The Judgment of the Court was delivered by

Sreedharan, J.:— Petitioner in O.P 17244/1994 is a person against whom order of detention has been issued by the State Government under S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as “the COFEPOSA Act”. That order was issued on 30-10-1989. Till date, he could not be arrested and detained pursuant to the said order of detention, even though various steps were taken by the Government for the said purpose. On 25-1-90, Government of Kerala issued notification in the official gazette under S. 7(1)(b) of the COFEPOSA Act directing the petitioner to appear before the Superintendent of Police Malappuram. Thereafter a report was sent to the Chief Judicial Magistrate, Manjeri under S. 7(1)(a) of the COFEPOSA Act on 25-1-1990. The Magistrate, on the basis of that report, registered a case as C.M.P 242/1990. Thereupon petitioner moved the High Court of Calcutta (The number of the proceedings is not seen from the attested copy). Justice A.M Bhattaeharjee restrained the respondents from serving on the petitioner any order of detention under the provisions of the COFEPOS A Act or on any of the grounds on which a criminal case has been started against the petitioner and is pending before the Additional Chief Judicial Magistrate, Economic Offence, Ernakulam being O.S No. 71.UB/89 on the basis of seizure made on 15-6-89 by the officers of the Air Customs, Trivandrum. A copy of that order was directed by the Court to be given to the petitioner duly counter-signed by the Assistant Registrar of the Court. A copy of that order was filed before the Chief Judicial Magistrate's Court, Manjeri along with C.M.P 2719/1991. As a result of that, the learned Magistrate recalled the non-bailable warrant issued against the petitioner herein, namely Sri. K. Abdul Azeez. It is now agreed on both sides that the proceedings initiated before the High Court of Calcutta was transferred to the Supreme Court at the instance of the State Government. The Supreme Court quashed the proceedings pending before the High Court of Calcutta; It appears that the order of the Supreme Court has not been produced before the Chief Judicial Magistrate, Manjeri. So, the proceedings in C.M.P 242/1990 continues to be stayed.

2. O.P 17244/1994 was filed by the petitioner challenging the order of detention before it was executed. Along with the petition, he moved C.M.P 30454/1994 praying for stay of operation of Exhibit P6 (detention order passed under the COFEPOSA Act) and Exhibit P10 the order passed by the Government rejecting the representation made by the wife of the petitioner to withdraw the order of detention) pending disposal of the Original Petition. On 27-1-1995, a learned Single Judge passed an order of interim stay as prayed for, for a period of one month. When the said petition came up before the learned Judge on 24-2-1995, the learned Judge extended the order of stay for a further period of three months. That order has been taken up in appeal by the State as W.A 323/1995. When the appeal came up for admission, learned counsel representing the respondent raised a contention that appeal is not maintainable as per the decision of this Court in K.S Das v. State of Kerala, 1992 (2) KLT 358. Jagannadha Rao, C.J, speaking on behalf of the majority of Judges, formulated the conclusions in paragraph 46 of that judgment. It inter-alia stated that an appeal would lie against an order only if substantially affects or touches upon the substantial rights or liabilities of the parties or are mailers of moments and caused substantial prejudice to the parties. His Lordship went on to state that normally a discretionary order is not to be interfered with unless it was passed without jurisdiction, contrary to law or are perverse and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. In the instant case the order that was sought to be stayed was an order passed under the COFEPOSA Act to detain the petitioner. The execution of that order was the one sought to be stayed by the learned Single Judge. Without looking into the law on the point, it appeared that the learned Single Judge stayed its operation as a matter of course. When it was found that the order happened to be passed in clear mistake of the provisions of law, we were of the view that the appeal has certainly to be entertained. Accordingly, we admitted the appeal and stayed the operation of the order passed by the learned Single Judge in C.M.P 30454/1994. That appeal came up for final hearing on 20-3-1995. On hearing counsel appearing on either side, we felt that for a proper decision, the Original Petition has to be called to this Court to be disposed of along with the Writ Appeal. Accordingly, we passed the following order:—

“This is an appeal against an order passed in C.M.P 30454/94. On the facts and circumstances of this case, we feel that for a proper decision, the O.P itself has to be called to this Court. Accordingly O.P 17244/94 is called to this Court to be heard along with the W.A Post O.P, 17244/94 and this W.A on 23-3-1995”

3. On 23-3-1995 when the Writ Appeal and Original Petition were taken up for hearing, a curious argument was advanced by the learned counsel representing the petitioner to the effect that this Court has no jurisdiction to hear the Original Petition. According to counsel, as per S. 3 of the High Court Act, an Original petition can only be heard by a learned Single judge. It is his argument that an Original Petition can come before a Division Bench only if the Single Judge refers the same to be heard by a Bench. Another submission, even according to the learned counsel, is that the Chief Justice of the High Court may withdraw an Original Petition pending before the Single Judge and post it before a Division Bench to hear the same. Unless the above two conditions are satisfied, no Division Bench will be having the power to hear and dispose of an original Petition. According to him if the Division Bench is disposing of an Original Petition, he will be losing a right to have an internal appeal to a Division Bench. This argument of counsel, We are afraid, is based on a wrong understanding of the provisions of the High Court Act. S; 4 of the High Court Act specifically states that a Bench of two Judges of the High Court has the power in respect of which the power of the High Court can be exercised by a Single Judge. Thus, if the Single Judge has the power to dispose of an Original petition, that power can necessarily be exercised by a Bench of two Judges. Further, in the instant case when W.A 323/1995 came up before the Bench, it was considered just and proper to have the original Petition also heard and disposed of along with the Writ Appeal. It was on account of that conclusion arrived at by us, the Original Petition was withdrawn to be heard along with the appeal. The order by which the Original Petition has been withdrawn to this Bench to be heard along with the Writ Appeal is not open to challenge on the ground that it has been done without jurisdiction. Had S. 4 been taken note of by the learned counsel, the above argument would not have been advanced. The jurisdiction of then High Court in pre-execution challenge to the orders of detention has been the subject matter of many a number of decisions by the Lordships of the Supreme Court. In Additional Secretary, Govt, of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496, the law has been clearly stated by a Bench of three Judges in the following terms:—

“This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. In view of die discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first isntance, as stated earlier, the Constitution and the valid law made thereunder do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, in the rare cases where the detenu, before being served with them, leams of the detention order and the grounds on which it is made, and satisfies the court of their existence by proper affirmation, the Court does not decline to entertain the Writ Petition even at the preexecution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show diatin some genuine cases, the courts have exercised their powers a the pre-executionstage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the preexecution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenue claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well setded principles”.

After stating the law, Their Lordships stated that the decision in S.M.D Kiran Pasha v. Government of A.P, (1990) 1 SCC 328, and the decisions of all the High Courts which are contrary to or inconsistent with the above decision must be deemed to have been disapproved and overruled. The main argument advanced by the learned counsel was based on the decision in S.M.D Kiran Pasha's case. In view of the decision in Alka Subhash Gad in's case, it is not necessary for us to consider the impact of that decision on the facts of this case.

4. The real question that calls for consideration by us is whether the petitioner is entitled to challenge the order of detention without himself submitting or surrendering to that order. The question is whether the petitioner is entitled to challenge the detention order even before he submits himself to that order. Only in exceptional circumstances can the Court go into the question regarding the validity of the order of detention. As the law laid down by the Supreme Court now stands, where the Courts 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,

The Courts can go into the order of detention in a pre-execution stage. The order of detention issued against the petitioner is certainly one under the COFEPOSA Act. So, the first ground mentioned therein is not available to the petitioner herein. Petitioner has no case that the second ground also applies in the instant case, because nowhere has he stated that he is the wrong person sought to be detained as per the order of detention. The purpose mentioned in Exhibit P6 cannot be stated to be an irrelevant or wrong purpose vis-a-vis the provisions contained in the COFEPOSA Act. So, the third ground is also not available to the petitioner. The main contention raised by the counsel representing the petitioner is that the order of detention was issued on vague, extraneous and irrelevant grounds. At this stage, petitioner is not entitled to know the grounds under which he has been detained. Law does not allow him to have the grounds divulged to him before he surrenders. The detention order passed by the detaining authority simply states that the order was passed under S. 3(1)(ii) of the COFEPOSA Act with a view to prevent him from abetting the smuggling of goods. The said purpose cannot be stated to be extraneous or irrelevant to the order of detention. Petitioner has no case that the Secretary to Government, Home Department, who issued Exhibit P6 order of detention, is not having the authority to issue the same. In these circumstances, we are of the opinion that the petitioner's case will not fall in any of the five grounds mentioned by the Supreme Court for this Court to interfere with the order of detention.

5. Another contention raised by the learned counsel representing the petitioner is that the order of detention was passed on 30-10-1989. The said order has not been executed till date. The detaining authority and the police have not taken prompt action to apprehend the petitioner till date.So, the purpose of issuing the order of detention has failed and so it should not be allowed to be executed. This argument, on the facts and circumstances of this case, has only to be stated to be rejected. Smuggling of gold into India was detected on 15-10-1989. Exhibit.P6 order of detention was passed on 30-10-1989. That means, within fifteen days of the incident the order of detention has been passed. So, the order was issued promptly. When the petitioner was found absconding, notification under S. 7(1)(b) was issued in the official gazette dated 25-1-1990. The matter was reported to the Chief Judicial Magistrate, Manjeri on 25-1-1990 itself, under S. 7(1)(a) of the COFEPOSA Act. Immediately there on, he moved the Calcutta High Court giving his address as:

“KALAYATH ABDUL AZIZ, residing at Hadoo, Andaman & Nicobar Islands, Port Blair”.

He described himself to be a business carrying on businessman of fish and dry fish from Port Blair. Thus he got an order of stay of the, proceedings of the Magistrate's Court, Manjeri from the High Court of Calcutta. In this Original Petition he has given his address as:

“Kalayathu House, Muttippalam,

Anakkayam P.O, Malappuram District”.

6. He stated that he was peacefully living and eking his livelihood as Auto Consultant at Manjeri. He has concealed the factum of his approach to the High Court of Calcutta. This shows that he has come to this Court with unclean hands. A person who was eluding the dragnet of the detention order is not entitled to take advantage of his cohcealment and contend that on account of delay in execution of the order of detention the said order is to be quashed. This point is concluded by the decision of the Supreme Court in Bhawarlal Ganeshmalji v. State of T.N, (1979) 1 SCC 465; and Subhash Muljimal Gandhi v. L Himingliana, JT 1994 (5) SC 358. In the first case, the delay of three years in the execution on account of the detenu's evasion from arrest was not considered as fatal to its execution. According to their Lordships, even after the expiry of the three year, the order of detention was still effective if the detenu himself was to be blamed for the delay in execution. In the second decision, the delay in execution of the order was more than two years. That was also caused on account of the detenu absconding from the place. The detenu was not allowed to get the order vacated on account of the alleged delay which was caused by his own action.

7. On behalf of the respondent, a detailed counter affidavit has been filed, wherein it has been stated that petitioner was absconding and he was evading the arrest. The fact that he was evading the arrest is established beyond all doubts by his action in moving the High Court of Calcutta. For that purpose, he gave a false address, which has been quoted earlier. In order to show that he was available in his native place, he relied on a statement given before the Chief Judicial Magistrate's Court, Manjeri in S.T 153/1993. Attested copy of that statement is marked as Ext. P13. That document was not produced along with the Original Petition. It was filed along with the reply affidavit. So, the respondent had no opportunity to refer to that in the counter affidavit. Ext. P13 is seen to be a statement given by him in a private complaint lodged by him on account of the bouncing of a cheque by another for an amount of Rs. 38,300/-. When we asked about the further progress of the case S.T 153/1993 on the file of the Chief Judicial Magistrate, learned counsel representing the petitioner submitted that the matter had been settled between the petitioner and the accused therein. Since that proceeding has been settled between the parties and since this statement was produced along with the reply affidavit, we do not consider it proper to place any reliance on it. We discard that document. Another argument advanced by the learned counsel representing the petitioner is that there is no material to connect him with smuggling of gold into India.We are not impressed with his argument. Though the factual submissions are not relevant consideration at this stage in the context of the priinciples laid down in Alka Subhash Gadia's case, we proceed to examine the facts to satisfy our judicial conscience. One K.A John was in Dubai. He was in animpunious situation and he was fmding it difficult to go over to India. Then he came across one Abdul Rahiman. He agreed to give him the required air ticket and a sum of Rs. 10,000/-, provided he smuggles into India gold concealed in an Air Conditioner. Sri.K.A John agreed to that course and gave photo copy of his passport and the details required to reach him in his residential address in Kerala. An Air Conditioner was sent to Trivandrum as unaccompanied baggage in the name of John. One Haris, brother-in-law of the petitioner, met John at his house with money, on the basis of the details which John had given to Abdul Rahiman. Haris and John went to Trivandrum Air. Customs Office for clearing the unaccompanied baggage. When the baggage was opened, the Customs authorities found 9320 gms. of gold rods concealed in it Haris, who was keeping out to get the consignment, was immediately apprehended by the Customs authorities. He gave a statement under S. 108 of die Customs Act. That statement clearly brings out the involvement of petitioner in getting the gold smuggled into India. From the above evidence, it has come out that petitioner gave Haris the address and the route to John's house, written in a photostat copy of John's passport and directed him to go to John's house at Kottayam to get the baggage from Trivandrum Air Cargo Complex. Petitioner has provided funds with Haris to meet the entire expenses and also to give any amount if found payable to the Customs authorities. On the basis of this material, we are not in a position to hold that the order of detention was issued on irrelevant grounds.

8. Learned counsel representing the petitioner cited before us many decisions of the Supreme Court, wherein orders of detention were interfered with on account of the delayed execution. In all those cases, the detenus were arrested and the issue was considered by their Lordships in the proceedings for issue of writ of habeas corpus. In the instant case since the delay in execution of the order of detention has been occasioned on account of the wrongful action on the part of the petitioner, he cannot be allowed to take advantage of the same. Consequently the above mentioned decisions are not applicable to facts before us.

9. Since the petitioner has not been served with the grounds of detention, we are not in a position to hold that there is no justifiable reason for his detention.

10. Another argument advanced by the learned counsel representing the petitioner was that no criminal proceeding or proceedings under the Customs Act has been initiated against him and so no order of detention under the COFEPOSA Act can be issued. We are not impressed with this argument. This aspect was considered by a Constitution Bench of the Supreme Court in H. Saha v. State of W.B, (1975) 3 SCC 198 : AIR 1974 SC 2154. Their Lordships observed:—

“The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution”.

11. Therefore, the fact that the petitioner was not prosecuted for smuggling gold into India or that he was not proceeded against by Customs authorities is no reason to hold that no order of detention can be passed against him under the COFEPOSA Act.

12. In Saraswathi Seshagiri v. State of Kerala, (1982) 2 SCC 310 : AIR 1982 SC 1165, Their Lordships held that the legislature has made only the subjective satisfaction of the authority making the order of detention; it is not for the Court to question whether the grounds given in the order are sufficient or not for the subjective satisfaction of the authority. In the instant case, we are called upon to interfere with the order of detention at a time when the ground of detention was not given to the petitioner. The petitioner, as on today, is not entitled to get the grounds of detention served on him. Therefore, the arguments based on the decisions arising out of detention orders passed under Maintenance of Internal Security Act, Essential Commodities Act, etc. cited by the learned counsel are not relevant to the issue before us. Those decisions are not of any asistance in deciding the issue. In view of what has been stated above, we quash the order in C.M.P 30454/1994 in O.P 17244/1994 and dismiss O.P 17244/1994. O.P 16455/1004 is one filed by the wife of the petitioner in O.P 17244/1994. The petitioner therein had filed a representation before the State Government to get the order of detention passed against her husband revoked. Since that representation was not disposed of, she moved this Original Petition for the issuance of a writ of mandamus directing the respondent to consider and pass final order on that representation. That representation has been disposed of by the Government on 2-11-1994 and that fact was communicated to her in Government letter No. 71576.SSA1/94.Home dated 29-11-94. In view of that order, O.P 16455/94 has become infructuous. Accordingly it is dismissed.

13. Writ Appeal and Original Petitions are disposed of as indicated above. Dismissed.

14. Immediately after the judgment was pronounced learned counsel representing the petitioner made an oral application for certificate to file an appeal before the Supreme Court. We do not think that any substantial questions of law of general importance which needs to be decided by the Supreme Court arise in these matters. So, the request is declined.

15. Leave declined.