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction. when two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy under section 120a of the ipc. the ingredients of the offence is agreement and not the residence. meeting of minds of more than two persons is the primary requirement. even if it is assumed that the appellant was at dubai and he entered into an agreement with his counterpart sitting in india to do an illegal act in india the offence of conspiracy came into being when agreement was reached between the two. the two minds met when talks oral or in writing took place in india. thereforee, the offence of conspiracy cannot be said to have been committed outside the country. in mobarik ali ahmed v. the state of bombay 0043/1957 : 1957crilj1346 , this court while dealing with the question of jurisdiction of the courts to try an offence of cheating committed by a foreign national held that the offence of cheating took place only when representation was made by the accused sitting in karachi to the complainant sitting in bombay. the argument founded on corporeal presence was rejected and it was observed:what is, thereforee, to be seen it whether there is any reason to think that a foreigner not corporeally present at the time of the commission of the offence does not fall within the range of persons punishable thereforee under the code. it appears to us that the answer must be in the negative unless there is any recognised legal principle on which such exclusion can be founded or the language of the code compels such a construction. if a foreign national is amenable to jurisdiction under section 179 of the cr. p.c. a nri cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present.32. preparation of bill of lading at dubai or payment at dubai were not isolated acts. they were part of chain activities between the appellant and his associates with whom he entered into agreement to cheat the bank at chandigarh. any isolated act or omission committed at dubai was insufficient to constitute an offence. the illegal act of dishonestly inducing the bank at chandigarh was committed not by preparation of bill at dubai but its presentation in pursuance of agreement to cheat. the submission thus founded was on residence or on preparation of bills of lading or encashment at dubai are of no consequence.33. nor is there any merit in the submission that even part of the offence would attract section 188 as the section operates when offence is committed outside india. an offence is committed when all the ingredients are satisfied. the section having used the word offence it cannot be understood as part of the offence. section 179 cr. p.c. empowers a court to try an offence either at a place where the offence is committed or the consequences ensue. on the allegations in the complaint the act or omissions were committed in india. in any case the consequence of conspiracy, cheating and forging having taken place at chandigarh the offence was not committed outside the country thereforee the provisions of section 188 cr. p.c. were not attracted.17. in the present case, however, it is worthwhile to note that immunity from only the liability of the penalty had been ordered. section 127h(1) of the customs act contemplates immunity from prosecution for any offence under the customs act or under the ipc or under any other central act for the time being in force, and also either wholly or in part from imposition of any penalty, fine and interest under the customs act. in other words, immunity from prosecution and/or immunity from imposition of any penalty etc. can be ordered by the settlement commission. there must be a specific order on both these reliefs and if either is not mentioned it will be assumed to have been declined. furthermore, the underlined words stand deleted with effect from 31.5.2007 vide act 22 of 2007. onwards of 1.6.2007 thereforee the settlement commission has jurisdiction to grant immunity from prosecution only in respect of the customs act and no other law. the proviso to the section 127h(1) curtails the power of the settlement commission in regard to granting immunity even in those instances where proceedings for prosecution have already been initiated. it is palpably clear that immunity from prosecution and immunity from imposition of penalty etc. are two distinct reliefs. in the case in hand, the settlement commission has granted immunity only in respect of penalty proceedings; it could also have granted immunity from prosecution under the customs act but did not do so. mr. kirpal's reference to section 127j of the customs act thereforee does not advance the petitioner's case at all. even though preventive detention cannot be equated with prosecution, it is certainly not of the nature of penalty proceedings. ergo, the orders of the settlement commission do not impact upon the impugned detention orders.18. keeping all arguments raised before us in perspective, we are of the opinion that the petition is devoid of merit. the petitioner has not been able to establish that the case falls within one or more of the exceptions established by gadia and thereforee it would be inappropriate to exercise our extraordinary powers of judicial review. since the petitioner is absconding, and thereby defeating the purpose of the law, and yet seeks its protection, we ought to dismiss the petition with heavy costs. we, however, desist from doing so.19. petition stands dismissed.wp(crl.)1093/200720. one of the contentions of mr. jain is that inordinate delay has occurred in the passing of the impugned preventive detention order; that despite the passage of almost five years since its passing it has not been executed on the petitioners. these contentions are devoid of merit. in sunil fulchand shah v. uoi : 2000crilj1444 the constitution bench has opined that the view taken in state of gujarat v. adam kasam bhaya : 1981crilj1686 and state of gujarat v. mohd. ismail jumma : 1982crilj421 , namely, that the period of detention would commence from the date of detention, is correct. the controversy also stands fully covered by the decision in mansukh chhagan lal bhatt v. union of india : 56(1994)dlt561 . the full bench of this court opined that the important characteristic of gadia requires that at the time of the passing of the impugned detention order it must suffer from any of the five gadia infirmities. the full bench drew the distinction between a situation where the order had been passed for a valid purpose but which had become irrelevant by lapse of time. even in such a situation it was held that a petition challenging the detention order at the pre-execution stage should not be entertained. with all humility, it seems to us that the full bench has correctly culled out the law from the plethora of precedents on the point, handed down by the supreme court of india. meena jayendra thakur v. uoi : 1999crilj4534 explicitly clarifies that the relevant point in time is the date on which the impugned order was passed, and not subsequent events. their lordships opined thus - 'if the detaining authority on the basis of the materials before him did arrive at his satisfaction with regard to the necessity for passing an order of detention and the order is passed thereafter, the same cannot be held to be void because of a subsequent infraction of the detenu's right or of non-compliance with the procedure prescribed under law. on such infraction and for non-compliance with the procedure prescribed under law, the further detention becomes illegal. but it does not affect the validity of the order of detention itself issued under section 3(1) of the act by the detaining authority.'21. in chaya ghoshal their lordships ruled that 'if the petitioner complaining of infraction of his personal liberty is himself guilty of perpetrating a fraud inter alias by creating an impediment in the path of the respondents thereby causing a delay in the disposal of the representation, he would not be entitled to the succour by the writ court'. these observations, in our view, would apply equally to delay in execution of the preventive detention order practiced and orchestrated by the petitioner himself. 22. the next contention of mr. jain is that the petitioner is entitled to gadia protection since the preventive detention order has palpably been passed for the wrong reasons. according to him, the first facet is that the petitioner had enjoyed an enviable and unblemished reputation as a businessman and a highly respected position in society prior to these incidents. we were taken through several commendations made in favor of the petitioner by assocham and phd chamber of commerce etc. in this regard. the contention is that since there was no prior commission of any dubious or illegal transactions, clamping preventive detention on the petitioner was totally misplaced. this very argument had not found favor of the apex court in chaya ghoshal where it was observed that it is the impact of the act and not the number of acts which will justify the passing of such an order. ms. barkha babbar has also drawn our attention to abdul sathar ibrahim manik v. union of india : 1991crilj3291 where the submission that if there are no antecedents and it is only a solitary incident, preventive detention would be unwarranted was turned down by the court. their lordships left such a decision to the satisfaction of the detaining authority, who may not earlier have been able to 'salvage' the petitioner's antecedent. the court held that even a solitary incident may disclose smuggling potentialities of the petitioner. in our opinion it is quite possible that previous illegal transactions and imports may well have gone undetected.23. ms. babbar has further highlighted that the petitioner was involved in the fraudulent export under the claim of duty drawback of rs. 49.75 lacs against seven shipping bills by over-invoicing and misdeclaration of goods. in response to this submission mr. jain has stated that an opinion taken from another trader, who has since retracted his statement, cannot and should not be used against the petitioner. the second consignment concerned export of nickel welding electrodes, in whose stead iron electrodes had been consigned for export. mr. jain has stated that by letter dated 4.4.2003 the petitioner had informed the assistant commissioner, icd faridabad that there was some human error in description of the consigned goods; it was requested that the shipment may be permitted to be withdrawn. the petitioner has also filed a letter dated 16.4.2003 informing the commissioner, customs, icd tughlakabad, new delhi for the cancellation of the order by the buyer. hence, a request for withdrawal of the shipment was made. receipt of the letter dated 4.4.2003 has been vehemently denied in unequivocal terms in the counter affidavit. we also note the absence of any reference of this letter by the petitioner in the immediately following letter dated 16.4.2003. no doubt, there is some weight in the petitioner's reliance on the cross-examination of the inspector of customs who had been asked whether the letter dated 4.4.2003 was on record. in his answer he has admitted this to be correct with the caveat that the case had already been detected by that time and the sample had been drawn. we cannot lose sight of the fact that both these grounds are in the nature of disputed questions of fact. it would be wholly inappropriate for us to delve into this matrix at this stage, which is a challenge to the preventive detention order at the pre-execution stage; we decline to do so.24. mr. jain has also argued that the vital document, that is letter dated 4.4.2008, had not been forwarded by the sponsoring authority to the detaining authority, and has drawn our attention to the decision of a coordinate bench in vikas aggarwal v. uoi 2007 3 ad 621. our learned brothers had only referred to rajinder arora and not to the several other judgments, all of which require the writ court to abjure consideration of a petition challenging a preventive detention order prior to the order being served/executed on the petitioner. mr. jain's argument is that this failure brings the case within the third gadia exceptions, namely, passing of the detention order for the wrong purpose. in our opinion, if the existence of this letter were not shrouded in controversy, the case may have fallen in the fourth exception, namely, that the impugned detention order has been passed on vague, extraneous and irrelevant grounds. non-consideration of a vital document would invariably lead to the concerned decision becoming vague and irrelevant inasmuch as it ceases to be passed on all relevant material. in the present case, however, as there is considerable controversy on the authenticity of the letter dated 4.4.2003, we think it inappropriate to go into this question at this stage of the proceedings between the parties before us. most importantly, this very question had been raised, without success, in bawamiya. in paragraph 7 of the reports their lordships observed that since the detenu had not been served with a copy of the order 'it was not open to the petitioner to contend that the non-existent order was passed on vague, extraneous or on irrelevant grounds.' 25. mr. jain has also contended that despite the passage of five years no criminal proceedings have been initiated in respect of the two show cause notices issued to the petitioner. in respect of consignment of denim shirts and jackets reliance has been placed on the pendency of a special leave petition in the supreme court of india. there can be no gainsaying that criminal prosecution and preventive detention have different fields of operation and do not require to co-exist or to be prosecuted contemporaneously. every prosecution does not result in preventive detention. preventive detention may, in certain circumstances, become imminently necessary, whereas prosecution may be initiated later on, especially since no prescriptive period is prescribed in respect of such offences.26. in this analysis the inevitable conclusion is that the petition is not maintainable at this stage since it is not open to the petitioner to challenge the impugned detention order on any of the grounds raised before us until such time as it is served/executed on the petitioner. the petition is dismissed but we refrain from imposing costs.