Legal principle

A preventive detention order can be challenged in writ jurisdiction before its execution only if it falls within one of the five exhaustive Alka Subhash Gadia exceptions — otherwise the petition is premature and not maintainable until the order is served/executed on the detenu.

Court decision

The Delhi High Court (Vikramajit Sen, J.) held the petitions were not maintainable at the pre-execution stage and dismissed them without costs, rejecting the petitioner's grounds as none fell within the five Gadia exceptions; the territorial jurisdiction objection was rejected and the Court proceeded to apply Gadia.

Facts

The petitioners challenged preventive detention orders (with COFEPOSA Advisory Board hearings in Delhi) by writ petitions filed before the orders were served or executed on them. In one matter, DRI examined a consignment of four hundred bags found misdeclared, summoned several persons, and arrested the petitioner on 28.12.2001, who was later granted bail by the Bombay High Court. In another matter, the petitioner was alleged to have fraudulently exported goods claiming Duty Drawback of Rs. 49.75 lacs against seven shipping bills by over-invoicing and misdeclaration (including Denim Shirts/Jackets and consigning Iron Electrodes in place of Nickel Welding Electrodes). Two Show Cause Notices had been issued, but no criminal prosecution had been initiated in five years.

Key provisions

• Section 11(1), Customs Act, 1962 — Power to prohibit importation or exportation of goods
• Section 3(3), Customs Act, 1962 — Classes of officers of customs
• Section 50, Customs Act, 1962 — Entry of goods for exportation
• Section 127J, Customs Act, 1962 — Order of settlement to be conclusive
• Section 113, Customs Act, 1962 — Confiscation of goods attempted to be improperly exported