Page 1

1

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

Page 2

2

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.

Page 3

3

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

Page 4

4

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

Page 5

5

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

Page 6

6

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

Page 7

7

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

Page 8

8

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.

Page 9

9

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

Page 10

10

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

Page 11

11

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

Page 12

12

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

Page 13

13

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

Page 14

14

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

Page 15

15

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

Page 16

16

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

Page 17

17

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

Page 18

18

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.

Page 19

19

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

Page 20

20

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

Page 21

21

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

Page 22

22

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.

Page 23

23

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

Page 24

24

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

Page 25

25

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)

Page 26

26

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

Page 27

27

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

Page 28

28

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

Page 29

29

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

Page 30

30

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.

Page 31

31

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.

Page 32

32

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

Page 33

33

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

Page 34

34

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

Page 35

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

Page 36

36

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

Page 37

37

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,

Page 38

38

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

Page 39

39

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,

Page 40

40

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

Page 41

41

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

Page 42

42

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

Page 43

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

Page 44

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

Page 45

45

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

Page 46

46

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.

Page 47

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

Page 48

48

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

Page 49

49

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

Page 50

50

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,

Page 51

51

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

Page 52

52

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

Page 53

53

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

Page 54

54

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

Page 55

55

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 ;

Page 56

56

(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

Page 57

57

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

Page 58

58

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.

Page 59

59

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

Page 60

60

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

Page 61

61

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

Page 62

62

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

Page 63

63

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

Page 64

64

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

Page 65

65

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

Page 66

66

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:

Page 67

67

(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

Page 68

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.

Page 69

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.

Page 70

70

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

Page 71

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

Page 72

72

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

Page 73

73

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

Page 74

74

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

Page 75

75

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,

Page 76

76

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

Page 77

77

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,

Page 78

78

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

Page 79

79

(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

Page 80

80

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

Page 81

81

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

Page 82

82

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

Page 83

83

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

Page 84

84

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

Page 85

85

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

Page 86

86

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

Page 87

87

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

Page 88

88

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

Page 89

89

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

Page 90

90

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

Page 91

91

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

Page 92

92

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

Page 93

93

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

Page 94

94

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

Page 95

95

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

Page 96

96

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

Page 97

97

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   

98

Page 99

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  

99

Page 100

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  

100

Page 101

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  

101

Page 102

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.”

102

Page 103

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.

103

Page 104

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  

104

Page 105

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.   

105

Page 106

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  

106

Page 107

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  

107

Page 108

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  

108

Page 109

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  

109

Page 110

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  

110

Page 111

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.,  

111

Page 112

(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.”

112

Page 113

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  

113

Page 114

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.

114

Page 115

115

Page 116

116

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.

Page 117

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,

Page 118

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]