SUBHASH POPATLAL DAVE Vs UNION OF INDIA & ANR.
Bench: ALTAMAS KABIR,GYAN SUDHA MISRA,J. CHELAMESWAR
Case number: Writ Petition (crl.) 137 of 2011
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL) NO.137 OF 2011
SUBHASH POPATLAL DAVE … PETITIONER VS.
UNION OF INDIA & ANR. … RESPONDENTS WITH
W.P. (CRL) NOS.35, 138, 220 & 249 OF 2011 AND W.P. (CRL) NO.14 OF 2012
WITH Crl.A. NO.932 OF 2013 (@ SLP (CRL) NO.1909 OF 2011) Crl.A. NO.931 OF 2013 (@ SLP (CRL) NO.1938 OF 2011) Crl.A. NO.930 OF 2013 (@ SLP (CRL) NO.2442 OF 2012)
AND Crl.A. NOS. 961-962 OF 2013 @ SLP(CRL)NOS.2091-2092 OF 2012
WITH TRANSFERRED CASE (CRL.) NOS.2-3 OF 2013 @ TRANSFER PETITION (CRL.) NOS.38-39/2013
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J U D G M E N T ALTAMAS KABIR, CJI.
1. Leave granted in the Special Leave Petitions.
Transfer Petition (Crl.) Nos.38-39 are allowed.
2. The common thread which runs through these
matters being heard together is the challenge
thrown in each matter to detention orders passed
either against the Petitioners themselves or the
persons represented by them. The common question
of law involved in these Appeals, Writ Petitions
and Transfer Petitions is whether a detention order
passed under the provisions of the Conservation of
Foreign Exchange and Prevention of Smuggling
Activities Act, 1974, hereinafter referred to as
"the COFEPOSA Act, 1974", could be challenged at
the pre-execution stage only on any of the five
exceptions carved out by this Court in Addl.
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Secretary, Govt. of India vs. Alka Subhash Gadia
[(1992) Supp. (1) SCC 496], or whether such
challenge could be maintained on other grounds as
well. The matter had come up for hearing on the
said question on several days when we had occasion
to consider the decisions referred to by the
learned Additional Solicitor General, Mr. P.P.
Malhotra in Sayed Taher Bawamiya Vs. Joint
Secretary, Government of India [(2000) 8 SCC 630]
and in the case of Union of India Vs. Atam Prakash
& Anr. [2009) 1 SCC 585], wherein it had been held
that the grounds of challenge to a detention order
at the pre-execution stage could only be confined
to the five exceptions set out in Alka Subhash
Gadia’s case (supra). After having considered all
the said decisions and the submissions made on
behalf of the respective parties and keeping in
mind the fact that the most precious right of a
citizen is his right to freedom, we were convinced
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that the right of a detenue to challenge a
prevention detention order passed against him at
the pre-execution stage on grounds other than those
set out in paragraph 30 of the judgment in Alka
Subhash Gadia's case (supra) required further
examination. We had accordingly directed these
matters to be listed for final hearing on all the
grounds of challenge directed against the detention
orders.
3. Appearing for the Appellants and the Writ
Petitioners, Mr. Mukul Rohatgi, learned Senior
Advocate, submitted that the question as to whether
the five exceptions mentioned in Alka Subhash
Gadia's case (supra) were only illustrative and not
exhaustive had already been considered in the
common judgment dated 10th July, 2012, wherein it
was also held that the law is not static, but
dynamic. Mr. Rohatgi reiterated his earlier
submission that if a citizen's right to freedom is
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to be interfered with in the public interest, such
powers would have to be exercised with extra
caution and not simply as an alternative to the
ordinary laws of the land.
4. Mr. Rohatgi submitted that if it is to be
accepted that challenge to a detention order could
be made at the pre-execution stage only on the five
exceptions mentioned in Alka Subhash Gadia's case,
it would result in restrictions being imposed on
the powers vested in the Supreme Court under
Article 32 and in the High Courts under Article 226
of the Constitution. Mr. Rohatgi submitted that
with the passage of time since the decision
rendered in Alka Subhash Gadia's case in 1992, new
grounds of challenge, such as absence of live link
and intervention of Settlement Proceedings under
the Customs Act, 1962, have been canvassed which
could not have been contemplated in Alka Subhash
Gadia's case and cannot be ignored in the facts of
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cases now being brought before the Courts. Mr.
Rohatgi submitted that a detenue must, therefore,
be held to have the right to challenge the
detention order passed against him, at the pre-
execution stage, on different grounds in addition
to the five exceptions carved out in Alka Subhash
Gadia's case, but each matter would have to be
considered and decided on its own set of facts.
5. In all these cases, the common refrain is that
the object sought to be achieved by passing the
detention orders, were no longer relevant and had
become otiose, having regard to the fact that the
object of a detention order is not to punish a
citizen for a crime with which he had not been
charged, but to prevent him from committing such
crime in the future. Mr. Rohatgi submitted that in
these cases the said principles have been violated
and had been used by the concerned authorities as a
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convenient alternative to the ordinary laws of the
land.
6. In this background, the matter which was taken
up first and treated as the lead matter, is Writ
Petition (Crl.) No. 137 of 2011, filed by Subhash Popatlal Dave, questioning the detention order issued by the Joint Secretary, Government of India,
on 18.08.1997, under Section 3(1) of the COFEPOSA
Act, 1974.
7. Mr. Rohatgi submitted that this was a classic
example of the sheer misuse of the powers vested in
the authorities to issue orders of detention as an
alternative to the ordinary laws of the land. Mr.
Rohatgi submitted that, unless and until, it could
be shown that after the detention order was passed
the detenue had indulged in activities which were
similar to those on account whereof the detention
order had been passed, the very reason for the
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detention order stood eroded. The detention order,
which was to be valid for a period of one year,
outlived its purpose after the said period, since
there is nothing on record to show that the
proposed detenue had indulged in any activities of
a similar nature after the detention order was
passed. Mr. Rohatgi urged that there was no
existing live link between the detention order and
the intention of the authorities to detain the
detenue by virtue of such detention order. Apart
from the above, Mr. Rohatgi submitted that a
prosecution has also been commenced against the
proposed detenue before the Court of Additional
Chief Metropolitan Magistrate, Esplanade, Mumbai,
for offences alleged to have been committed under
Sections 8(1), (2), (4), 9(1)(b), 9(1)(d), 14,
27(1), 49(3),(4), 56(1) of the Foreign Exchange
Regulation Act, 1973, and the matter is now pending
before the FERA Appellate Tribunal, New Delhi. Mr.
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Rohatgi submitted that, as has been held in the
recent judgment of this Court in Rekha Vs. State of
Tamil Nadu [(2011) 5 SCC 244], when adequate
measures and remedies under the ordinary criminal
law had already been taken, there could be no
necessity for issuance of detention orders by
resorting to preventive detention law, on which
count the impugned order of detention stands
vitiated. The Petitioner prayed that the impugned
detention order No. F.673/89/97-CUS.VIII dated
18.8.1997, issued by the Joint Secretary,
Government of India, under Section 3(1) of the
COFEPOSA Act, 1974, be declared void,
unconstitutional and illegal in the interest of
justice.
8. The next case is that of Nitish Prakashchand Kothari [W.P.(Crl) No. 138 of 2011], who is himself the proposed detenue under the detention order
dated 3.12.2009. The said order has been
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challenged on several grounds, including the ground
relating to the existence of a live link between
the preventive detention order and the
circumstances prevailing today. Mr. Rohatgi
submitted that in the present case more than three
and a half years have passed since the impugned
detention order was passed and there is nothing on
record to indicate that the proposed detenue had or
was likely to indulge in activities described in
the detention order.
Accordingly, the order of detention passed in
respect of the Petitioner is required to be
quashed.
9. In Suresh D. Hotwani's case [W.P.(Crl.) No. 35 of 2011], the proposed detenue is one Nitesh Ashok
Sadarangani, and the detention order was passed on
12.3.2001. The said detention order was challenged
by the Writ Petitioner before the Bombay High
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Court, being Criminal Writ Petition No. 1645 of
2010, which dismissed the same on 5.1.2011. S.L.P.
(Crl.) No. 2442 of 2012 was filed on 29.2.2012
against the said order of dismissal of the Writ
Petition filed before the Bombay High Court.
However, in the meantime, the Petitioner also moved
the present Writ Petition [W.P.(Crl.) No. 35 of
2011] challenging the same order of detention. Mr.
Rohatgi submitted that, in fact, the challenge in
the Special Leave Petition filed before this Court
is against the judgment and order of the Bombay
High Court dismissing the challenge to the
detention order. On the other hand, Writ Petition
[W.P.(Crl.) No. 35 of 2011] challenges the same
detention order directly in this Court. Mr.
Rohatgi submitted that the cause of action for the
two proceedings are different, although, they may
both arise out of the order of detention passed
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against the proposed detenue, Nitesh Ashok
Sadarangani.
10. Mr. Rohatgi urged that the grounds for
challenge of the detention order are the same as
those in Subhash Popatlal Dave's case [W.P.(Crl.) No. 137 of 2011] to the extent that after an
interval of more than 11 years the detention order
had become stale since there is no material to
indicate that the proposed detenue had indulged in
any activity during this period which may have
given some justification to the continuance of the
concerned detention order. Mr. Rohatgi submitted
that the long interval between the passing of the
detention order and the execution of the order has
diluted the detention order and defeated the very
purpose for which it was passed. Mr. Rohatgi also
drew an analogy with the case of one Shri Nikunj
Kirti Kanaria, whose detention order was revoked at
the pre-execution stage, since the same had become
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stale owing to passage of time. Mr. Rohatgi
submitted that in the present case the live link
stood snapped as there was no explanation for the
long delay between the date of the detention order
and the failure to execute the same. Referring to
the decision of this Court in Maqsood Yusuf
Merchant Vs. Union of India[(2008) 16 SCC 31],
learned counsel submitted that this Court had set
aside the detention order under the COFEPOSA Act,
1974, because of the long delay during which there
was nothing on record to indicate that the proposed
detenue had indulged in activities similar to those
indicated in the detention order. Mr. Rohatgi
submitted that on the ground of delay in serving
the detention order, the same had lost its very
purpose and was, therefore, liable to be quashed.
11. S.L.P. (Crl.) No. 1909 of 2011 has been filed
by Anil Kailash Jain against the judgment and order dated 5.1.2011 passed by the Bombay High Court in
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Criminal Writ Petition No. 2675 of 2010, whereby
several Writ Petitions, including that filed by
Suresh D. Hotwani, were disposed of. In the instant case, the detention order was passed on
13.12.2007 and the challenge thereto was taken up
for consideration by the Bombay High Court along
with several other matters, including the Writ
Petition filed by Suresh D. Hotwani (Criminal Writ Petition No. 1645 of 2010) and Ajay Bajaj (Criminal
Writ Petition No. 103 of 2009). The same were
disposed of by the Bombay High Court by a common
judgment dated 5.1.2011. In fact, the same
arguments, as were advanced in Suresh D. Hotwani's
case, were advanced regarding the absence of a live
link between the impugned detention order and the
attempt to detain the Petitioner on the basis
thereof after an interval of six years. It was
submitted that the detention order was not
sustainable, since the very object of the detention
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order had become stale and, therefore, redundant in
the absence of any material on record to suggest
that the Petitioner had, since the passing of the
detention order, indulged in any activity, similar
to the one mentioned in the detention order, during
the intervening years.
12. S.L.P.(Crl.) No. 1938 of 2011 was filed against
the judgment and order dated 31.1.2011, passed by
the Bombay High Court in Criminal Writ Petition No.
3233 of 2010, challenging the validity of the
detention order No. PSA-1206/2/Spl-3(A) dated
21.8.2006, passed under Section 3(1) of COFEPOSA
Act, 1974. The grounds of challenge in the Writ
Petition are the same as those urged in the earlier
matters, to which reference has also been made by
the learned Judges of the Bombay High Court. One
of the questions of law, which had been raised, is
whether under the Right to Information Act, 2005,
the Petitioner was entitled to copies of the
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detention order before its execution, which
question was negated in the judgment and order
dated 10.7.2012.
13. S.L.P.(Crl.) Nos.2091-92 of 2012 is directed
against the judgment and order dated 24.2.2012,
passed by the Delhi High Court in Writ Petition
(Crl.) No. 1629 of 2011 and Criminal Misc.
Application No. 18497 of 2011 filed in the said
Writ Petition. In the Writ Petition before the
High Court, the Petitioners challenged a detention
order dated 7.10.2004, passed under Section 3(1) of
COFEPOSA Act, 1974. The High Court, while
considering the said Writ Petition and Criminal
Miscellaneous Application, took note of the fact
that the Petitioners had challenged the detention
order in a previous Writ Petition, being W.P.
(Crl.) No. 566 of 2005, which was dismissed by a
Division Bench of the Delhi High Court on 2.1.2007.
It was also noticed that after the dismissal of the
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Writ Petition, the judgment of the Division Bench
was challenged in S.L.P.(Crl.) No. 3132 of 2007,
which was also dismissed on 10.7.2007. It was also
noticed that the second Petitioner, namely, the
proposed detenue, Rajeev Verma, was residing in the
United States and was represented by his learned
Advocate, Mr. Nikhil Jain. On behalf of the Shri
Rajeev Verma, the detention order has now been
challenged in these Special Leave Petitions on
grounds which are similar to the grounds taken in
the earlier matters, namely, that seven years had
passed since the detention order had been issued
for a limited period of one year. The order was
also challenged on the ground that the High Court
had failed to appreciate the fact that an order of
preventive detention is not to punish the detenue
for having committed an offence but to prevent him
from doing so. It was submitted that the cause of
action for challenge of the detention order at this
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stage was on grounds which were totally different
from those taken in the Writ Petition before the
High Court. Reliance was placed on several
decisions of this Court in Maqsood Yusuf Merchant
(supra), Yusuf Razak Dhanani Vs. Union of India
[W.P.(Crl.) No. 132 of 2007] and Sanjeev Jain Vs.
Union of India [Crl. Appeal No. 1060 of 2010,
wherein the detention orders were quashed on
account of absence of any live link between the
detention order and the attempt now being made to
detain the proposed detenues on the basis of the
same order, without any fresh material to indicate
that after the passing of the detention order the
proposed detenues had indulged in acts, which were
similar to those indicated in the detention order.
14. Transfer Petition (Crl.) Nos. 38-39 of 2013
have been filed by one Vijay Ram Bilas Gupta, against whom a detention order, being No. PSA-
1211/CR-21(1)/SPL-3(A), was passed on 23.1.2012.
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Prior to the passing of the detention order, the
Petitioner had filed an application for settlement
of the case arising out of the Show Cause notice
dated 13.12.2011, which was allowed by the
Settlement Commission, Customs and Central Excise,
Additional Bench, Mumbai on 29.3.2012, and the
case was settled. While settling the case, the
Settlement Commission granted the Petitioner
immunity from prosecution under the Customs Act,
1962. The Writ Petition filed by the Petitioner
challenging the detention order, being W.P.(Crl.)
No. 48 of 2012, was disposed of by this Court on
4.4.2012, with leave to the Petitioner to approach
the High Court for appropriate relief, if any.
15. Pursuant to the leave granted by this Court, on
14.4.2012, the Petitioner filed Criminal Writ
Petition No. 1502 of 2012, before the Bombay High
Court, praying for quashing and setting aside the
impugned order of detention dated 23.1.2012, in
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view of the settlement of the case on payment of
the admitted duty liability. In view of the
settlement of the case, the Bombay High Court
passed an ad interim order directing the
Respondents authorities not to take coercive action
against the Petitioner, till the next date. On
13.6.2012, the Union of India filed Writ Petition
(Lodg) No. 1523 of 2012, before the Bombay High
Court, challenging the final order dated 29.3.2012,
passed by the Settlement Commission. The same is
still pending. During the pendency of the matter,
this Court, by its interim judgment dated
10.7.2012, held that the detention orders could be
challenged at the pre-execution stage even on
grounds other than the five exceptions indicated in
Alka Subhash Gadia's case (supra). Accordingly,
the Petitioner prayed for transfer of the two
pending Writ Petitions, before the Bombay High
Court, one filed by the Petitioner and the other by
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the Union of India, to be heard along with the
other matters, since the same questions of law were
involved.
16. The main challenge in the Writ Petition by the
Petitioner before the Bombay High Court was that
instead of passing a detention order for preventive
purposes, the same has been issued for punitive
purposes, since the detention order issued on
23.1.2012, was in respect of evidence recorded
between October and November, 2010, in respect
whereof the Petitioner was arrested on 2.11.2010
and enlarged on bail on 14.12.2010. It was
submitted, as in other cases, that there is nothing
on record to indicate that anything has been done
by the Petitioner, after the detention order was
passed till date. The other relevant ground of
challenge is that when the Settlement Commission
under the Customs Act, 1962, had granted
conditional immunity under Sub-section (1) of
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Section 127H of the Customs Act, there could be no
further ground for either issuing or continuing
with the detention order, which arises out of the
facts in respect of which the Settlement Commission
had granted immunity to the Petitioner.
17. Writ Petition (Crl.) No. 14 of 2012, filed by
Mohan Lal Arora, is for quashing Detention Order No. 673/18/2011-CUS.VIII dated 8.9.2011, on the
same grounds, as urged in the other matters
relating to delay in issuing the detention order on
stale grounds. It was also contended that the
Detaining Authority acted merely as a rubber stamp
of the Sponsoring Authority, without applying its
mind independently. It was further urged that, as
in other matters, the Sponsoring Authority took
recourse to an order of preventive detention,
without taking recourse to the ordinary laws of the
land available for prosecution of offences referred
to in the detention order.
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18. Writ Petition (Crl.) No. 249 of 2011 filed by
Manju R. Agarwal was in respect of her husband, Rajesh Kumar Agarwal, against whom detention order
No. PSA-1210/CR-60/SPL-3(A) had been passed on
23.12.2010, in terms of Section 3(1) of COFEPOSA
Act, 1974. The facts of this case are no different
from the facts in Transfer Petition (Crl.) Nos. 38-
39 of 2013. As in the said Transfer Petitions, in
the instant case, on the same set of accusations,
the detenue was arrested on 2.3.2010 and was,
thereafter, released on bail by the Sessions Court
on 5.4.2010. Thereafter, the proposed detenue,
along with others, approached the Settlement
Commission for settlement of the disputes in
respect of the show cause notices issued to them in
the manner contemplated under Sections 127-A to
127-M of the Customs Act, 1962. By an order dated
17.10.2011, the Settlement Commission allowed the
applications to be proceeded with and while
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imposing penalty upon the proposed detenue under
Sections 112-A and 114-F of the Customs Act, 1962,
granted full immunity to Shri Rajesh Kumar Agarwal
from payment of penalty as well as complete
immunity from prosecution under the Customs Act.
19. It was urged that the detention order has lost
its significance and relevance in view of the
immunity from prosecution granted by the Settlement
Commission under Sub-section (1) of Section 127-H
of the said Act.
20. The last of this batch of matters, which was
heard together, is Writ Petition (Crl.) No. 220 of
2011, filed by one Kamlesh N. Shah, the father of the proposed detenue, Bhavik Kamlesh Shah, against
whom Detention Order No. PSA-1211/CR-18/SPL-3(A)
was passed on 16.9.2011, under Section 3(1) of
COFEPOSA Act, 1974. The grounds of challenge to
the detention order are a little different from
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those which had been taken in the earlier matters.
In the present case, apart from the grounds of
delay, it has been indicated that on 7.12.2010, the
proposed detenue had been taken into custody and
was shown to be formally arrested on 9.12.2010, by
the Director of Revenue Intelligence, Mumbai. On
3.2.2011, he was granted bail by the Court of
Sessions and, while the matter was pending, the
impugned detention order was passed on 16.9.2011,
after a lapse of more than nine months from the
date of his arrest. The Petitioner has also taken
a ground that certain vital and material documents,
as indicated in Ground A of the Petition, had not
been placed before the Detaining Authority, as a
result of which the detention order stood vitiated
on the ground of non-application of mind.
Reference was made to the several decisions of this
Court in Asha Devi Vs. K. Shivraj [(1979) 1 SCC
222]; State of U.P. Vs. Kamal Kishore Saini [(1988)
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1 SCC 287]; and Ayya alias Ayub Vs. State of U.P.
[(1989) 1 SCC 374], and several other cases, where
this Court had quashed the orders of detention,
when relevant documents which could have had a
direct bearing on the detention order, had not been
placed before the Detaining Authority. It was
urged that, in the instant case, the retraction of
the detenue on various dates was not placed before
the Detaining Authority, which not only prejudiced
the detenue, but also resulted in the illegal order
of preventive detention being passed against him.
21. Responding to Mr. Mukul Rohatgi’s submissions
as also the submissions made by the other learned
counsel, the learned Additional Solicitor General,
Mr. P.P. Malhotra, submitted that although the
matter as far as challenge to detention orders at
the pre-detention stage on grounds other than those
categorized in Alka Subhash Gadia’s case, had been
considered earlier on 10th July, 2012, the Court was
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of the view that the matter required further
consideration. In that context, the learned
Additional Solicitor General repeated his earlier
submissions, with particular reference to the
decision of this Court in Sayed Taher Bawamiya’s
case (supra) and Atam Prakash’s case (supra),
wherein it had been held that a detention order
could be challenged at the pre-execution stage but
only with regard to the five exceptions carved out
in Alka Subhash Gadia’s case (supra).
22. In addition, Mr. Malhotra submitted that the
delay in execution of the order of detention was
mostly on account of the fact that the proposed
detenue had absconded either just before or after
the passing of the detention order, thereby making
execution difficult, or at times impossible, but,
as was held in the case of Union of India Vs. Maj.
Gen. Madan Lal Yadav [(1996) 4 SCC 127], a
detention order which had been validly passed by
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the concerned authority cannot be rendered invalid
in view of the fact that the proposed detenue had
absconded and was evading arrest. It was indicated
that the proposed detenue should under no
circumstances be allowed to take the benefit of his
own wrong. Mr. Malhotra submitted that the same
principle had also been followed by this Court in
Dropti Devi Vs. Union of India [(2012) 7 SCC 499],
where it was found that the order of detention had
been passed as far back as on 23rd September, 2009,
and though the order was preventive in nature and
the maximum period of detention was one year, the
detention order could not be executed because the
second petitioner had evaded arrest wilfully and,
he could not, therefore, take advantage of his own
conduct.
23. On the ground of the detention order having
become stale, Mr. Malhotra urged that as was
pointed out by this Court in Saeed Zakir Hussain
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Malik Vs. State of Maharashtra [(2012) 8 SCC 233],
no hard and fast rule can be laid down on the
question of delay and it will depend on the facts
of each case. The learned ASG referred to the
decision of this Court in Bhawarlal Ganeshmalji Vs.
State of Tamil Nadu [(1979) 1 SCC 465], wherein it
had been urged that the detention order was liable
to be quashed on the ground of delay since it had
been passed in 2009 and had not been executed till
that date. Mr. Malhotra pointed out that this
Court held that while it is true that the purpose
of detention under the COFEPOSA Act is not punitive
but preventive and that there must be a live and
proximate link between the grounds of detention
alleged by the Detaining Authority and the purpose
of detention, and that in appropriate cases it may
be assumed that the live link is snapped, one may
strike down an order of detention, but where the
delay is found to be on account of the recalcitrant
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conduct of the detenue in evading arrest, it may be
considered that the link had not snapped, but had
been strengthened. In the said case, the detenue
was found to be absconding and action was
accordingly taken under Section 7 of the COFEPOSA
Act and he was declared to be a proclaimed
offender. Despite the several efforts made to
apprehend the proposed detenue, he could not be
arrested till he surrendered on 1st February, 1978,
and in that context this Court held that Mr.
Jethmalani’s submissions regarding the delay in
execution of the detention order could not be
accepted. Mr. Malhotra submitted that this Court
had not only refused to quash the detention order,
but had categorically observed that it would
strengthen the link.
24. Mr. Malhotra also referred to the decisions of
this Court in Union of India Vs. Amrit Lal
Manchanda [(2004) 3 SCC 75] as also in M.
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Ahamedkutty Vs. Union of India [(1990) 2 SCC 1],
wherein it had also been observed that where the
passage of time is caused by the detenue himself by
absconding, the satisfaction of the Detaining
Authority cannot be doubted and the detention order
cannot be held to be bad on that ground. Mr.
Malhotra urged that in Union of India Vs. Arvind
Shergill [(2000) 7 SCC 601], this Court looked into
the continued validity of a detention order after a
passage of 13 years. This Court came to the
conclusion that since the proposed detenue was
himself instrumental in causing the inordinate
delay, he could not challenge the order of
detention on the ground of delay. Reference was
also made to the decisions of this Court in Vinod
K. Chawla Vs. Union of India [(2006) 7 SCC 337],
Hare Ram Pandey Vs. State of Bihar [(2004) 3 SCC
289], Naresh Kumar Goyal Vs. Union of India [(2005)
8 SCC 276] and Subhash Muljimal Gandhi Vs. L.
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Himingliana [(1994) 6 SCC 14], wherein in common it
had been held that the delay in executing the order
of detention could not be taken as a ground for
quashing of the detention order, where such delay
was occasioned by the detenue himself.
25. Mr. Malhotra submitted that in all of the
aforesaid judgments cited by him, even though there
was a delay in execution of the detention order,
yet, the same were not quashed on that account, as
the proposed detenues were wilfully evading arrest
and were absconding. Mr. Malhotra submitted that
once an order of detention had been passed, the
person against whom the detention order was
directed cannot abscond and take benefit of his own
wrong. It was further submitted that it was not
possible for anyone, other than the proposed
detenue, to know the acts which may have been
committed by the proposed detenue after the passing
of the detention order, and it was, therefore, not
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possible for the Government to keep a track of the
same and a presumption ought to be drawn against
the absconder that he is absconding with the
intention of evading his arrest. Accordingly, it
would be wrong to contend or presume that the
accused, who was absconding, would not continue or
was not continuing his prejudicial activities and
that the live and proximate link was snapped.
26. It was lastly submitted that for the purpose of
detaining a person under the COFEPOSA Act, a
Warrant of Arrest is issued under Section 4 of the
Act and the said warrant continues to be in force
unless the same is executed, withdrawn or
cancelled. Once a valid warrant had been issued,
it could not be taken as a ground to quash the
detention order simply because the detenue had been
successful in evading arrest or detention. The
learned ASG, therefore, prayed that the Writ
Petitions filed by the Petitioners, as also the
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Appeals and the Transfer Petitions, were liable to
be dismissed.
27. Out of the 11 matters heard together, detention
orders had been passed by the State of Maharashtra,
under delegated powers, in six matters. Dealing
with each case on its own merit, Mr. B.H.
Marlapalle, learned Senior Advocate, who appeared
on behalf of the State of Maharashtra in all the
matters, submitted that in Nitish Prakashchand Kothari's case [W.P.(Crl) No. 138 of 2011], the detention order had been passed under Section 3(1)
of the COFEPOSA Act, 1974, but the same was not
executed till the Petitioner himself approached
this Court. It was submitted that action under
Section 7(1)(b) of the COFEPOSA Act was taken by
the Detaining Authority on 27.1.2010, and an arrest
warrant was also issued against him. Mr.
Marlapalle submitted that the Petitioner had relied
on the revocation of the detention order passed
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35
against co-accused, Shri Tarun Popatlal Kothari,
against whom an order of detention was also passed
simultaneously on 3.12.2009, on the basis of a
common proposal. However, the said detention order
was revoked on the views expressed by the Advisory
Board. Mr. Marlapalle urged that the proposed
detenue was claiming parity with the order passed
in Shri Tarun Popatlal Kothari's case and that he had not been absconding, which caused the detention
order to become stale. Mr. Marlapale submitted
that the Petitioner had also claimed that he had
not indulged in any prejudicial activity during the
said intervening period. Furthermore, his case
could not be placed before the Advisory Board and,
there was no occasion, therefore, for the Board to
record its opinion in this case. Despite the
above, Mr. Marlapalle submitted that since the
Petitioner did not choose to challenge the
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detention order for about two years, his Petition
deserves to be dismissed.
28. With regard to Suresh Kumar Ukchand Jain's case [S.L.P. (Crl.) No. 1938 of 2011 (now Appeal)], the
detention order was passed on 21.8.2006, under
Section 3(1) of the COFEPOSA Act, and the said
order could not also be executed. Mr. Marlapalle
submitted that although the detention order had
been passed in 2006, it came to be challenged for
the first time before the Bombay High Court in
Criminal Writ Petition No. 3233 of 2010, and was
dismissed on 31.1.2011. Mr. Marlapalle submitted
that in this matter the main ground of challenge to
the detention order was the ground of delay, which
caused the order of detention to become stale.
Responding to Mr. Rohatgi's submissions, Mr.
Marlapalle contended that the delay in execution of
the detention order was partly on account of the
authorities themselves, since in the affidavit
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filed by the Detaining Authority before the High
Court, it was indicated that the detention order
had been passed on 21.8.2006, but was received in
the Office of the Commissioner of Police on
6.4.2007, and was received, in turn, by Vashi
Police Station on 20.4.2007. Mr. Marlapalle
submitted that when an attempt was made to serve
the detention order on the Appellant at his
permanent address on 30.5.2007, the Appellant was
reported not to be living at the address given and
the occupant of the room, one Neena Modi, informed
the police officer concerned that the detenue was
not staying at the said address and that the
Appellant had given five different addresses, but
the address at Vashi, Navi Mumbai had not been
furnished. However, Mr. Marlapalle accepted the
fact that there is no explanation provided as to
why the detention order could not be executed by
taking recourse to Section 7 of the COFEPOSA Act,
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1974, or why steps were not taken to declare the
Appellant as an absconder from 9.7.2007, till he
approached the High Court in Writ Petition No. 3233
of 2010.
29. In the third case, which is S.L.P.(Crl.) No.
1909 of 2011 (now Appeal), filed by one Anil Kailash Jain, the detention order was passed on 13.12.2007, on the ground of duty evasion. Mr.
Marlapalle submitted that a joint proposal had been
submitted for the preventive detention of 13
persons including the Appellant, and orders were
passed accordingly. However, while the detention
orders against the co-accused individually were
executed, in the Appellant's case, the same could
not be executed. Subsequently, orders were passed
under Section 7(1)(b) of the COFEPOSA Act and a
report under Section 7(1)(a) of the said Act was
submitted to the Judicial Magistrate, First Class,
New Delhi. Mr. Marlapalle submitted that the
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Appellant filed Criminal Writ Petition No. 2675 of
2010, at the pre-execution stage, and the same was
dismissed by the Bombay High Court on 5.1.2011, on
the basis of the decision in Alka Subhash Gadia's
case.
30. In W.P. (Crl.) No. 220 of 2011, filed by
Kamlesh N. Shah, the detention order had been passed under Section 3(1) of the COFEPOSA Act,
1974, on 16.9.2011, in regard to Bhavik Shah, the
proposed detenue. The proposed detenue, who is the
son of the Petitioner, was alleged to be a havala
operator, who had allegedly evaded customs duty to
the tune of Rs. 3 crores. Mr. Marlapalle submitted
that despite efforts to serve the detention order,
the same could not be served as the proposed
detenue remained untraceable. Summons to the
detenue were also issued by the Sponsoring
Authority and served on the family members of the
detenue. On his failure to respond to the summons,
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an order was passed under Section 7(1)(b) of the
COFEPOSA Act, on 7.12.2011. Mr. Marlapalle also
submitted that as far as the retractions made by
the purported detenue are concerned, the same were
made after he had been granted bail and copies
thereof were placed before the Additional Chief
Metropolitan Magistrate on 31.5.2011, without
copies of the same being served on the prosecutor
of the departmental representative. Mr. Marlapalle
submitted that it is obvious that the Petitioner
had knowledge of the detention order before he
applied for bail and the retractions were made
thereafter. Mr. Marlapalle submitted that the
retractions, which were sent by post, were only for
the purposes of challenging the detention order,
when it was passed.
31. W.P.(Crl.) No. 249 of 2011 has been filed by
Manju R. Agarwal, the wife of the proposed detenue, Shri Rajesh Agarwal, against whom the detention
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order was passed under Section 3(1) of the COFEPOSA
Act, on 23.10.2010. The detention order could not
be executed, till 12.12.2011, when the Writ
Petition came to be filed before this Court. Mr.
Marlapalle submitted that this is one of those
cases in which the proposed detenue had approached
the Settlement Commission under Section 127H of the
Customs Act, 1962 and a settlement had been arrived
at and the Settlement Commission had granted
immunity from prosecution under the Customs Act to
the Petitioner and the co-accused. It is on that
basis that a representation was made on 11.11.2011
for revocation of the detention order dated
23.12.2010. Mr. Marlapalle submitted that it is
not known as to whether the said representation was
decided or not. No submission was made by Mr.
Marlapalle on the issue as to whether the detention
order was sustainable after the Settlement
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Commission had granted immunity from prosecution
under the Customs Act, 1962.
32. Writ Petition (Crl.) No. 35 of 2011 and S.L.P.
(Crl.) No. 2442 of 2012 (now Appeal), have been
filed challenging the detention order passed under
Section 3(1) of the COFEPOSA Act on 12.3.2001.
Although, the petition has been filed by one Shri
Suresh D. Hotwani, the name of the proposed detenue
is Nitesh Ashok Sadarangani. The main ground of
challenge is that the detention order had become
stale since it could not be executed for nine
years. Mr. Marlapalle urged that the Writ Petition
was a duplication of the relief prayed for in the
Special Leave Petition and was not, therefore,
maintainable. Mr. Marlapalle submitted that the
detention order had earlier been challenged by the
Petitioner before the Bombay High Court in Criminal
Writ Petition No. 1645 of 2010. The Writ Petition
was finally dismissed on 5.1.2011, which order had
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43
been challenged in the Special Leave Petition, in
the first instance, and it is, thereafter, that
Writ Petition (Crl.) No. 35 of 2011 was filed on
2.2.2011 under Article 32 of the Constitution.
Accordingly, the Writ Petition is not maintainable
and is liable to be dismissed.
33. Mr. Marlapalle submitted that, on behalf of the
Detaining Authority, it had been stated on
affidavit that the detention order could not be
served on the proposed detenue, as he remained
absconding despite the steps taken to declare him
as an absconder under Sections 7(1)(a) and 7(1)(b)
of the COFEPOSA Act. Mr. Marlapalle submitted that
the question of snapping of live link was not
available to the Petitioners having regard to the
fact that the same was not a ground which came
within the five exceptions in Alka Subhash Gadia's
case. Mr. Marlapalle repeated that the passage of
time between the passing of the detention order and
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44
the challenge thrown thereto could not, by itself,
be a reason to hold that the detention order had
become stale. Whether the detention order had
become stale or not was required to be examined in
the circumstances of each case and, in any event,
the proposed detenue could not take advantage of
his own wrong by evading the detention order and
then challenging the same on the ground of delay.
34. Mr. Marlapalle urged that in Hare Ram Pandey
(supra), there was a delay of nine years, but it
was held that such delay, in itself, was
insufficient to hold that the detention order had
become stale. Learned counsel also referred to the
other decisions in Alka Subhash Gadia (supra),
Subhash Muljimal Gandhi (supra), Naresh Kumar Goyal
(supra) and also State of Maharashtra Vs. Bhavrao
Gawanda [(2008) 3 SCC 613], in which the delay
ranged between four years and seven years, but it
was held by this Court that such a ground was
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inadequate as the proposed detenue, having
absconded, could not, thereafter, asked for the
protection of the law.
35. Mr. Marlapalle lastly submitted that, in each
case, there was a likelihood of the proposed
detenues being released on bail, which was also one
of the reasons which prompted the Detaining
Authorities from passing the detention orders
impugned in these several proceedings.
36. In addition to the above, Mr. Marlapalle drew
the Courts' attention to Section 5A of the National
Security Act, 1980, hereinafter referred to as "NSA
Act, 1980", which provides that the grounds of
detention are severable on certain defined grounds
so as not to affect the validity of the detention
order as a whole. Reference was also made to
Section 7 of the Act which empowers the Central
Government to pass appropriate orders in relation
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to absconding persons, which are in pari materia
with the provisions of Section 7(1)(b) of the
COFEPOSA Act, 1974.
37. Mr. Marlapalle submitted that all the Writ
Petitions, Appeals and Transfer Petitions were
liable to be dismissed.
38. The grounds taken on behalf of the several
Petitioners/ Appellants may be encapsulated in the
following manner:
(i) That, the detention orders passed in
respect of the several proposed detenues
were challenged at the pre-detention
stage, on grounds other than those
indicated in Alka Subhash Gadia's case
(supra), and that the five exceptions
carved out in Alka Subhash Gadia's case
were illustrative and not exhaustive.
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47
(ii) Whether any live link could be said to
exist between the order of detention and
the object sought to be achieved by
treating the detention order as valid
after the passage of several years ranging
from three to sixteen years, during which
period there is no record of the proposed
detenue having undertaken any activities
similar to the ones indicated in the
detention order? In the absence of any
live link, can the detention order
survive?
(iii) Whether having absconded or evaded the
execution of the detention order, the
proposed detenue could take advantage of
such fact and challenge the detention
order, which remains unexecuted?
(iv) Once the Settlement Commission under the
Customs Act accepts a settlement and
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provides complete immunity from
prosecution under Section 127H of the
Customs Act, could the detention order be
passed or proceeded with?
(v) Whether, when the ordinary law of the land
is available, orders of preventive
detention can be passed?
(vi) Whether the provisions of Section 7 of the
COFEPOSA Act, 1974, and Section 7 of the
National Security Act, 1980, can be made
the basis for making an order of
preventive detention?
39. As far as the first ground of challenge is
concerned, we have already indicated in our earlier
order of 10th July, 2012, that the five exceptions
culled out in Alka Subhash Gadia's case were not
intended to be exclusive and that the decision in
Sayed Taher Bawamiya's case could not be accepted.
We had indicated that it was not the intention of
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the Hon'ble Judges in Alka Subhash Gadia's case to
confine the challenge at the pre-execution stage
only to the five exceptions mentioned therein, as
that would amount to stifling and imposing
restrictions on the powers of judicial review
vested in the High Courts and the Supreme Court
under Articles 226 and 32 of the Constitution.
After considering other decisions delivered on the
aforesaid proposition, after the decision in Alka
Subhash Gadia's case, we had also held that the
exercise of powers vested in the superior Courts in
judicially reviewing executive decisions and orders
cannot be subjected to any restrictions, as such
powers are untrammelled and vested in the superior
Courts to protect all citizens and non-citizens,
against arbitrary action. As submitted by Mr.
Rohatgi at the very beginning of his submissions,
we had indicated that law is never static, but
dynamic and that the right to freedom being one of
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the most precious rights of a citizen, the same
could not be interfered with as a matter of course
and even if it is in the public interest, such
powers would have to be exercised with extra
caution and not as an alternative to the ordinary
laws of the land.
40. With regard to the second, third and sixth
grounds of challenge, I had also dealt at length on
whether a preventive detention order, which was not
meant to be punitive, but preventive, could be
executed after a lapse of several years during
which period the live link between the order and
the objects sought to be achieved by executing the
order, was snapped. In my view, since it was the
intention of the Sponsoring Authorities that a
person having criminal propensities should be
prevented from indulging in the same to the
prejudice of the public at large and from also
indulging in economic offences against the Revenue,
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it would have to be established that the intention
with which the preventive detention order had been
passed continued to subsist so that the same could
be executed even at a later date. In none of the
instant cases, have the Sponsoring Authorities or
the Detaining Authorities been able to establish
that after the passing of the detention order the
proposed detenues had continued with their
activities, as enumerated in the detention orders,
which would support the proposition that the object
of the detention orders continued to be valid, even
after the lapse of several years. Having regard to
the above, where the detention orders in the
instant group of cases have not been executed for
more than two years and there is no material on
record to indicate that the proposed detenue had,
in the meantime, continued his anti-social
activities, it has to be held that the detention
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orders in respect of such proposed detenues were no
longer relevant and must be quashed.
41. As far as the fourth ground is concerned, one
has to bear in the mind that the provision of the
Customs Act and other Revenue laws are mainly aimed
at recovery of dues and penalties, payment whereof
had been avoided and it is such manner of thinking
which resulted in the amendment of the Customs Act,
1962, by the inclusion of Chapter XIVA, by Act 21
of 1998. Chapter XIVA relates to settlement of
cases and contains Sections 127A to 127N. Section
127B empowers any importer, exporter or any other
person to make an application in respect of a case
pertaining to him, to the Settlement Commission, to
have the case settled. The Settlement Commission
has been given powers to reopen completed
proceedings and, thereafter, allow the said
applications under Section 127F. In addition, the
Settlement Commission has been empowered under
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Section 127H to grant immunity from prosecution and
penalty. Section 127M lays down that any
proceeding under Chapter XIVA before the Settlement
Commission would be deemed to be a judicial
proceeding, within the meaning of Sections 193 and
228 of the Customs Act, 1962 and also for the
purposes of Section 196 of the Indian Penal Code.
42. Clearly, the object with which the said
provisions had been introduced in the Customs Act,
was not to continue with criminal prosecution or to
take other steps, if a settlement proposed by an
alleged offender was accepted by the Settlement
Commission, which granted immunity from
prosecution under the Act to the said applicant,
after considering the matter from its various
angles. Once such immunity from criminal
prosecution is granted, the question of preventive
detention for the same cause of action loses its
relevance, unless the proposed detenue under the
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provisions of the COFEPOSA Act, 1974, or any other
ancillary provisions, is involved in fresh
transgression of the law.
43. At this stage, I may take notice of the
provisions of Sections 6 and 7 of the COFEPOSA Act,
1974. Section 6 of the said Act provides as
follows:
"6. Detention order not to be invalid or inoperative on certain grounds – No detention order shall be invalid or inoperative merely by reason –
(a) That the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention, or
(b) That the place of detention of such person is outside the said limits."
44. Section 7, on the other hand, deals with
matters which are relevant to the facts of this
case, since when a detention order cannot be
executed against the proposed detenue, it may be
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presumed that he was absconding. Section 7 deals
with the powers of the Government in relation to
absconding persons. Since the same is of
considerable relevance to the facts of this case,
being one of the main grounds on which the orders
of detention have been challenged, the same is also
reproduced hereinbelow:
"7. Powers in relation to absconding persons – (1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government may–
(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides ; and thereupon the provisions of sections 82, 83, 84 & 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate ;
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(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order ; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub- section (1) shall be cognizable."
45. It will be seen from the provisions of Section
7 that if the appropriate Government has reason to
believe that a person in respect of whom a
detention order has been made, is absconding, or is
concealing himself so that the order cannot be
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executed, the Government may take recourse to the
provisions of Sections 82, 83, 84 and 85 of the
Code of Criminal Procedure and his property, as if
the order directing him that he be detained were a
warrant issued by the Magistrate. Section 7(1)(b)
also provides for penal consequences, in the event
directions given thereunder, are not complied with
by the proposed detenue.
46. Accordingly, Section 7 empowers the Government
to take recourse to either the provisions of the
Code of Criminal Procedure relating to absconding
persons or pass an order directing the person
concerned to appear before the concerned officer
and on the detenue's failure to do so, to inflict
punishment with imprisonment for a term which could
extend to one year or with fine or both.
47. The provisions of Sections 6 and 7 of the
National Security Act, 1980, are identical to the
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provisions of Sections 6 and 7 of the COFEPOSA Act,
1974.
48. In my view, the said provisions clearly
enumerate the powers vested in the Authorities when
a proposed detenue absconds. That, in my view, is
the ordinary law of the land, and not preventive
detention, which is meant to prevent the commission
of offences, and not to punish an individual for
violation of statutory provisions. Accordingly, in
my view, the submissions made on behalf of the
Union of India and the State of Maharashtra, cannot
be accepted and absconsion cannot, therefore, be
made a ground for making an order of preventive
detention. Neither in Dropti Devi's case (supra)
nor in Amrit Lal Manchanda's case or in M.
Ahamedkutty's case had the above-mentioned
provisions been brought to the notice of the
learned Judges who heard the matters, but had no
occasion to consider the same.
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49. In order to arrive at a decision in these
matters and to answer the question as to whether an
order of preventive detention can continue to
subsist after a long period had lapsed from the
date of passing of the order, it will, first of
all, be necessary to appreciate the difference
between preventive detention and the ordinary
criminal law providing for detention and arrest.
While the Constitution, which is the cornucopia of
all laws, accepts the necessity of providing for
preventive detention, it also provides certain
safeguards against arbitrariness and making use of
the provision as a tool against political
opponents. Since the said provision deprives a
citizen of some of the basic and fundamental rights
guaranteed to him under the Constitution, the
Courts have dealt with laws relating to preventive
detention with great care and caution to ensure
that the provision was not misused by the
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Investigating Authorities as an easy alternative to
proper investigation. Normally, the life of a
preventive detention order is one year. Such a
period is intended to give the detenue, who is
detained without any trial, an opportunity to
introspect and reflect into his past deeds, and to
dissuade him from indulging in the same in future.
In other words, the period of detention is intended
not to punish the detenue, but to make him realize
the impact of his earlier indiscretions on society
and to discontinue the same.
50. Both, the Revenue, as also the police
authorities, appear to be myopic in regard to the
dividing line between preventive detention and
arrest for a crime actually committed. On account
of the above, the State and its authorities have
attempted to justify the continuance of the
validity of detention orders even after the lapse
of several years after the passing of the detention
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order, citing principles such as a person cannot
take advantage of his own wrong, in support
thereof. Learned counsel for the respondent
authorities have fused the two principles together
in dealing with the question of preventive
detention. A person evading service of an order of
preventive detention cannot, in my view, be treated
with the same yard-stick as a person, accused of
having committed a criminal offence and evading
arrest to thwart the criminal process initiated
against him. The two principles stand on different
footings. In the first place, the proposed detenue
is detained without being made an accused in
connection with any particular case, but to prevent
him from committing an offence, whereas in the
second place, a person actually charged with having
committed an offence is on the run to avoid the
consequences of his criminal acts. Once this
difference is appreciated, an order of detention
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passed and remaining unexecuted for several years
becomes open to question regarding its
executability. If the intention of the authorities
in passing a detention order is to prevent the
commission of an offence by the proposed detenue in
the future, then after the passage of a number of
years, the concerned authorities will have to
consider whether the order of preventive detention
should at all be executed in the absence of any
information that the proposed detenue had continued
with unlawful activities. When the object of a
preventive detention order is to prevent the
proposed detenue from committing any offence, which
is either against the national interest or the
interest of society in the future and there is
nothing on record to indicate that the proposed
detenue had indulged in any such activity after the
order of preventive detention was passed, it would,
in my view, be illogical to pursue the execution of
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the detention order as the arrest and detention of
the proposed detenue would become irrelevant and
would not achieve the object for which it had been
passed.
51. The decisions cited by Mr. Malhotra and Mr.
Marlapalle, and in particular in Dropti Devi's case
(supra), do not help the stand taken by the
authorities in this regard. The concept of a
person being prevented from taking advantage of his
own wrong cannot, in my view, be applied in the
case of a detention order where the object of
passing such an order is quite different from
proceeding against a person charged with having
committed a criminal offence. In my view, the
continued validity of a detention order would
depend on whether the proposed detenue was in the
record books of the authorities as a person
habitually indulging in activities which were
against the national interest and society in
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general and that it was, therefore, necessary in
the public interest to detain him for a period of
one year to prevent him from continuing with such
activities and not to punish him as such. In
Dropti Devi's case (supra) and in the several other
decisions cited by the learned Additional Solicitor
General, the Court had confined itself only to the
question regarding the validity of the detention
order, and in the process appears to have missed
the main issue regarding the difference between an
order of preventive detention and the issuance of a
Warrant of Arrest against a person in connection
with a particular offence.
52. Accordingly, after taking into account the
submissions made on behalf of the respective
parties on the different aspects of the detention
orders, I am inclined to hold that not only is a
proposed detenue entitled to challenge the
detention order at the pre-execution stage, but he
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is also entitled to do so after several years had
elapsed after the passing of the detention order on
grounds other than the five grounds enumerated in
Alka Subhash Gadia's case(supra). I am also
inclined to hold that orders of detention must not,
as a matter of course, be read as an alternative to
the ordinary laws of the land to avoid the rigours
of investigation in order to make out a case for
prosecution against the proposed detenue. I also
hold that if a dispute leading to the issuance of
the detention order is settled on the basis of a
statutory provision such as Chapter XIVA of the
Customs Act, 1962 and in terms of the Statute
immunity from prosecution under Section 127H of the
Act is given, the continuance of the order of
detention would be completely illogical and even
redundant. Accordingly, in such cases, the orders
of preventive detention are liable to be quashed
along with the Warrants of Arrest and Proclamation
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and Attachment issued under Sections 82 and 83 of
the Code of Criminal Procedure.
53. In the light of the views expressed by me
hereinbefore, the matters indicated hereinbelow are
allowed and the orders of detention challenged
therein are quashed on the ground that the said
orders had become stale and the live link between
the orders of detention and the object sought to be
achieved by the said orders, stood snapped. Some
of the orders had been made thirteen years ago and
the very purpose of such detention orders had been
rendered meaningless in the absence of any material
that the proposed detenues had continued to indulge
in activities which form the basis of the
preventive detention orders. The following matters
include Appeals arising out of the Special Leave
Petitions and Writ Petitions either filed by the
detenues themselves or their agents:
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(i) Writ Petition (Crl.) No. 137 of 2011,
filed by Subhash Popatlal Dave. (ii) Writ Petition (Crl.) No. 35 of 2011,
filed by Suresh D. Hotwani. (iii) Writ Petition (Crl.) No. 138 of 2011,
filed by Nitin Prakashchand Kothari. (iv) Writ Petition (Crl.) No. 249 of 2011,
filed by Manju R. Agarwal, wife of proposed detenue, Rajesh Kumar Agarwal.
(v) Criminal Appeal @ SLP (Crl.) No. 1909 of
2011, filed by Anil Kailash Jain. (vi) Criminal Appeal @SLP(Crl.) No. 1938 of
2011, filed by Sureshkumar Ukchand Jain. (vii) Criminal Appeals @ SLP (Crl.) Nos. 2091-
2092, filed by Rajesh Verma. 54. However, the Transferred Cases @ Transfer
Petition (Crl.) Nos. 38-39 of 2013, filed by Vijay Ram Bilas Gupta, Writ Petition (Crl.) No. 220 of 2011, filed by Kamlesh N. Shah and Writ Petition
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68
(Crl.) No. 14 of 2012, filed by Mohan Lal Arora are, in my judgment, pre-mature and are disallowed
at this stage.
55. Special Leave Petition (Crl.) No. 2442 of 2012,
filed by Suresh D. Hotwani is directed against the order dated 5th January, 2011, passed by the
Division Bench of the Bombay High Court in Criminal
Writ Petition No. 1645 of 2010, rejecting the
prayer made for quashing the detention order passed
against Nitesh Ashok Sadarangani on 12.3.2001.
Since the said detention order is being quashed in
Writ Petition (Crl.) No. 35 of 2011, also filed by
the Petitioner directly against the detention
order, the order of the High Court impugned in the
Special Leave Petition has necessarily to be set
aside also. Criminal Appeal @ S.L.P.(Crl.) No.
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69
2442 of 2012 is, accordingly, allowed and the order
of the High Court impugned therein is set aside.
………………………………………………CJI. (ALTAMAS KABIR)
New Delhi Dated:July 16, 2013.
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.137/2011 ETC.ETC.
Subhash Popatlal Dave .. Petitioner
Versus
Union of India & Anr. .. Respondents
J U D G M E N T
GYAN SUDHA MISRA, J .
Having deliberated over the arguments
advanced by learned counsel for the contesting parties in
the light of the ratio of the authoritative pronouncements of
this Court referred to hereinafter on the issue involved
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71
herein which also includes a Constitution Bench judgment, I
have not been able to persuade myself to accept the
position that the Writ Petitions, Appeals and Transfer Cases
under consideration are fit to be allowed.
2. A common question initially arose in all these
matters as to whether detention order passed under the
provisions of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act 1974 (shortly referred
to as ‘the COFEPOSA Act 1974) could be challenged at the
pre-execution stage confined to the five exceptions carved
out by this Court in the case of Additional Secretary to
the Govt. of India And Ors. vs. Alka Subhash Gadia
And Anr. 1992 Supp (1) SCC 496 or whether such
challenge could be maintained inter alia on other grounds.
This Court (Bench) has already delivered a judgment on
this question vide judgment and order dated 10.07.2012
reported in (2012) 7 SCC 533 that the right of a proposed
detenue to challenge a preventive detention order passed
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against him may be challenged at the pre-execution stage
on grounds other than those set out in paragraph 30 of the
judgment in Alka Subhash Gadia’s case and it was held
therein that the order of preventive detention can be
challenged beyond the five conditions enumerated in Alka
Subhash Gadia’s case. To make it explicitly clear it may
be reiterated that this Court has already held that the order
of preventive detention can be challenged beyond the five
grounds which have been enumerated in the case of Alka
Subhash Gadia’s case even at the pre-execution stage.
3. However, the next important question that has
cropped up in all these petitions/appeals is as to whether the
proposed detenues having absconded or evaded the
execution of the detention order, who subsequently
challenged the order of his detention even at the pre-
execution stage after a long lapse of time could take
advantage of non-execution and challenge the detention
order which remained unexecuted. For the sake of brevity, I
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refrain from repeating the facts of each writ petition,
Appeals and transfer petition herein which have been
consolidated and heard as a batch, as they have already
been recorded in the judgment and order of Hon’ble the CJI
Justice Altamas Kabir.
4. Learned counsels representing the petitioners’
cause submitted, which again have been elaborately stated
in the judgment and order of the Hon’ble CJI, that if the
detention orders which were under challenge were no
longer relevant and had become otiose as it ceased to have
a live link between the order of detention and the
subsequent circumstances when it loses its purpose, as also
having regard to the fact that the object of a detention
order is not to punish its citizen for a crime with which he
has not been charged but to prevent him from committing
such crime in future then, whether such order of preventive
detention can be held to be valid after a long lapse of time
during which the order could not be executed as also the
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fact that it was not executed because the same was
allowed to be challenged even at the pre-execution stage,
for any ground available to the proposed detenue. Hence, if
such order could not be executed as the detenue was
evading execution by absconding or even by challenging
it in a court of law on any ground available to him under the
law, then whether such order of detention can be quashed
and set aside merely due to the fact that it remained
pending even before it was executed and consequently lost
its efficacy and purpose due to long lapse of time.
5. The life and duration of the order of preventive
detention is no doubt usually for a period of one year or
the period to the extent which may be extended. But if the
order of preventive detention gets enmeshed into litigation
by virtue of its challenge on the ground that it was fit to
be challenged even before it was executed or if the same
could not be executed on account of the fact that the order
of detention could not be served on the proposed detenue
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as he was absconding and evading his arrest, then whether
such detention order is fit to be quashed and set aside
merely due to efflux of time rendering the order of detention
a nullity in spite of existence of valid, legal and sustainable
grounds for issuance of the detention order.
6. There is absolutely no difficulty in accepting the
unequivocal position that the purpose of passing the order
of preventive detention is not punitive but merely
preventive which clearly means that if the authorities are
in possession of sufficient materials indicating that the
proposed detenue had been indulging in economic offences
violating the provisions and jumping the riders imposed by
the COFEPOSA Act or other Acts of similar nature, then
whether such order can be allowed to be set aside merely
due to long lapse of time accepting the plea that there is no
live link between the order sought to be quashed and the
intention of the authorities to detain the detenue by virtue of
such detention order. This Court in a series of decisions,
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some of which have been referred to hereinafter have
consistently dealt with this question and have been pleased
to hold that merely because the execution of the detention
order has taken long years before it could be executed, the
proposed detenue cannot be allowed to take advantage of
the passage of time during which the detention order remain
pending and thereafter take the plea that the order of
detention is fit to be quashed due to its pendency on which
the authorities had no control specially when the order of
detention is allowed to be challenged before the
appropriate court even at the pre-execution stage on any
ground that may be available to him except of course the
materials which has weighed with the authorities to pass the
order of detention as it is obvious that justifiability of the
material cannot be gone into at the pre-execution stage
since the order of detention and the ground for such order is
yet to be served on the proposed detenue as the proposed
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detenue was absconding or evading the execution of the
order on him for one reason or the other.
7. It would be worthwhile to refer to some of the
authorities relied upon by the respondent- Union of India and
the State of Maharashtra which clearly addresses the issues
on the point involved herein. A judgment and order of the
Constitution Bench may be cited as the first and foremost
authority on the issue involved which is the matter of Sunil
Fulchand Shah vs. Union of India, (2000) 3 SCC 409
wherein the Constitution Bench observed that a person may
try to abscond and thereafter take a stand that period for
which detention was directed is over and, therefore, order
of detention is infructuous. It was clearly held that the
same plea even if raised deserved to be rejected as without
substance. It should all the more be so when the detenu
stalled the service of the order and/or detention in
custody by obtaining orders of the court. In fact, in Sayed
Taher Bawamiya vs. Govt. of India, (2000) 8 SCC 630,
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the factual position shows that 16 years had elapsed yet
this Court rejected the plea that the order had become
stale.
8. These aspects were once again highlighted in
Hare Ram Pandey vs. State of Bihar & Ors., (2004) 3
SCC 289, Union of India vs. Amrit Lal Manchanda &
Anr., (2004) 3 SCC 75 and Union of India vs. Vidya
Bagaria (2004) 5 SCC 577. In yet another matter of Union
of India & Ors. vs. Atam Parkash & Anr. (2009) 1 SCC
585, the detention order was challenged at the pre-
execution stage which remained pending for long and the
High Court had allowed the writ petition filed by the
respondents detenue therein and quashed the detention
order restraining the appellants from enforcing the order.
But, this Court overruled it and held that the judgment of
the High Court was clearly unsustainable and hence was set
aside. It was further held therein that the question as to
whether it would be desirable to take the respondents
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(detenue) back to custody shall be taken by the Government
within two months and appeal filed by the Union of India was
allowed.
9. Similarly, in the case of Bhawarlal
Ganeshmalji vs. State of Tamil Nadu And Anr. (1979) 1
SCC 465, the appellant had evaded arrest and surrendered
3 years after making of the order of detention but this Court
had held that the order was still effective if detenu himself
were to be blamed for delay. It is no doubt true that in this
matter, the Court had further held that the purpose of
detention under the COFEPOSA is not punitive but
preventive and there must be a ‘live and proximate link’ so
that if there is a long and unexplained delay between the
order of detention and arrest of the detenue, the order of
detention may be struck down unless the grounds indicate
a fresh application of mind of the detaining authority to the
new situation and the changed circumstances. But where
the delay is adequately explained and is found to be the
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result of recalcitrant or refractory conduct of the detenu in
evading the arrest, there is warrant to consider that the link
is not snapped. On the contrary, it could be strengthened
and that was what precisely happened in the said case.
10. In yet another case of Vinod K Chawla vs.
Union of India & Ors., (2006) 7 SCC 337, this Court had
occasion to consider regarding the effect of delay in
execution of the detention order wherein their Lordships
held that detenu evaded arrest and absconded and in spite
of best possible efforts made by the authorities to serve
the order, the order could not be executed. Taking the
circumstances into consideration under which the order of
detention could not be served, it was held that in view of
detenue’s own act of evading arrest, delay in execution of
the order did not render the detention invalid.
11. This Court’s decision in Union of India vs.
Parasmal Rampuria, (1998) 8 SCC 402 also throws
considerable light as to what would be the proper course for
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a person to adopt when he seeks to challenge an order of
detention on the available grounds like delay in execution of
detention order, delay in consideration of the
representation and the like and while dealing with the
impact of such situations on the order of detention, it was
observed therein that these questions were really
hypothetical in nature when the order of detention had not
been executed at all and challenge is made at pre-
execution stage. Their Lordships relied upon and observed
as follows in paras 4 and 5 which is fit to be quoted herein
for facility of reference:-
“4. In our view, a very unusual order seems to have been passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under Section 3(1) of the COFEPOSA Act was passed by the authorities on 13.9.1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23.10.1996 and obtained ad interim stay of the proposed order which had remained unserved. The learned Single Judge
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after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10.1.1997 which was extended from time to time. The writ appeal has not been still disposed of.
5. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, 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…………..”
12. In the matter of Hare Ram Pandey vs. State of
Bihar & Ors., (2004) 3 SCC 289, effect of delay in
execution of detention order was the principal issue for
consideration before the court. This Court held that the plea
of delay taken by the person who himself was responsible
for the delay having adopted various dilatory tactics
cannot be accepted. In this matter, the question
regarding service of the detention order after expiry of the
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period specified therein was a subject matter of
consideration wherein it was contended that the order was
yet to be executed. This Court held that the grounds like
delay in execution of the order, delay in consideration of the
representation etc. are hypothetical in nature. Where a
person against whom detention order passed was
absconding, plea taken by him or on his behalf that the
period for which detention was directed expired, deserved
to be rejected. While considering this question, it was held
that although the nature and object of the preventive
detention order is anticipatory and non-punitive in nature,
object is to maintain public order and security of State.
This gives jurisdiction to curtail individual liberty by passing
the detention order. Order of detention is passed on the
basis of subjective satisfaction of detaining authority.
13. The legal position was reiterated in the matter of
Dropti Devi and Anr. vs. Union of India & Ors., (2012) 7
SCC 499 wherein one of the questions which arose for
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consideration was whether the detenue could be allowed to
take advantage of his own wrong on the plea that the
maximum period of detention prescribed having expired
and the detenue in the said case having failed to join
investigation despite High Court’s order would justify
questioning of such order. This Court held that the detenue
could not take advantage of his own wrong and challenge
the detention order on the plea that the purpose of
execution of detention order no longer survived as
maximum statutory period of detention would have lapsed
by then.
14. From the ratio of the aforesaid authoritative
pronouncements of the Supreme Court which also includes a
Constitution 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
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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
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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 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
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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
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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 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
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representation against the said grounds as required by Article 22(5) of the Constitution of India…….”
17. The consequence that follows from the above is
that each individual/proposed detenue will have to be served
with the order of detention which had been passed against
them alongwith the grounds and the materials relied upon
by the authorities to pass the order of detention leaving it
open to them to challenge the correctness of the order by
way of a representation before the appropriate Authority or
Court as per procedure prescribed. It is no doubt true that
the materials relied upon at the relevant time would be on
the basis of which the order of detention was passed so as
to hold whether the materials were sufficient and justified or
not but when the correctness of the order of detention is
challenged in a court of law at the pre-execution stage, then
setting aside the order of detention merely on the ground of
long lapse of time might lead to grave consequences which
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would clearly clash with the object and purpose of the
preventive detention laws.
18. Therefore, I am of the view that since this Court
has already held that the order of detention can be
challenged on any ground beyond five conditions even at
the pre-execution stage, it is in the fitness of things that the
materials relied upon by the authorities be served on the
proposed detenues so as to be considered before the
appropriate forum whether the order of detention was fit to
be sustained or not at the relevant time. In the process
what has been the activities of the proposed detenue after
the order of detention was passed against them so as to
quash or sustain the same will have to be considered by the
Authority considering the representation or the Court
examining its sustainability. If the detenues have not
indulged in any illegal nefarious activities giving rise to any
economic offence, subsequently they have also not saddled
with a fresh order of detention. But when the order of
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detention of a specific date relating to the relevant period is
under adjudication, then the materials relied upon by the
authorities at the relevant time alone should weigh with the
courts as to whether the order of detention was justified or
was fit to be quashed as that has been the consistent view
of this Court reflected in the decisions referred to
hereinbefore. It is also not possible to lose sight of the fact
that if the petitioners and the appellants had preferred not
to challenge the order of detention at the pre-execution
stage or had not evaded arrest, the grounds of detention
would have been served on them giving them a chance to
challenge the same but if the petitioners and appellants
have taken recourse to the legal remedy to challenge the
order of detention even before it was executed, it is not
open for them to contend that it should be quashed
because there is no live link between the
existing/subsequent situation and the previous situation
when the order of detention was passed overlooking that
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they succeeded in pre-empting the order by challenging it at
the pre-execution stage never allowing the matter to
proceed so as to examine the most crucial question whether
there were sufficient material or grounds to pass the order
of detention. Subsequent events or conduct in any view
would be a matter of consideration for the authorities before
whom the representation is filed after the grounds are
served on the detenue and cannot be gone into when the
only question raised is regarding the correctness and legality
of the order of detention. The alternative view is bound to
operate as a convenient tool in the hands of the law-
breakers which has not been approved earlier by this Court
in the decisions referred to earlier.
19. A fall out and consequence of the aforesaid
discussion, therefore, in my view, is that the order of
detention cannot be quashed and set aside merely due to
long lapse of time on the specious plea that there is no live
link between the order of detention and the subsequent
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situation. I am, therefore, of the considered opinion that
the order of detention is not fit to be quashed merely due to
long lapse of time specially when the orders of detention
have been allowed to be challenged even at the pre-
execution stage on any ground. It is, therefore, legally
appropriate to serve the order of detention on the
proposed detenues leaving it open to them to challenge the
same after the grounds are served on them so as to
appreciate whether there had been sufficient materials
before the detaining authorities to pass the orders of
detention which were existing at the relevant time and
approve or disapprove the same. In any view, events
subsequent to the passing of the order of detention is
neither before us nor would be relevant at this stage while
adjudging the correctness and legality of the order of
preventive detention when the said orders were passed
specially when this Court had no occasion to peruse the
materials which prompted them to pass the order of
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preventive detention. In fact, there is no material before
this Court even to arrive at a definite finding as to whether
the proposed detenue have indulged in any activity after
the passing of the order of detention nor it is relevant in
my view to take into account the subsequent events while
considering the correctness of the order of detention passed
at the relevant time as the limited issue before this Court
is whether the order of detention passed against the
proposed detenues which were challenged at the pre-
execution stage is fit to be quashed merely due to the
passage of time. It would be equally hypothetical to observe
that in case the orders of detention were served and
approved by the Advisory Board and the same were
challenged before the appropriate court, whether it would
have been open for the appropriate court to consider the
subsequent conduct of the proposed detenue in order to
hold that the order of detention was fit to be quashed.
Nevertheless, when the duty is cast upon this Court at this
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stage merely to consider whether the order of detention
could be allowed to be challenged on other grounds, than
what was delineated in Alka Subhash Gadia’s case as
also the fact whether the order of detention can be
quashed on the ground of long lapse of time, it would not be
legally appropriate in my view to hold that the order of
detention is fit to be quashed merely because there is no
live link between the existing period and situation and the
date on which the order of detention was passed. I find it
hard to ignore the ratio of authoritative pronouncements of
this Court including a Constitution Bench judgment referred
to hereinbefore on the issue holding therein that the long
lapse of time will not be a valid consideration to set aside
the order of detention and may be treated as stare decisis
on the point involved.
20. As a consequence of the analysis in regard to
the validity of the orders of detention challenged by the
petitioners and appellants herein, I deem it correct and
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legally appropriate to hold that the orders of detention are
not fit to be quashed but the same are fit to be served on
the petitioners/appellants leaving it open to them to
challenge the order of detention by taking recourse to the
remedies available to them under the law by way of an
independent proceeding including a representation against
the order of detention before the competent authority which
is the next legal stage after the order of detention is served
on the proposed detenue. Holding it otherwise, in my view,
would result into acceptance of a sordid situation akin to the
adage of “Let be gone be bygone” which cannot be
swallowed as that would clearly be defeating the very object
and purpose of the preventive detention laws encouraging
the proposed detenue to stay away and twist the arms of
law misusing the provisions to their advantage. All the
matters are consequently fit to be dismissed and are
dismissed leaving it open to the Petitioners/Appellants to
take recourse to remedies available to them in accordance
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with the provisions and procedure established by law after
the grounds of detention are served on them.
……………………..J (Gyan Sudha Misra)
New Delhi July 16, 2013
Page 98
Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION(CRL) NO. 137 OF 2011
Subhash Popatlal Dave …… Petitioner
Vs.
Union of India & Anr. …… Respondents
WITH
W.P.(CRL) NOS. 35, 138, 220 & 249 OF 2011 AND W.P.(CRL) NO. 14 of 2012
WITH
CRL.A. NO. 932 OF 2013 (@ SLP(CRL) NO. 1909 OF 2011) CRL.A. NO. 931 OF 2013 (@ SLP(CRL) NO. 1938 OF 2011) CRL.A. NO. 930 OF 2013 (@ SLP(CRL) NO. 2442 OF 2012)
AND CRL.A. NOS. 961-962 OF 2013 (@ SLP(CRL) NOS. 2091-2902 OF 2012)
WITH
TRANSFERRED CASE (CRL) NOS.2-3 OF 2013 (@ TRANSFER PETITION(CRL) NOS. 38-39 OF 2013)
J U D G M E N T
Chelameswar, J.
“The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of
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yesterday. The seesaw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court’s day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyse or impair authority to defend existence of our society, and to reject as false claims in the name of security which would undermine our freedoms and open the way to oppression…..”
----- Justice Jackson in
American Communications Association, C.I.O. Vs. Charles
T. Douds [339 US 385) [94 Led 925 at 968].
2. In my opinion, it is a statement which every judge of
Constitutional Courts vested with the authority to
adjudicate the legality of any state action challenged on
the ground that such action is inconsistent with civil
liberties guaranteed under the Constitution must always
keep in mind while exercising such authority.
3. The core question in these matters is whether this
Court would be justified in exercising its jurisdiction to
examine the legality of the action of the State in seeking
to execute preventive detention orders (passed long ago)
at the pre execution stage on the claim of each one of the
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petitioners herein that such execution would violate the
fundamental rights of the proposed detenues.
4. The facts are elaborately described in the judgment
of Hon’ble the Chief Justice of India. There is no need to
repeat. Suffice to say that an order of preventive
detention either under the COFEPOSA Act or the National
Security Act is pending unexecuted for varying periods
ranging from 2 to 10 years approximately.
5. Hence, these petitions complaining that permitting
the State to execute such preventive detention orders
would be violative of the fundamental rights under
Articles 14, 19, 21 and 22 of the Constitution guaranteed
to the proposed detenus. It is fervently argued on behalf
of the petitioners that in view of the inordinate delay in
the execution of the impugned detention orders in each of
the cases, live nexus between the purpose sought to be
achieved by the orders of preventive detention and the
cause for such orders of detention stood snapped.
6. As already noticed, in the judgment of Hon’ble the
Chief Justice of India, the essential argument of the State
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in defence is that the proposed detenus (either personally
or through proxy) may not be heard to advance such
arguments in view of the fact that such delay as is
complained of is a consequence of the fact that the
proposed detenus evaded the process of law by
absconding.
7. Personal liberty is the most valuable fundamental
right guaranteed under the Constitution. Deprivation of
such liberty is made impermissible by the Constitution
except as authorised under the provisions of Articles 20,
21 and 22. Deprivation of personal liberty by
incarceration as a penalty for the commission of an
offence is one of the recognised modes by which State can
abridge the fundamental right of personal liberty. Even in
such case the authority of the state is circumscribed by
the limitations contained under Articles 20 and 21 of the
Constitution of India.
8. Article 22 of the Constitution recognises the authority
of the State to preventively detain a person
notwithstanding the fact that such a person is neither
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convicted for the commission of any offence nor
sentenced in accordance with law. The authority of the
State to resort to such preventive detention is more
stringently regulated by the dictates of Article 22. The
nature and scope of the authority to preventively detain a
person, fell for the consideration of this Court on
innumerable occasions.
9. This Court consistently held that preventive
detention “does not partake in any manner of the nature
of punishment” but taken “by way of precaution to
prevent mischief to the community”1. Therefore,
1 (a) Khudiram Das v. State of W.B., AIR 1975 SC 550 – “…… The power of detention is clearly a preventive measure.. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. … This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of Section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not maters susceptible of objective determination and they could not be attended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot, on a review of the grounds, substitute its own opinion for that of the authority, for what is made condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority, and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi-judicial power.”
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necessarily such an action is always based on some
amount of “suspicion or anticipation”. Hence, the
satisfaction of the State to arrive at a conclusion that a
person must be preventively detained is always
subjective. Nonetheless, the legality of such subjective
satisfaction is held by this Court to be amenable to the
judicial scrutiny in exercise of the jurisdiction conferred
under Articles 32 and 226 of the Constitution on certain
limited grounds.
10. One of the grounds on which an order of preventive
detention can be declared invalid is that there is no live
nexus between (1) the material which formed the basis for
the State to record its subjective satisfaction, and (2) the
opinion of the State that it is necessary to preventively
detain a person from acting in any manner prejudicial to
the public interest or security of the State etc. In other
words, the material relied upon by the State for
1(b) In Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another 1992 Supp (1) SCC 496, para 27 reads as - 27. The preventive detention law by its very nature has always posed a challenge before the cours in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. Worse still, unlike the latter, it is resorted to prevent the possible misconduct in future, though the prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people.
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preventively detaining a person is so stale that the State
could not have rationally come to a conclusion that it is
necessary to detain a person without a charge or trial.
11. The question before us is not whether the detention
order impugned in these matters is illegal on the day of
their making on any of the grounds known to law. Whether
the execution of the preventive detention order (which
might otherwise be valid) after long lapse of time
reckoned from the date of the detention order would
render the detention order itself illegal or would render
the execution of the detention order illegal.
12. It is the settled position of law declared by this Court
in a number of cases that absence of live nexus between
material forming the basis and the satisfaction (opinion) of
the State that it is necessary to preventively detain a
person is definitely fatal to the preventive detention order.
All those cases where Courts have quashed the orders of
preventive detention on the theory of lack of ‘live nexus’
are cases where the detention orders were executed but
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not cases of non-execution of the detention orders for a
long lapse of time after such orders came to be passed.
13. Whether the test of live nexus developed by this
Court in the context of examining the legality of the order
of preventive detention can be automatically applied to
the question of the legality of the execution of the
preventive detention orders where there is a considerable
time gap between the passing of the order of preventive
detention and its execution is the real question involved in
these matters. To answer the question, we must analyse
the probable reason for the delay in executing the
preventive detention orders.
14. There could be two reasons which may lead to a
situation by which the preventive detention order passed
by the competent authorities under the various
enactments could remain unexecuted, (1) the absconding
of the proposed detenu from the process of law (2) the
apathy of the authorities responsible for the
implementation of the preventive detention orders.
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15. The legislature was conscious of the fact that it can
happen in some cases that the execution of the preventive
detention order could be scuttled by the proposed
detention either by concealing himself or absconding from
the process of law. Therefore, specific provisions are
made in this regard under various enactments dealing
with the preventive detention. For example, Section 7 of
the COFEPOSA Act recognises such a possibility and
stipulates as follows:-
“7. Powers in relation to absconding persons – (1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government may –
(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 & 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate;
(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance
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therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both.
(2)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (1) shall be cognizable.”
16. It can be seen from the said section that in a case
where proposed detenu is absconding or concealing
himself, the Government may report the matter to the
Magistrate having jurisdiction over the place where the
proposed detenu ordinarily resides. On making of such
report by the Government, the provisions of Sections 82,
83, 84 and 85 of the Code of Criminal Procedure apply to
the proposed detenu and his property, as if the order of
preventive detention is a warrant issued by the Magistrate
under the provisions of the Code of Criminal Procedure.
17. In substance, the property of the proposed detenu
could be attached and perhaps even be confiscated in an
appropriate case.
18. Apart from that the State can also by notification of
official gazette direct proposed detenu to appear before
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an officer specified in the said notification at such place
and time. Failure to comply with such notified direction on
the part of the proposed detenu - without a reasonable
cause - is made an offence punishable either with
imprisonment for a term extending upto one year or with
fine or both.
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
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orders are themselves rendered illegal, on the basis of the
live nexus theory (which, in my opinion, is valid only for
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.
20. This question fell for consideration of this Court on
more than one occasion. In Bhawarlal Ganeshmalji Vs.
State of Tamil Nadu & Anr., (1979) 1 SCC 463, this Court
speaking through Justice O. Chinnappa Reddy held –
“…… where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the ‘link’ not snapped but strengthened.”
It was a case where the detenu evaded the arrest for a
priod of more than 3 years but eventually surrendered
himself before the Commissioner of Police, Madras and
then challenged the order of detention. One of the
submissions before this Court was that the detention order
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must be considered to have lapsed or ceased to be
effective in the absence of the fresh application of mind of
the detaining authority to the question of continuing
necessity for preventive detention. This Court rejected
the submission.
21. The said principle was followed in M. Ahamedkutty
Vs. Union of India & Anr., (1990) 2 SCC 1.
22. Once again in Union of India & Ors. Vs. Arvind
Shergill & Anr., (2000) 7 SCC 601, this Court held that –
“we do not think that it would be appropriate to state that merely by passage of time the nexus between the object for which the husband of the respondent is sought to be detained and the circumstances in which he was ordered to be detained has snapped”.
It was a case where the detention order was challenged at
the pre-execution stage before the High Court and the
High Court had stayed the execution of the order and the
matter was pending for some time. After losing the
matter in the High Court, the proposed detenu approached
this Court without surrendering and advanced the
argument that the live nexus snapped in view of the delay
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in executing the preventive detention order. The
submission was rejected.
23. Therefore, I 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.
24. Even in those cases where action such as the one
contemplated under Section 7 of the COFEPOSA Act is not
initiated, the same may not be the only consideration for
holding the order of preventive detention illegal. This
Court in Shafiq Ahmad Vs. District Magistrate, Meerut,
(1989) 4 SCC 556 held so and the principle was followed
subsequently in M. Ahamedkutty Vs. Union of India & Anr.,
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(1990) 2 SCC 1, wherein this Court opined that in such
cases, the surrounding circumstances must be examined2.
25. In both Shafiq Ahmad and Ahamedkutty’s cases,
these questions were examined after the execution of the
detention order. Permitting an absconder to raise such
questions at the pre-detention stage, I am afraid would
render the jurisdiction of this Court a heaven for
characters of doubtful respect for law.
26. This Court in the case of Alka Subhash Gadia (supra),
emphatically asserted that - “it is not correct to say that
the courts have no power to entertain grievances against
2 “14. In Shafiq Ahmad v. District Magistrate, Meerut relied on by appellant, it has been clearly held that what amounts to unreasonable delay depends on facts and circumstances of each case. Where reason for the delay was stated to be abscondence of the detenu, mere failure on the part of the authorities to take action under Section 7 of the National Security Act by itself was not sufficient to vitiate the order in view of the fact that the police force remained extremely busy in tackling the serious law and order problem. However, it was not accepted as a proper explanation for the delay in arresting the detenu. In that case the alleged incidents were on April 2/3/9, 1988. The detention order was passed on April 15, 1988 and the detenu was arrested on October 2, 1988. The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order. Sabyasachi Mukharji, J., as my Lord the Chief Justice then was, observed that whether there was unreasonable delay or not would depend upon the facts and circumstances of a particular situation and if in a situation the person concerned was not available and could not be served, then the mere fact that the action under Section 7 of the Act had not been taken, would not be a ground for holding that the detention order was bad. Failure to take action even if there was no scope for action under Section 7 of the COFEPOSA Act, would not by itself be decisive or determinative of the question whether there was undue delay in serving the order of detention.”
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detention order prior to its execution” This Court also
took note of the fact that such an inquiry had indeed been
undertaken by the Courts in a very limited number of
cases and in circumstances glaringly untenable at the pre-
execution stage.3
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.
3 ..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 the 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….
4 (2012) 7 SCC 533
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28. For all the above mentioned reasons, I regret my
inability to agree with the opinion delivered by Hon’ble the
Chief Justice of India. I dismiss all the matters.
……………………………J. ( J. Chelameswar )
New Delhi; July 16, 2013.
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ITEM NO.1B COURT NO.1 SECTION X [FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS WRIT PETITION (CRL.) NO(s). 137 OF 2011
SUBHASH POPATLAL DAVE Petitioner(s)
VERSUS
UNION OF INDIA & ANR. Respondent(s) WITH W.P(CRL.) NO. 138 of 2011
W.P(CRL.) NO. 35 of 2011
Crl.A.No.932/2013 arising from SLP(Crl) NO. 1909 of 2011
Crl.A.No.931/2013 arising from SLP(Crl) NO. 1938 of 2011
W.P(CRL.) NO. 220 of 2011
W.P(CRL.) NO. 249 of 2011
W.P(CRL.) NO. 14 of 2012
Crl.A.No.930/2013 arising from SLP(Crl) NO. 2442 of 2012
Crl.A.Nos.961-962/2013 arising from SLP(Crl) NOs.2091-2092 of 2012
T.C.(Crl.)Nos.2-3/2013 arising from T.P.(CRL) NOs.38-39 of 2013
Date: 16/07/2013 These Petitions were called on for JUDGMENT today.
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117
For Petitioner(s) Mr. Ravindra Keshavrao Adsure, AOR
Mr. D. Mahesh Babu, AOR
Mr. Rakesh Dahiya, AOR
Mr. Nikhil Jain, AOR
For Respondent(s) Mr. P.P. Malhotra, ASG. Ms. Ranjana Narayan, Adv. Mr. Chetan Chawla, Adv.
Mr. B. Krishna Prasad, AOR
Ms. Asha Gopalan Nair, AOR Mr. Arvind Kumar Sharma, AOR
Mr. Gopal Balwant Sathe, AOR
Dr. Kailash chand, AOR
Hon'ble the Chief Justice, Hon'ble
Mrs. Justice Gyan Sudha Misra and Hon'ble
Mr. Justice J. Chelameswar pronounced
their separate judgments. Hon'ble the
Chief Justice pronounced His judgment,
allowing the Writ Petitions, being 137,
35, 138, 249, all of 2011 and after
granting leave in Special Leave
Petitions, allowing appeals, being
Criminal Appeals @ Special Leave
Petitions (Crl.) Nos. 1909 of 2011, 1938
of 2011, 2091-2092 of 2012 and 2442 of
2012 and disallowing at this stage, being
pre-mature the following matters, being,
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118
Transferred Cases @ T.P.(Crl.)Nos.38-39
of 2013, W.P.(Crl.)No.220 of 2011 and
W.P.(Crl.)No.14 of 2012.
Hon'ble Mrs. Justice Gyan Sudha
Misra and Hon'ble Mr. Justice J.
Chelameswar, while regretting inability
to agree with the judgment of Hon'ble the
Chief Justice, pronounced separate but
concurring judgments, dismissing all the
matters, the writ petitions, appeals and
the transferred case.
(Sheetal Dhingra) (Juginder Kaur) AR-cum-PS Assistant Registrar
[Signed three Reportable Judgments are placed on the file]