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Preventive 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″= 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. 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. = (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. (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 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? = 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 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. 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 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. = 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 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 and Attachment issued under Sections 82 and 83 of the Code of Criminal Procedure.- 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 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. 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.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40586

 ALTAMAS KABIR, GYAN SUDHA MISRA, J. CHELAMESWAR
|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL) NO.137 OF 2011
1
2 SUBHASH POPATLAL DAVE … PETITIONER
VS.

 

2 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

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. 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 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 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 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 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 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. 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 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 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 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 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 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 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
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 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 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. 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 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
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 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.

 

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 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 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) 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 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 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
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 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. 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. 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 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 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 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 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 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, 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 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, 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 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 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 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 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 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 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.
(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 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 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 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, 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 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 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
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 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 ;
(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 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 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.

 

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 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 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 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 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 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 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 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:
(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 (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.
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.

 

 

 

 

 
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 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 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 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 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 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, 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 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, 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 (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 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 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 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 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 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 the fact that there had been
sufficient materials and justification for passing the order of
detention which could not be gone into for want of its execution,
then whether it is open for the proposed detenue to contend that
there is no live link between the order of detention and the
purpose for which it had been issued at the relevant time. In the
light of ratio of the decisions referred to hereinabove and the law
on preventive detention, it is essentially the sufficiency of
materials relied upon for passing the order of detention which
ought to weigh as to whether the order of detention was fit to be
quashed and set aside and merely the length of time and liberty
to challenge the same at the pre-execution stage which obviated
the execution of the order of preventive detention cannot be the
sole consideration for holding that the same is fit to be
quashed. When a proposed detenue is allowed to challenge the order
of detention at the pre-execution stage on any ground whatsoever
contending that the order of detention was legally unsustainable,
the Court will have an occasion to examine all grounds except
sufficiency of the material relied upon by the detaining
authorities in passing the order of detention which legally is the
most important aspect of the matter but cannot be gone into by the
Court as it has been allowed to be challenged at the pre-execution
stage when the grounds of detention has not even been served on
him.
15. Thus, if it is held that howsoever the grounds of
detention might be weighty and sustainable which persuaded the
authorities to pass the order of detention, the same is fit to be
quashed merely due to long lapse of time specially when the
detenue is allowed to challenge the order of detention even before
the order of detention is served on him, he would clearly be
offered with a double-edged weapon to use to his advantage
circumventing the order of detention. On the one hand, he can
challenge the order of detention at the pre-execution stage on any
ground, evade the detention in the process and subsequently would
be allowed to raise the plea of long pendency of the detention
order which could not be served and finally seek its quashing on
the plea that it has lost its live link with the order of
detention. This, in my view, would render the very purpose of
preventive detention laws as redundant and nugatory which cannot be
permitted. On the contrary, if the order of detention is allowed
to be served on the proposed detenue even at a later stage, it
would be open for the proposed detenue to confront the materials
or sufficiency of the material relied upon by the authorities for
passing the order of detention so as to contend that at the
relevant time when the order of detention was passed, the same was
based on non-existent or unsustainable grounds so as to quash the
same. But to hold that the same is fit to be quashed merely
because the same could not be executed for one reason or the
other specially when the proposed detenue was evading the detention
order and indulging in forum shopping, the laws of preventive
detention would surely be reduced into a hollow piece of
legislation which is surely not the purpose and object of the Act.
16. Therefore, in my view, the order of detention is not
fit to be quashed and should not be quashed merely due to long
lapse of time but the grounds of detention ought to be served on
him once he gains knowledge that the order of detention is in
existence so as to offer him a plank to challenge even the grounds
of detention after which the courts will have to examine whether
the order of detention which was passed at the relevant time but
could not be served was based on sufficient material justifying
the order of detention. Remedy to this situation has already been
offered by this Court in the matter of Union of India Vs. Parasmal
Rampuria, (Supra) viz. (1998) 8 SCC 402 wherein it was observed as
under:
“ the proper order which was required to be passed was to call upon
the Respondent first to surrender pursuant to the detention order
and then to have all his grievances examined on merits after he
had an opportunity to study the grounds of detention and to make
his representation against the said grounds as required by Article
22(5) of the Constitution of India…….”
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 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 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 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 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 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 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 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 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

 

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 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 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 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 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,
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 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 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.
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 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 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 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 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 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., (1990) 2 SCC 1, wherein this Court opined that
in such cases, the surrounding circumstances must be examined[2].

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 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.

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.
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.

 

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, 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]

 
———————–
[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.”

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.
[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.”
[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

———————–
1

 

 

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