Legal principle

A COFEPOSA detention order can be challenged at the pre-execution stage only on the five limited Alka Subhash Gadia grounds (wrong statute, wrong person, wrong purpose, vague/extraneous/irrelevant grounds, or incompetent authority), and by majority the Supreme Court dismissed all attempts to enlarge those grounds.

Court decision

By a 2:1 majority (Justices Gyan Sudha Misra and J. Chelameswar, in separate but concurring judgments, disagreeing with Chief Justice Altamas Kabir), all the matters - the writ petitions, appeals and the transferred case - were dismissed; the CJI's judgment (which had allowed the transfer petitions, dismissed Crl.A. Nos. 1909/2011, 1938/2011, 2091-2092/2012 and 2442/2012, and disallowed T.P.(Crl.) Nos. 38-39/2013, W.P.(Crl.) No. 220/2011 and W.P.(Crl.) No. 14/2012 as premature) did not prevail. The challenges to the detention orders therefore failed.

Facts

Several detenues and proposed detenues, led by Subhash Popatlal Dave, challenged COFEPOSA detention orders passed by the Joint Secretary, Government of India (e.g., Dave's order No. F.673/89/97-CUS.VIII dated 18.08.1997 under Section 3(1) of the COFEPOSA Act, 1974) at the pre-execution stage, in matters with customs/FERA antecedents. The orders were of varying vintage (1997, 2001, 2009) and had remained unexecuted for long periods; in Dave's case a prosecution under various sections of FERA, 1973 was already pending. One challenge had been dismissed by the Bombay High Court (Criminal Writ Petition No. 1645 of 2010, dismissed 5.1.2011). All matters were heard together because they raised a common question on the permissible scope of pre-execution challenges to detention orders.

Key provisions

• Section 127H, Customs Act, 1962 — Power of Settlement Commission to grant immunity from prosecution and penalty
• Section 127, Customs Act, 1962 — Award of confiscation or penalty by customs officers not to interfere with other punishments
• Section 112, Customs Act, 1962 — Penalty for improper importation of goods