W.P.(CRL) 923/2022 Page 1 of 21

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 27.01.2026

Pronounced on: 27.02.2026

+ W.P.(CRL) 923/2022

SHRI VINOD KUMAR PATHROR .....Petitioner

Through: Mr. Arvind Kumar Sharma, Sr.

Adv. with Mr.Aniteja Sharma

and Mr. Arijit Singh, Advs.

versus

UNION OF INDIA AND ANR. .....Respondents

Through: Mr. Amit Tiwari, CGSC with

Mr. Ayush Tanwar, Ms. Ayushi

Srivastava and Mr. Arpan

Narwal, Advs. for UOI.

Mr. Aditya Singla, SSC, CBIC

with Mr. Shreya Lamba, Adv.

for R-2.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

HON'BLE MR. JUSTICE RAVINDER DUDEJA

J U D G M E N T

NAVIN CHAWLA, J.

1. The present Writ Petition has been filed under Article 226 of

the Constitution of India, seeking the quashing of the detention order

bearing F. No. PD12002/02/2017- COFEPOSA dated 02.01.2018,

issued by the Joint Secretary to the Government of India, COFEPOSA

Unit, Central Economic Intelligence Bureau in the Department of

W.P.(CRL) 923/2022 Page 2 of 21

Revenue, Ministry of Finance, Government of India (hereinafter

referred to as the „impugned order‟) under Section 3(1) of the

Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (hereinafter referred to as the „COFEPOSA Act‟),

by which the petitioner was ordered to be detained and kept in Tihar

Jail, New Delhi.

2. The petitioner has also challenged the order dated 12.12.2019

passed by the learned Chief Metropolitan Magistrate (CMM), Patiala

House Courts, New Delhi in Case no. 14556/2018, titled Customs v.

Vinod Kumar Pathror, declaring the petitioner as a Proclaimed

Offender pursuant to proceedings initiated under Section 7(1) (a) of

the COFEPOSA Act.

3. The challenge to the detention order is admittedly at the pre-

execution stage, as the petitioner has not been taken into custody

pursuant to the impugned order.

CASE OF THE RESPONDENTS

4. The background of the present petition is that the Director

General of Foreign Trade (DGFT), Ministry of Commerce issues

licenses to exporters under various schemes as an incentive to them

for making exports and increasing the quantum of the same. The

licenses are also called “scrips” and carry a monetary value. The

scrips can be utilized for payment of customs duty or for the import of

any item which is in the Open General List (OGL), that is, freely

importable. These scrips are also tradable commodities by themselves

in accordance with the applicable policy.

W.P.(CRL) 923/2022 Page 3 of 21

5. It is the case of the respondents that on 09.09.2015, during a

scrutiny of licenses/scrips, certain discrepancies were detected

between the data maintained by the DGFT and the Customs Electronic

Data Interchange (EDI) system. An alert was thereafter inserted in the

system in respect of certain parties and Custom House Agents

(CHAs). Upon further scrutiny, it was gathered that the licenses/scrips

issued by the DGFT were fraudulently amended to enhance their value

after being registered against the actual value. These licenses were

mainly used by various importers of paper by utilizing the services of

one common CHA, namely M/s Kirti Cargo.

6. On the basis of the material gathered during investigation,

summons dated 15.09.2015 were issued to Shri Ramesh Chadha,

Proprietor of M/s Kirti Cargo, one Shri Sharafat Hussain, and the

petitioner herein.

7. Several summons were thereafter issued to the petitioner on

various dates, calling upon him to appear during the course of

investigation, however, the petitioner failed to appear. A search was

also conducted at the residential premises of the petitioner, wherein

though no incriminating materials were found, the petitioner was not

present at his premises, and upon asking the whereabouts of the

petitioner from his family members, the wife and father of the

petitioner informed the officers that the petitioner has not been

residing with them for very long.

8. It is further the case of the respondents that in the course of

investigation, it was gathered that the petitioner had obtained

W.P.(CRL) 923/2022 Page 4 of 21

unauthorised and illegal access to the Customs EDI system by using

login credentials of Customs officers and had tampered with the value

of genuine licenses/scrips already registered in the system, which were

later on utilized for payment of customs duties. It is further alleged

that one Shri Sharafat Hussain was involved in facilitating the

financial transactions relating to the utilisation of such scrips, and that

funds were routed through various entities. The role attributed to the

petitioner is that he was a part of the conspiracy and used to receive

funds from the company of Shri Sharafat Hussain into the shell

companies floated by the petitioner.

9. Multiple Demand-cum-Show Cause Notices were issued to the

petitioner herein between January 2016 and January 2020, calling

upon him to respond to the allegations and participate in the

proceedings, however, the petitioner neither responded to the said

notices nor appeared before the concerned officers for investigation.

10. Thereafter, a complaint dated 02.12.2015 was filed under

Sections 174 and 175 of the Indian Penal Code (IPC), 1860 for non-

compliance with the summons by Shri Sharafat Hussain and the

petitioner. The learned Additional Chief Metropolitan Magistrate

(ACMM) issued summons dated 02.02.2016 directing the petitioner to

appear in person on 15.03.2016. However, the petitioner herein neither

appeared nor responded to the summons.

11. The matter was further referred to the Directorate General of

Vigilance (DGOV) and other agencies and details of petitioner‟s

alleged role were forwarded to the Directorate of Revenue Intelligence

W.P.(CRL) 923/2022 Page 5 of 21

(DRI) for issuance of a Look Out Circular. Since the petitioner was

not appearing and cooperating in the investigation, a red alert was

issued against the petitioner.

12. Thereafter, an FIR bearing No. 0151/2016 dated 19.09.2016

was registered by the Cyber Crime Cell against the petitioner and Shri

Sharafat Hussain. An arrest warrant was issued by the learned Chief

Metropolitan Magistrate (CMM) on 29.09.2016, which could not be

executed as the petitioner could not be traced out.

13. Vide order dated 04.05.2017, the petitioner was declared a

Proclaimed Offender by the learned ACMM in the said criminal

proceedings, and a Look Out Circular dated 12.10.2017 was also

issued. Thus, on the basis of the material placed before the detaining

authority, the impugned order dated 02.01.2018 was passed.

14. The impugned order could not, however, be executed as the

whereabouts of the petitioner could not be traced. In view of the non-

execution of the impugned order, proceedings under Sections 7(1)(a)

of the COFEPOSA Act were initiated for issuing process under

Section 82 to 85 of the Code of Criminal Procedure (CrPC), 1973, and

by order dated 12.12.2019, the petitioner was declared a Proclaimed

Offender and the said order was published in the newspaper.

15. The alleged manipulation and utilisation of licences/scrips is

stated to have resulted in a loss to the government exchequer

estimated at approximately Rupees 73.55 crores, involving a large

number of scrips registered at ICD Tughlakabad.

W.P.(CRL) 923/2022 Page 6 of 21

16. It is in this factual context that the impugned detention order

came to be passed, and upon its non-execution, statutory proceedings

were initiated against the petitioner.

PRELIMINARY OBJECTIONS OF THE RESPONDENTS:

17. The learned counsel appearing for the respondents opposes the

present petition and submits that the same is not maintainable in law,

as the petitioner has sought to challenge the detention order dated

02.01.2018 at the pre-execution stage. It is submitted that the settled

position of law does not permit a proposed detenue, who has evaded

execution of the detention order, to invoke the extraordinary

jurisdiction of this Court as a matter of course.

18. It is further submitted by the learned counsel for the

respondents that only because execution of the detention order could

not be effected, one who is absconding cannot be allowed to take

advantage of non-execution of the detention order and challenge the

detention. The idea of a preventive detention order is to safeguard, and

this Court cannot invoke its Writ jurisdiction in favour of a person

who himself is evading the law. Reliance is placed on a judgment of

this Court in Mohd. Nashruddin Khan v. Union of India & Ors.,

2020: DHC:2742:DB.

19. The learned counsel for the respondents, by placing reliance on

a judgment of this Court in Pawan Gupta v. Union of India & Anr.,

2024:DHC:7969: DB, submits that a person who has deliberately

avoided execution cannot be permitted to invoke the doctrine of

snapping of live and proximate link to contend that the order has

W.P.(CRL) 923/2022 Page 7 of 21

become stale on account of delay. He further contends that where the

delay in execution is attributable to the conduct of the proposed

detenue and proceedings under Section 7 of the COFEPOSA Act have

been duly initiated, the detention order cannot be assailed at the pre-

execution stage.

20. By placing reliance on the judgment of the Supreme Court in

Subhash Popatlal Dave v. Union of India, (2012) 7 SCC 533, the

learned counsel for the respondents contend that a person who has

absconded or evaded execution of a detention order cannot be heard to

contend that the detention order has become stale on account of delay,

as such an argument would amount to permitting the law-breaker to

take advantage of his own wrong.

21. The learned counsel for the respondents further submits that the

reliance placed by the petitioner on the decision in Additional

Secretary to the Govt. of India & Ors. v. Smt. Alka Subhash Gadia

& Anr., 1992 SUPP (1) SCC 496 is misplaced. It is urged that while

the said judgment recognises limited exceptions permitting pre-

execution interference, the present case does not fall within any of

those narrowly carved exceptions, as the detention order is neither

passed for a wrong purpose nor suffers from lack of jurisdiction or

non-application of mind.

22. The learned counsel for the respondents further submits that the

detention order was passed by the competent authority, namely, the

Joint Secretary to the Government of India, duly empowered under

Section 3(1) of the COFEPOSA Act, after arriving at a subjective

W.P.(CRL) 923/2022 Page 8 of 21

satisfaction on the basis of sufficient and relevant material placed

before him by the sponsoring authority. It is contended that the

detention order was passed strictly in accordance with law and for the

specific purpose of preventing the petitioner from indulging in

prejudicial activities affecting the economic security of the country.

23. It is further submitted by the learned counsel for the

respondents that the justifiability or sufficiency of the material

forming the basis of the detention order, cannot be examined at the

pre-execution stage, particularly when the detention order is yet to be

served upon the petitioner. It is urged that permitting such a challenge

would amount to testing the subjective satisfaction of the detaining

authority prematurely, which is impermissible in law.

SUBMISSIONS ON BEHALF OF THE PETITIONER:

24. The learned counsel for the petitioner submits there has been

an inordinate delay in the execution of the detention order, as a result

of which the order has lost its very purpose as a measure of preventive

detention. Further, the respondent authorities have failed to

demonstrate what effective and bona fide steps were taken to trace the

petitioner and secure execution of the detention order.

25. By placing reliance on decisions in Subhash Popatlal Dave v.

Union of India & Anr., (2012) 7 SCC 533; Abhishek Gupta v. Union

of India & Ors., 2022: DHC:1963-DB and Alka Subhash Gadia

(supra), he contends that the courts have necessary power and have

time and again interfered in pre-execution stage of the detention order,

where the courts are prima facie satisfied of limited grounds as set out

W.P.(CRL) 923/2022 Page 9 of 21

in the above referred judgments. It is submitted by the learned counsel

for the petitioner that the present case squarely falls within the

recognised exceptions permitting pre-execution interference as laid

down, particularly in the view that the impugned detention order does

not mention anything about allegation of scrips that is alleged on the

petitioner and only mentions that petitioner is prevented from abetting

smuggling goods informer.

26. It is contended by the learned counsel for the petitioner that the

impugned detention order passed against the petitioner is dated

02.01.2018 and whereas the respondent authorities have filed an

application under Section 7(1)(a) of the COFEPOSA Act on

11.09.2018, that is, after a considerable delay of about 9 months and

respondent authorities have failed to explain the same.

27. The learned counsel for the petitioner submits that apart from

invoking proceedings under Sections 82 and 83 of the Cr.P.C., the

respondent authorities failed to take any diligent steps to execute the

detention order. Placing reliance on a decision in A. Mohammed

Farooq v. Joint Secretary to the Government of India., (2000) 2 SCC

360, it is submitted by the learned counsel for the petitioner that

unless the delay in execution is satisfactorily explained, the detention

order is liable to be set aside.

28. It is submitted by the learned counsel for the petitioner that in

the similar facts arising from this case and similar detention order, one

of the co-accused, namely, Farha Hussain, was also served with the

detention order. This Court by its judgment in Farha Hussain v.

W.P.(CRL) 923/2022 Page 10 of 21

Union of India & Ors., 2018:DHC:3621-DB, had set aside the

detention order, observing that respondent authorities had no legal

justification in passing the detention order in regard to the acts

committed as they do not observe any fraudulent activity which can

result into a detention order. He further submits that this Court in

Farha Hussain (supra) held that there could be no tampering with the

system and as such the allegations against the accused do not hold the

ground.

29. The learned counsel for the petitioner reiterates that the

detention order is liable to be set aside on account of unexplained

delay in its execution, as such delay snaps the live and proximate link

between the alleged prejudicial activities and the necessity for

preventive detention, thereby converting the detention from preventive

to punitive in character.

30. The learned counsel for the petitioner submits that this conduct

raises a serious doubt as to whether the respondent authorities were

genuinely pursuing execution of the detention order. He submits that

the preventive detention is premised on immediacy and urgency, and

where the authorities themselves fail to act promptly, the subjective

satisfaction underlying the detention order stands vitiated.

31. The learned counsel for the petitioner further submits that the

subsequent invocation of Section 7(1)(a) of the COFEPOSA Act,

alleging that the petitioner was absconding or concealing himself, was

mechanical. It is contended that resort to proclamation proceedings

under Sections 82 and 83 of the CrPC, without first exhausting

W.P.(CRL) 923/2022 Page 11 of 21

reasonable and effective steps to serve the detention order, is arbitrary

and unsustainable in law.

32. The learned counsel for the petitioner contends that the

maintainability of a Writ petition challenging a detention order prior

to execution or surrender stands settled by the Constitution Bench

decision in Alka Subhash Gadia (supra), wherein the Supreme Court

held that Article 22 of the Constitution does not restrict the powers of

the High Court under Article 226 to judicially review a detention order

even at the pre-execution stage.

33. It is further submitted by the learned counsel for the petitioner

that, the mere fact that the petitioner has been declared a Proclaimed

Offender, does not bar the maintainability of the present Writ petition,

as a proclamation order cannot eclipse constitutional remedies where

the foundational detention order itself is under challenge.

ANALAYSIS/ CONCLUSION

34. We have considered the submissions made by the learned

counsels for the parties.

35. The issue before us is, as to whether we should entertain the

present petition, which challenges the impugned order of detention at

a pre-execution stage.

36. As far as the jurisdiction of the Court to entertain a challenge to

a preventive detention order prior to its execution is concerned, the

law is now well settled inasmuch as the Supreme Court has repeatedly

held that, though there is no complete bar on the exercise of such

jurisdiction, the general principles that govern the exercise of such

W.P.(CRL) 923/2022 Page 12 of 21

jurisdiction would still be applicable, including those of self-restraint

of a Court to come to the aid of a person who is absconding from the

law. In this regard, useful reference may first be made to the judgment

of the Supreme Court in Alka Subhash Gadia (supra), wherein the

question of law as to whether the detenue or anyone on his behalf is

entitled to challenge the detention order without the detenue

submitting or surrendering to it and, if so, then what are the grounds

on which the detention order can be challenged, was considered. The

Supreme Court held that while the High Court under Article 226 of

the Constitution of India has the power to test the validity of an order

of preventive detention, it must observe certain limitations while

exercising such jurisdiction. These limitations are self-imposed as a

matter of prudence, propriety, policy, and practice. The Court held as

under: -

“30. As regards his last contention, viz., that

to deny a right to the proposed detenu to

challenge the order of detention and the

grounds on which it is made before he is taken

in custody is to deny him the remedy of

judicial review of the impugned order which

right is a part of the basic structure of the

Constitution, we find that this argument is also

not well merited based as it is on absolute

assumptions. Firstly, as pointed out by the

authorities discussed above, there is a

difference between the existence of power and

its exercise. Neither the Constitution including

the provisions of Article 22 thereof nor the Act

in question places any restriction on the

powers of the High Court and this Court to

review judicially the order of detention. The

powers under Articles 226 and 32 are wide,

and are untrammelled by any external

W.P.(CRL) 923/2022 Page 13 of 21

restrictions, and can reach any executive

order resulting in civil or criminal

consequences. However, the courts have over

the years evolved certain self-restraints for

exercising these powers. They have done so in

the interests of the administration of justice

and for better and more efficient and informed

exercise of the said powers. These self-

imposed restraints are not confined to the

review of the orders passed under detention

law only. They extend to the orders passed and

decisions made under all laws. It is in

pursuance of this self-evolved judicial policy

and in conformity with the self-imposed

internal restrictions that the courts insist that

the aggrieved person first allow the due

operation and implementation of the

concerned law and exhaust the remedies

provided by it before approaching the High

Court and this Court to invoke their

discretionary extraordinary and equitable

jurisdiction under Articles 226 and 32

respectively. That jurisdiction by its very

nature is to be used sparingly and in

circumstances where no other efficacious

remedy is available. We have while discussing

the relevant authorities earlier dealt in detail

with the circumstances under which these

extraordinary powers are used and are

declined to be used by the courts. To accept

Shri Jain's present contention would mean that

the courts should disregard all these time-

honoured and well-tested judicial self-

restraints and norms and exercise their said

powers, in every case before the detention

order is executed. Secondly, as has been

rightly pointed out by Shri Sibal for the

appellants, as far as detention orders are

concerned if in every case a detenu is

permitted to challenge and seek the stay of the

operation of the order before it is executed, the

very purpose of the order and of the law under

which it is made will be frustrated since such

W.P.(CRL) 923/2022 Page 14 of 21

orders are in operation only for a limited

period. Thirdly, and this is more important, it

is not correct to say that the courts have no

power to entertain grievances against any

detention order prior to its execution. The

courts have the necessary power and they have

used it in proper cases as has been pointed out

above, although such cases have been few and

the grounds on which the courts have

interfered with them at the pre-execution stage

are necessarily very limited in scope and

number, viz., 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

refusal by the courts to use their extraordinary

powers of judicial review to interfere with the

detention orders prior to their execution on

any other ground does not amount to the

abandonment of the said power or to their

denial to the proposed detenu, but prevents

their abuse and the perversion of the law in

question.

xxx

34. In the present case, admittedly the

proposed detenu is absconding and has been

evading the service of the detention order.

Respondent 1 who is his wife has sought to

challenge the said order because the show-

cause notice under sub-section (1) of Section 6

of the SAFEMA is issued to him, a copy of

which is also sent to her. Thus the assistance

of the High Court under Article 226 of the

Constitution is sought by respondent 1 on

behalf of the detenu to secure the order of

detention with a view to defend the

proceedings under the SAFEMA. In other

words, the proposed detenu is trying to secure

W.P.(CRL) 923/2022 Page 15 of 21

the order of detention indirectly without

submitting to it. What is further, he is also

trying to secure the grounds of detention as

well as the documents supporting them which

he cannot get unless he submits to the order of

the detention. No prima facie case is made out

either before the High Court or before us for

challenging the order of detention which

would impel the Court to interfere with it at

this pre-execution stage. Unfortunately, the

High Court disregarding the law on the

subject and the long settled principles on

which alone it can interfere with the detention

order at this stage has directed the authorities

not only to furnish to the detenu the order of

detention but also the grounds of detention

and the documents relied upon for passing the

detention order……….”

37. In Subhash Popatlal Dave (supra), the Supreme Court clarified

that the five exceptions that had been carved out in the judgment in

Alka Subhash Gadia (supra), were not intended to be exclusive as far

as the challenge to a detention order at a pre-execution stage is

concerned. However, by a ratio of 2:1 (Justice Gyan Sudha Misra and

Justice Chelameswar), it was held that though the preventive detention

order can be challenged beyond the five grounds which have been

enumerated in the case of Alka Subhash Gadia (supra), a detenue

who has absconded, cannot be allowed to challenge the said order at

the pre-execution stage taking advantage of the long lapse of time for

which it remained unexecuted. We may quote from the opinion of

Justice Gyan Sudha Misra, as under:-

“14. From the ratio of the aforesaid

authoritative pronouncements of the Supreme

Court which also includes a Constitution

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Bench judgment having a bearing and impact

on the instant matters, the question which

emerges is that if the order of detention is

allowed to be challenged on any ground by not

keeping it confined to the five conditions

enumerated in the case of Alka Subhash

Gadia except the fact that there had been

sufficient materials and justification for

passing the order of detention which could not

be gone into for want of its execution, then

whether it is open for the proposed detenue to

contend that there is no live link between the

order of detention and the purpose for which it

had been issued at the relevant time. In the

light of ratio of the decisions referred to

hereinabove and the law on preventive

detention, it is essentially the sufficiency of

materials relied upon for passing the order of

detention which ought to weigh as to whether

the order of detention was fit to be quashed

and set aside and merely the length of time

and liberty to challenge the same at the pre-

execution stage which obviated the execution

of the order of preventive detention cannot be

the sole consideration for holding that the

same is fit to be quashed. When a proposed

detenue is allowed to challenge the order of

detention at the pre-execution stage on any

ground whatsoever contending that the order

of detention was legally unsustainable, the

Court will have an occasion to examine all

grounds except sufficiency of the material

relied upon by the detaining authorities in

passing the order of detention which legally is

the most important aspect of the matter but

cannot be gone into by the Court as it has been

allowed to be challenged at the pre-execution

stage when the grounds of detention has not

even been served on him.

15. Thus, if it is held that howsoever the

grounds of detention might be weighty and

sustainable which persuaded the authorities to

pass the order of detention, the same is fit to

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be quashed merely due to long lapse of time

specially when the detenue is allowed to

challenge the order of detention even before

the order of detention is served on him, he

would clearly be offered with a double-edged

weapon to use to his advantage circumventing

the order of detention. On the one hand, he

can challenge the order of detention at the

pre-execution stage on any ground, evade the

detention in the process and subsequently

would be allowed to raise the plea of long

pendency of the detention order which could

not be served and finally seek its quashing on

the plea that it has lost its live link with the

order of detention. This, in my view, would

render the very purpose of preventive

detention laws as redundant and nugatory

which cannot be permitted. On the contrary, if

the order of detention is allowed to be served

on the proposed detenue even at a later stage,

it would be open for the proposed detenue to

confront the materials or sufficiency of the

material relied upon by the authorities for

passing the order of detention so as to contend

that at the relevant time when the order of

detention was passed, the same was based on

non-existent or unsustainable grounds so as to

quash the same. But to hold that the same is fit

to be quashed merely because the same could

not be executed for one reason or the other

specially when the proposed detenue was

evading the detention order and indulging in

forum shopping, the laws of preventive

detention would surely be reduced into a

hollow piece of legislation which is surely not

the purpose and object of the Act.

16. Therefore, in my view, the order of

detention is not fit to be quashed and should

not be quashed merely due to long lapse of

time but the grounds of detention ought to be

served on him once he gains knowledge that

the order of detention is in existence so as to

offer him a plank to challenge even the

W.P.(CRL) 923/2022 Page 18 of 21

grounds of detention after which the courts

will have to examine whether the order of

detention which was passed at the relevant

time but could not be served was based on

sufficient material justifying the order

of detention. Remedy to this situation has

already been offered by this Court in the

matter of Union of India Vs. Parasmal

Rampuria, (Supra) viz. (1998) 8 SCC 402

wherein it was observed as under:

“the proper order which was required

to be passed was to call upon the Respondent

first to surrender pursuant to the detention

order and then to have all his grievances

examined on merits after he had an

opportunity to study the grounds of detention

and to make his representation against the

said grounds as required by Article 22(5) of

the Constitution of India...”

38. Justice Chelameswar, also held as under:-

19. If a preventive detention order is to be

quashed or declared illegal merely on the

ground that the order remained unexecuted for

a long period without examining the reasons

for such non-execution, I am afraid that the

legislative intention contained in provisions

such as Section 7(b) of the COFEPOSA Act

would be rendered wholly nugatory.

Parliament declared by such provision that an

(recalcitrant) individual against whom an

order of preventive detention is issued is under

legal obligation to appear before the notified

authority once a notification contemplated

under Section 7(b) of COFEPOSA Act is

issued. We have already noticed that failure to

appear without a reasonable excuse would be

an offence and render the defaulter liable for a

punishment of imprisonment. Holding that the

preventive detention orders are themselves

rendered illegal, on the basis of the live nexus

theory (which, in my opinion, is valid only for

W.P.(CRL) 923/2022 Page 19 of 21

examining the legality of the order, viz-a-viz

the date on which the order is passed would

not only exonerate the person from the

preventive detention order but also result

in granting impunity to such person from the

subsequent offence committed by him under

the provisions such as Section 7(b) of the

COFEPOSA Act.

xxx

23. Therefore, 1 am of the opinion that those

who have evaded the process of law shall not

be heard by this Court to say that their

fundamental rights are in jeopardy. At least, in

all those cases, where proceedings such as the

one contemplated under Section 7 of the

COFEPOSA Act were initiated consequent

upon absconding of the proposed detenu, the

challenge to the detention orders on the live

nexus theory is impermissible. Permitting such

an argument would amount to enabling the

law breaker to take advantage of his own

conduct which is contrary to law.

xxx

27. The question whether the five

circumstances specified in Alka Subhash

Gadia case (supra) are exhaustive of the

grounds on which a pre-execution scrutiny of

the legality of preventive detention order can

be undertaken was considered by us earlier in

the instant case. We held that the grounds are

not exhaustive.4 But that does not persuade me

to hold that such a scrutiny ought-to be

undertaken with reference to the cases of those

who evaded the process of law.”

39. This Court in Pawan Gupta (supra), considering the above

judgment and the judgment of the Division Bench of this Court in

Mohd. Nashruddin Khan (supra), refused to exercise its jurisdiction

W.P.(CRL) 923/2022 Page 20 of 21

under Article 226 of the Constitution of India, in favour of the

petitioner therein who had also been declared as an absconder.

40. From the above, it can be gathered that while an order of

preventive detention can be challenged at a pre-execution stage, the

Court in its discretion can refuse to exercise its jurisdiction under

Article 226 of the Constitution of India in favour of a detenue who is

absconding from law.

41. In the present case, the respondents have asserted that the

petitioner was declared a Proclaimed Offender vide order dated

04.05.2017 passed by the learned ACMM, Patiala House Courts, New

Delhi and a Look Out circular dated 12.10.2017 had also been issued

against him. As the petitioner could still not be traced even after the

issuance of the Impugned Order, proceedings under Section 7(1)(a) of

the COFEPOSA Act were initiated, and by an order dated 12.12.2019,

the petitioner was again declared as a Proclaimed Offender. The

whereabouts of the petitioner are still not known and he has not

surrendered to the law.

42. We must herein note that, merely because a similar detention

order passed against a co-accused, namely, Farha Hussain, has been

quashed by this Court, the same cannot be used to invoke our

jurisdiction under Article 226 of the Constitution of India, by a

petitioner who is absconding from law. We must also note that the

order of preventive detention in the case of Farha Hussain was

quashed on its peculiar facts, including the finding of the Court that

the submissions of the respondents that the detenue therein was

W.P.(CRL) 923/2022 Page 21 of 21

deliberately avoiding summons, thereby making it necessary to issue

an order of preventive detention, were entirely without basis. The

same cannot be said in the present case.

43. For the reasons stated hereinabove, we refuse to exercise our

jurisdiction under Article 226 of the Constitution of India at a pre-

execution stage. We, however, keep it open to the petitioner to

challenge the Impugned Order in accordance with law after he has

surrendered to the same.

44. The petition is, accordingly, dismissed.

45. There shall be no order as to costs.

NAVIN CHAWLA, J.

RAVINDER DUDEJA, J.

FEBRUARY 27, 2026/rv/pb