REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 755 OF 2011

REKHA                                         Appellant (s)

                VERSUS

STATE OF T.NADU TR.SEC.TO GOVT. & ANR         Respondent(s)

WITH  CRIMINAL APPEAL NO. 756 of 2011 CRIMINAL APPEAL NO. 757 of 2011 CRIMINAL APPEAL NO. 759 of 2011 CRIMINAL APPEAL NO. 760 of 2011 CRIMINAL APPEAL NO. 762 of 2011 CRIMINAL APPEAL NO. 763 of 2011 CRIMINAL APPEAL NO. 764 of 2011

J U D G M E N T

MARKANDEY KATJU,  J.   

CRIMINAL APPEAL NO. 755 OF 2011

Heard learned counsel for the parties.

This  Appeal  has  come  up  in  a  reference  made  by  a  

two Judge Bench of this Court by order dated 15.03.2011.

The  detenu  in  this  Appeal  Ramakrishnan  (whose  wife  

Rekha  has  filed  this  Appeal)  has  been  detained  by  a  

detention order dated 08.04.2010 passed under the Tamil Nadu  

Prevention  of  Dangerous  Activities  of  Bootleggers,  Drug-

offenders, Forest Offenders,   Goondas,   Immoral   Traffic  

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Offenders,   Sand Offenders, and Slum Grabbers and Video  

Pirates Act, 1982, on the allegation that he was selling  

expired drugs after tampering with the labels and printing  

fresh labels showing them as non-expired drugs.  The habeas  

corpus petition filed by the wife of the detenu before the  

Madras High Court challenging the said detention order has  

been  dismissed  by  the  impugned  order  dated  23.12.2010.  

Hence, this Appeal.

Several grounds have been raised before us, but, in our  

opinion, this Appeal is liable to succeed on one ground  

itself, and hence we are not going into the other grounds.

The detention order reads as under :-

“No. 199/2010 Dated 08.04.2010

             DETENTION ORDER

Whereas I, T. Rajendran, IPS., Commissioner  of Police, Chennai Police, is satisfied that  the  person known as Tr. Ramakrishnan, male aged 35,  S/O  Devaraj,  No.  82-B,  South  Mada  Veethi,  Villivakkam,  Chennai-49  is  a  Drug  Offender  as  contemplated under Section 2(e) of the Tamil Nadu  Act 14 of 1982 and that with a view to preventing  him from acting in any manner prejudicial to the  maintenance of public order, it is necessary to  make the following order.

Now  therefore  in  exercise  of  the  powers  conferred on me by sub-section (1) of Section 3  of  the   Tamil  Nadu  Prevention  of  Dangerous  Activities of Bootleggers, Drug-offenders, Forest  Offenders,  Goondas,  Immoral  Traffic  Offenders,  Sand  Offenders,  and  Slum  Grabbers  and  Video  Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)  read with orders issued by the Government in G.O.  (D)  No.  6,  Home,  Prohibition  and  Excise  (XVI)  Department  dated  18th January,  2010  under  sub- section (2)  of  Section 3  of  the  said  Act, I hereby  direct  that  the said Drug Offender Tr.

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Ramakrishnan, S/o Devaraj, be detained and kept  in  custody  at  the  Central  Prison,  Puzhal,  Chennai.

Given under my hand and seal of this office  the 8th day of April, 2010.”

 The  relevant  part  of  the  grounds  on  which  the  said  

detention order has been made is as follows :-

“Thiru.  Elango,  M.  Pharm,  male  aged  43,  S/O  Ramasamy  is  working  as  a  Drug  Inspector,  Drug  Control  Department,  Perambur  Range,  Zone-II,  D.M.S.  Complex,  Teynampet,  Chennai-18.   On  15.03.2010,  Thiru.  Elango  appeared  before  the  Inspector  of  Police,  Crimes  P-6  Kodungaiyur  Police  Station  and  lodged  a  complaint  against  Thiruvalargal, Prabhakar @ Ravi, 2) Venkatesan,  3) Sanjay Kumar, 4) Sekar, 5) Baskar, 6) Pradeep  Kumar Chordia and 7) Meenakshi Sundaram.

In his complaint, he has stated that expired  drugs collected from the medical shops of Chennai  city and Suburban used to be dumped at dump yard  of  Corporation  ground  at  Ezhil  Nagar,  Kodungaiyur,  Chennai.   On  15.3.2010,  Thiru,  Elango received a secret information that expired  drugs  dumped  at  the  dump  yard  at  Corporation  ground, Ezhil Nagar, Kodungaiyur, Chennai, were  taken by Thiru. Prabhakar @ Ravi residing at the  first  floor  of  No.  A-6/541,  151st Street,  Muthamizh  Nagar,  Kodungaiyur,  Chennai  and  by  keeping the same with his associates tampered the  same tampering the original labels and printing  fresh labels to make it appear as though they are  not expired drugs and redistribute the same for  sale to the general public.”

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In para 4 of the grounds of detention, it is stated :-

“4. I am aware that Thiru. Ramakrishnan, is in  remand in P.6, Kodungaiyur Police Station Crime  No.  132/2010  and  he  has  not  moved  any  bail  application  so  far.   The  sponsoring  authority  has  stated  that  the  relatives  of  Thiru.  Ramakrishnan are taking action to take him on  bail  in  the  above  case  by  filing  bail  applications before the Higher courts  since in  similar cases bails were granted by the Courts  after  a  lapse  of  time.  Hence,  there  is  real  possibility  of  his  coming  out  on  bail  in  the  above case by filing a bail application before  the higher courts.  If he comes out on bail he  will indulge in further activities, which will  be  prejudicial  to  the  maintenance  of  public  health  and  order.   Further  the  recourse  to  normal criminal law would not have the desired  effect  of  effectively  preventing  him  from  indulging  in  such  activities,  which  are  prejudicial to the maintenance of public health  and order.  On the materials placed before me, I  am  fully  satisfied  that  the  said  Thiru.  Ramakrishnan is also a Drug Offender and that  there is a compelling necessity to detain him in  order  to  prevent  him  from  indulging  in  such  further  activities  in  future  which  are  prejudicial to the maintenance of public order  under  the  provisions  of  Tamil  Nadu  Act  14  of  1982.”

A perusal of the above statement in para 4 of the  

grounds of detention shows that no details have been given  

about the alleged similar cases in which bail was allegedly  

granted by the concerned court. Neither the date of the  

alleged bail orders has been mentioned therein, nor the bail  

application number, nor whether the bail orders were passed  

in respect of the co-accused on the same case,  nor  whether  

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the  bail  orders  were passed in respect  of  other  co-

accused in cases on the same footing as the case of the  

accused.  All  that  has  been  stated  in  the  grounds  of  

detention is that “in similar cases bails were granted by  

the courts”.  In our opinion, in the absence of details this  

statement is mere ipse dixit, and cannot be relied upon.  

In our opinion, this itself is sufficient to vitiate  

the detention order.

It has been held in  T.V. Sravanan alias S.A.R. Prasana  

Venkatachaariar Chaturvedi  Vs.  State through Secretary and  

Anr.,  (2006) 2 SCC 664; A. Shanthi (Smt.)  Vs.  Govt. of  

T.N. and Ors., (2006) 9 SCC 711; Rajesh Gulati  Vs.  Govt.  

of NCT of Delhi and Anr. (2002) 7 SCC 129, etc. that if no  

bail application was pending and the detenue was already, in  

fact, in jail in a criminal case, the detention order under  

the preventive detention law is illegal.  These decisions  

appear to have followed the Constitution Bench decision in  

Haradhan Saha  Vs.  State of West Bengal,  (1975) 3 SCC 198,  

wherein it has been observed (vide para 34):

“Where the concerned person is actually in jail  custody at the time when an order of detention is  passed  against  him  and  is  not  likely  to  be  released for a fair length of time, it may be  possible  to  contend  that  there  could  be  no  satisfaction  on  the  part  of  the  detaining  authority as to the likelihood of such a person  indulging  in  activities  which  would  jeopardise  the security of the State or public order.”   

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On  the  other  hand,  Mr.  Altaf  Ahmed,  learned

senior counsel appearing for the State of Tamil Nadu, has  

relied on the judgments of this Court in  A. Geetha  Vs.  

State  of T.N.  And Anr.  (2006)  7 SCC  603; and  Ibrahim  

Nazeer  Vs.  State of T.N. and Anr.,  (2006) 6 SCC 64,  

wherein it has been  held  that even if no bail application  

of the petitioner is pending  but if in similar cases bail  

has  been  granted,  then  this  is  a  good  ground  for  the  

subjective satisfaction of the detaining authority to pass  

the detention order.

In  our  opinion,  if  details  are  given  by  the  

respondent  authority  about  the  alleged  bail  orders  in  

similar cases mentioning the date of the orders, the bail  

application number, whether the bail order was passed in  

respect of  co-accused in the same case, and whether the  

case of the co-accused was on the same footing as the case  

of the petitioner, then, of course, it could be argued that  

there is likelihood of the accused being released on bail,  

because it is the normal practice of most courts that if a  

co-accused has been granted bail and his case is on the  

same footing as that of the petitioner, then the petitioner  

is  ordinarily  granted  bail.  However,  the  respondent  

authority should have given details about the alleged bail  

order in similar cases, which has not been done in the  

present case.   A  mere ipse dixit statement in the grounds

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of detention cannot sustain the detention order and has to

be ignored.

In our opinion, the detention order in question  

only  contains  ipse  dixit regarding  the  alleged  imminent  

possibility of the accused coming out on bail and there was  

no reliable material to this effect.  Hence, the detention  

order in question cannot be sustained.

Moreover,  even  if  a  bail  application  of  the  

petitioner  relating  to  the  same  case  was  pending  in  a  

criminal case the detention order can still be challenged  

on various grounds e.g. that the act in question related to  

law  and  order  and  not  public  order,  that  there  was  no  

relevant material on which the detention order was passed,  

that there was mala fides, that the order was not passed by  

a  competent  authority,  that  the  condition  precedent  for  

exercise of the power did not exist, that the subjective  

satisfaction was irrational, that there was non-application  

of  mind,  that  the  grounds  are  vague,  indefinite,  

irrelevant, extraneous, non-existent or stale, that there  

was  delay  in  passing  the  detention  order  or  delay  in  

executing it or delay in deciding the representation of the  

detenu, that the order was not approved by the government,  

that there was failure to refer the case to the Advisory  

Board or that the reference was belated, etc.

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In  our  opinion,  Article  22(3)(b)  of  the

Constitution  of   India   which   permits   preventive  

detention  is  only  an  exception  to  Article  21  of  the  

Constitution.  An  exception  is  an  exception,  and  cannot  

ordinarily nullify the full force of the main rule, which  

is the right to liberty in Article 21 of the Constitution.  

Fundamental  rights  are  meant  for  protecting  the  civil  

liberties of the people, and not to put them in jail for a  

long  period  without  recourse  to  a  lawyer  and  without  a  

trial.   As observed in R  Vs. Secy. Of State for the Home  

Dept., Ex Parte Stafford,  (1998) 1 WLR 503 (CA) :-

“The  imposition  of  what  is  in  effect  a  substantial term of imprisonment by the exercise  of  executive  discretion,  without  trial,  lies  uneasily with ordinary concepts of the rule of  law.”

   Article 22, hence, cannot be read  in isolation but  

must be read as an exception to Article 21.  An exception  

can apply only in rare and exceptional cases, and it cannot  

override the main rule.

Article  21  is  the  most  important  of  the  

fundamental rights guaranteed by the Constitution of India.  

Liberty of a citizen is a most important right won by our  

forefathers after long, historical, arduous struggles. Our  

Founding Fathers  realised  its   value  because  they  

had  seen  :8:

during  the  freedom  struggle  civil  liberties  of  our  

countrymen being trampled upon by foreigners, and that is  

why  they  were  determined  that  the  right  to  individual

liberty would be placed on the highest pedestal along with  

the  right to  life as  the basic  right of  the people  of  

India.

Right to liberty guaranteed by Article 21 implies  

that before a person is imprisoned a trial must ordinarily  

be held giving him full opportunity of hearing, and that  

too through a lawyer, because a layman would not be able to  

properly defend himself except through a lawyer.

The importance of a lawyer to enable a person to  

properly defend himself has been elaborately explained by  

this Court in A.S. Mohd. Rafi  Vs.  State of Tamilnadu, AIR  

2011 SC 308, and in  Md. Sukur Ali   Vs.  State of Assam,  

JT 2011 (2) SC 527. As observed by Mr Justice Sutherland of  

the U.S. Supreme Court in Powell  Vs.  Alabama,  287 U.S.  

45 (1932) “Even the intelligent and educated layman has  

small and sometimes no skill in the science of law”, and  

hence, without a lawyer he may be convicted though he is  

innocent.

Article  22(1)  of  the  Constitution  makes  it  a  

fundamental right of a person detained to consult and be  

defended  by  a  lawyer  of  his  choice.  But  Article  22(3)  

specifically  excludes  the  applicability of clause (1) of

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Article 22 to cases of preventive detention.  Therefore, we  

must  confine  the  power  of  preventive  detention  to  very  

narrow limits, otherwise the great right to liberty won by

our Founding Fathers, who were also freedom fighters, after  

long, arduous, historical struggles, will become nugatory.  

In  State  of  of  Maharashtra  &  Ors.  Vs.  Bhaurao  

Punjabrao Gawande, (2008) 3 SCC 613 (para 23) this Court  

observed :

“...Personal liberty is a precious right. So did  the Founding Fathers believe because, while their  first  object  was  to  give  unto  the  people  a  Constitution  whereby  a  government  was  established,  their  second  object,  equally  important,  was to protect the people against the  government.   That  is  why,  while  conferring  extensive powers on the government like the power  to declare an emergency, the power to suspend the  enforcement of fundamental rights or the power to  issue ordinances, they assured to the people a  Bill of Rights by Part III of the Constitution,  protecting  against  executive  and  legislative  despotism those human rights which they regarded  as  fundamental.  The  imperative  necessity  to  protect these rights is a lesson taught by all  history  and  all  human  experience.  Our  Constitution  makers  had  lived  through   bitter  years and seen an alien Government trample upon  human rights which the country had fought hard to  preserve.  They believed like Jefferson that “an  elective  despotism  was  not  the  Government  we  fought for”.  And, therefore, while arming the  Government with large powers to prevent anarchy  from within and conquest from without, they took  care to ensure that those powers were not abused  to mutilate the liberties of the people. (vide  A.K. Roy  Vs.  Union of India (1982) 1 SCC 271,  and Attorney General for India   Vs. Amratlal  Prajivandas,   (1994)  5  SCC  54.”  [emphasis supplied]

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In the Constitution Bench decision of this Court in  

M. Nagaraj & Ors. Vs.  Union of India & Ors. (2006) 8 SCC  

212, (para 20) this Court observed :

“It is a fallacy to regard fundamental rights as  a  gift  from  the  State  to  its  citizens.  Individuals  possess  basic  human  rights  independently of any Constitution by reason of  the basic fact that they are members of the human  race.”

In  the  9  Judge  Constitution  Bench  decision  of  this  

Court in  I.R. Coelho (dead) By LRs.  Vs.  State of T.N.,  

(2007) 2 SCC 1 (vide paragraphs 109 and 49), this Court  

observed :  

“It  is  necessary  to  always  bear  in  mind  that  fundamental rights have been considered to be the  heart and soul of the Constitution.....Fundamental  rights  occupy  a  unique  place  in  the  lives  of  civilized  societies  and  have  been  described  in  judgments as  “transcendental”, “inalienable”,  and  primordial”.  

In our opinion, Article 22(3)(b) cannot be read in  

isolation, but must be read along with Articles 19 and 21,  

vide Constitution Bench decision of this Court in  A.K. Roy  

Vs.  Union of India  (1982) 1 SCC 271 (para 70).

It  is  all  very  well  to  say  that  preventive  

detention  is  preventive  not  punitive.   The  truth  of  the  

matter, though, is :11:

that in substance a detention order of one year (or any other  

period)  is  a  punishment  of  one  year's  imprisonment.  What  

difference is it to the detenu whether his imprisonment is  

called preventive or punitive?

Mr.  Altaf  Ahmed,  learned  senior  counsel  for  the

respondents,  submitted  that  there  are  very  serious  

allegations against the detenu of selling expired drugs after  

removing the original labels and printing fresh labels to  

make them appear as though they are not expired drugs.

In this connection,  criminal cases are already going on  

against the detenu under various provisions of the Indian  

Penal Code as well as under the Drugs and Cosmetics Act, 1940  

and if he is found guilty, he will be convicted and given  

appropriate sentence.  In our opinion, the ordinary law of  

the land was sufficient to deal with this situation, and  

hence, recourse to the preventive detention law was illegal.

Mr. Altaf Ahmed, learned senior counsel, further  

submitted that the impugned detention order was passed on  

08.04.2010,  and the bail application of the detenu was also  

dismissed  on  the  same  date.  Hence,  he  submitted  that  it  

cannot be said that no bail application was pending when the  

detention order in question was passed.

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In this connection, it may be noted that there is  

nothing  on  the  record  to  indicate  whether  the  detaining  

authority was aware of the fact that the bail application of  

the accused was pending on the date when the detention order  

was passed on 08.04.2010.  On the other hand, in para 4 of

the  grounds  of  detention  it  is  mentioned  that  “Thiru.  

Ramakrishnan is in remand in crime No. 132/2010 and he has  

not moved any bail application so far”.  Thus, the detaining  

authority was not even aware whether a bail application of  

the accused was pending when he passed the detention order,  

rather  the detaining  authority passed  the detention  order  

under the impression that no bail application of the accused  

was pending but in similar cases bail had been granted by the  

courts.  We have already stated above that no details of the  

alleged similar cases has been given. Hence, the detention  

order in question cannot be sustained.

It was held in  Union of India  Vs. Paul Manickam  

and  another,  (2003)  8  SCC  342,  that  if  the  detaining  

authority is aware  of  the  fact  that the  detenu is in  

custody and the detaining authority is reasonably satisfied  

with cogent material that there is likelihood of his release  

and in view of his antecedent activities he must be detained  

to prevent him from indulging in such prejudicial activities,  

the detention order can validly be made.

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In  our  opinion,  there  is  a  real  possibility  of  

release  of  a  person  on  bail  who  is  already  in  custody  

provided he has moved a bail application which is pending.  

It follows logically that if no bail application is pending,  

then there is no likelihood of the person in custody being  

released  on  bail,  and  hence  the  detention  order  will  be

illegal.  However, there can be an exception  to this rule,  

that is, where a co-accused whose case stands on the same  

footing had been granted bail. In such cases, the detaining  

authority can reasonably conclude that there is likelihood of  

the  detenu  being  released  on  bail  even  though  no  bail  

application of his is pending, since most courts normally  

grant bail on this ground. However, details of such alleged  

similar cases must be given, otherwise the bald statement of  

the authority cannot be believed.   

Mr. Altaf Ahmed, learned senior counsel, further  

submitted that we are taking an over technical view of the  

matter,  and  we  should  not  interfere  with  the  preventive  

detention orders passed in cases where serious crimes have  

been committed.  We do not agree.  

Prevention detention is, by nature, repugnant to  

democratic ideas and an anathema to the rule of law. No such  

law  exists  in  the  USA  and  in  England  (except  during  war  

time).   Since, however, Article 22(3)(b) of the Constitution  

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of India permits preventive detention, we  cannot  hold  it  

illegal but we must confine the power of preventive detention  

within very narrow limits, otherwise we will be taking away  

the great right to liberty guaranteed by Article 21 of the  

Constitution  of  India  which  was  won  after  long,  arduous,  

historic  struggles.   It  follows,  therefore,  that  if  the  

ordinary law of the land (Indian Penal Code and other penal  

statutes) can deal with a situation, recourse to a preventive

detention law will be illegal

Whenever an order under a preventive detention law  

is challenged one of the questions the court must ask in  

deciding its legality is : Was the ordinary law of the land  

sufficient to deal with the situation ?  If the answer is in  

the affirmative, the detention order will be illegal.  In the  

present case, the charge against the detenu was of selling  

expired  drugs  after  changing  their  labels.  Surely  the  

relevant provisions in the Indian Penal Code and the Drugs  

and  Cosmetics  Act  were  sufficient  to  deal  with  this  

situation. Hence, in our opinion, for this reason also the  

detention order in question was illegal.

In this connection, it may be noted that it is true  

that the decision of the 2 Judge Bench of this Court in Biram  

Chand   Vs. State of Uttar Pradesh & Anr,  (1974) 4 SCC 573,  

was overruled by the Constitution Bench decision in Haradhan  

Saha's case (supra)   (vide  para  34).  However,  we should

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carefully analyse these decisions to correctly understand the  

legal position.

In Biram Chand's case (supra) this Court held that  

the authorities cannot take recourse to criminal proceedings  

as well as pass a preventive detention order on the same  

facts (vide para 15 of the said decision). It is this view  

which  was  reversed  by  the  Constitution  Bench  decision  in  

Haradhan Saha's case (supra).

This does not mean that the Constitution Bench laid  

down that in all cases the authorities can take recourse to  

both criminal proceedings as well as  a preventive detention  

order  even though in the view of the Court the former is  

sufficient to deal with the situation.   

This point which we are emphasizing is of extreme  

importance,  but  seems  to  have  been  overlooked  in  the  

decisions of this Court.

No doubt it has been held in the Constitution Bench  

decision  in  Haradhan  Saha's  case  (supra)  that  even  if  a  

person  is  liable  to  be  tried  in  a  criminal  court  for  

commission of a criminal offence, or is actually being so  

tried, that does not debar the authorities from passing a  

detention  order  under  a  preventive  detention  law.   This  

observation, to be understood correctly, must, however, be  

construed  in the background of the constitutional scheme in

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Articles 21 and 22 of the Constitution (which we have already  

explained).   Articles  22(3)(b)  is  only  an  exception  to  

Article 21 and it is not itself a fundamental right.  It is  

Article  21  which  is  central  to  the  whole  chapter  on  

fundamental rights in our Constitution.  The right to liberty  

means that before sending a person to prison a trial must  

ordinarily  be  held  giving  him  opportunity  of  placing  his  

defence through his lawyer.  It follows that if a person is  

liable  to  be  tried,  or  is  actually  being  tried,  for  a

criminal offence, but the ordinary criminal law (Indian Penal  

Code or other penal statutes)  will not be able to deal with  

the  situation,   then,  and  only  then,  can  the  preventive  

detention law be taken recourse to.

Hence,  the  observation  in  para  34  in  Haradhan  

Saha's  case  (supra)  cannot  be  regarded  as  an  unqualified  

statement that in every case where a person is liable to be  

tried, or is actually being tried, for a crime in a criminal  

court a detention order can also be passed under a preventive  

detention law.

It must be remembered that in cases of preventive  

detention no offence is proved and the justification of such  

detention is suspicion or reasonable probability,  and there  

is  no  conviction  which  can  only  be  warranted  by  legal  

evidence.  Preventive  detention is  often  described  as  a

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'jurisdiction of suspicion', (Vide  State of Maharashtra  Vs.  

Bhaurao Punjabrao Gawande, (supra) - para 63). The detaining  

authority  passes  the  order  of  detention  on  subjective  

satisfaction.   Since clause (3) of Article 22 specifically  

excludes the applicability of clauses (1) and (2), the detenu  

is not entitled to a lawyer or the right to be produced  

before a Magistrate within 24 hours of arrest.

To  prevent  misuse  of  this  potentially  dangerous  

power   the law of preventive detention has to be strictly

construed  and  meticulous  compliance  with  the  procedural  

safeguards, however, technical, is, in our opinion, mandatory  

and vital.   

It has been held that the history of liberty is the  

history  of  procedural  safeguards.  (See  :  Kamleshkumar  

Ishwardas Patel  Vs.  Union of India and others  (1995) 4 SCC  

51, vide para 49).  These procedural safeguards are required  

to be zealously watched and enforced by the court and their  

rigour cannot be allowed to be diluted on the basis of the  

nature of the alleged activities of the detenu.   

As observed in Rattan Singh Vs.  State of Punjab,  

(1981) 4 SCC 1981 :-

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“May be that the detenu is a smuggler whose tribe  (and  how  their  numbers  increase!)  deserves  no  sympathy since its activities have paralysed the  Indian  economy.  But  the  laws  of  preventive  detention afford only a modicum of safeguards to  persons detained under them, and if freedom and  liberty are to have any meaning in our democratic  set-up,  it  is  essential  that  at  least  those  safeguards are not denied to the detenus.”

As  observed  in  Abdul  Latif  Abdul  Wahab  Sheikh  

Vs.  B.K. Jha and another  (1987) 2 SCC 22, vide para 5, :

“...The  procedural  requirements  are  the  only  safeguards available to a detenu since the court

is  not  expected  to  go  behind  the  subjective  satisfaction  of  the  detaining  authority.   The  procedural  requirements  are,  therefore,  to  be  strictly  complied  with  if  any  value  is  to  be  attached to the liberty of the subject and the  constitutional rights guaranteed to him in that  regard....”

As observed by Mr. Justice Douglas of the United  

States  Supreme  Court  in  Joint  Anti-Fascist  Refugee  

Committee  Vs.  McGrath,   341  US  123  at  179,  “It  is  

procedure  that  spells much of the difference between rule  

of law and rule of whim or caprice.  Steadfast adherence to  

strict procedural safeguards are the main assurances that  

there will be equal justice under law.”

Procedural  rights  are  not  based  on  sentimental  

concerns for the detenu.  The procedural safeguards are not

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devised to coddle criminals or provide technical loopholes  

through which dangerous persons escape the consequences of  

their acts.  They are basically society's assurances that  

the authorities will behave properly within rules distilled  

from long centuries of concrete experiences.   

Personal liberty protected under Article 21 is so  

sacrosanct  and  so  high  in  the  scale  of  constitutional  

values that it is the obligation of the detaining authority  

to show that the impugned detention meticulously accords

with the procedure established by law.  The stringency and  

concern  of  judicial  vigilance  that  is  needed  was  aptly  

described in the following words in  Thomas Pacham Dale's  

case, (1881) 6 QBD 376, :

“Then comes the question upon the habeas corpus.  It is a general rule, which has always been acted  upon by the Courts of England, that if any person  procures the imprisonment of another he must take  care to do so by steps, all of which are entirely  regular, and that if he fails to follow every  step in the process with extreme regularity the  court  will  not  allow  the  imprisonment  to  continue.”

For  the  reasons  given  above,  this  Appeal  is  

allowed, the impugned order is set aside and the impugned  

detention order is quashed. However, we make it clear that  

this will not affect the criminal cases pending against the  

alleged accused.   

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We further direct that the concerned detenu in  

this Appeal shall be released forthwith if not required in  

any other case.

CRIMINAL APPEAL NO. 756 of 2011; CRIMINAL APPEAL NO. 757 of  2011; CRIMINAL APPEAL NO. 759 of 2011; CRIMINAL APPEAL NO.  760  of  2011;  CRIMINAL  APPEAL  NO.  762  of  2011;  CRIMINAL  APPEAL NO. 763 of 2011; CRIMINAL APPEAL NO. 764 of 2011

The Order passed in CRIMINAL APPEAL NO. 755 OF  

2011 will also govern these Appeals.

Accordingly, for the reasons given in the Order

passed in CRIMINAL APPEAL NO. 755 OF 2011, these Appeals  

are allowed, the impugned common order is set aside and the  

impugned detention orders are quashed. However, we make it  

clear that this will not affect the criminal cases pending  

against the alleged accused persons.   

We further direct that the concerned detenus in  

these Appeals shall be released forthwith if not required  

in any other case.

   ........................J.     (MARKANDEY KATJU)

  .........................J.             (SURINDER SINGH NIJJAR)

NEW DELHI;    .........................J. APRIL 05, 2011    (GYAN SUDHA MISRA)

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