JUDGMENT Jaspal Singh, J.
(1) The petitioner has challenged the detention order before even his arrest. According to the learned counsel appearing for the respondent-detaining authority the writ petition is not maintainable as neither the detention order has been served on the petitioner nor he has so far been arrested under the same. In support he relies upon two connected orders of a Division Bench of this court. The first is Aditya Kumar Bhandari v. Union of India & Ors. dated August27,1993 in Crl.Writ Petition No.374/93.The order runs as under :- "KEEPING in view the decision of the Supreme Court in Navalshankar Ishwarlal Dave and another vs. State of Gujarat and others, , and Full Bench decision in Ved Parkash Devkinandan Chiripal and others vs. State of Gujarat and another, , we find no merit in the petition. Dismisses."
The second order passed on October 6, 1993 was in Crl.W.P. No. 640 of 1993. It was in following terms: "THE said writ petition was rejected because in view of the judgment of the Supreme Court in Navalshankar Ishwarlal Dave and another vs. State of Gujarat and others. and Full Bench Decision in Ved Parkash Devkinandan Chiripal and others vs. State of Gujarat and another, , the petitioner did not surrender." Before I proceed further I may mention that in the earlier writ petition before the said Division Bench the ground on which the order of detention was sought to be quashed was delay in execution of the same.
(2) The learned counsel for the petitioner, however, contends that to insist that the person against whom the order is passed must first submit to the same and thereby lose his liberty, would amount to insisting upon an unreasonable condition and that even the Apex court has held that neither the Constitution nor the provisions of Cofeposa place any restriction on the powers of the High Court under Article 226 to review judicially the order of detention even prior to its execution. In support, my attention has been drawn to The Additional Secretary to the Government of India and Ors vs. Smt. Alka Subhash Gadia and Anr. and to yet another Division Bench judgment of this court in Subhash Chander vs. Union of lndia & Ors. 1991(l) Crimes 745.
(3) One thing is certain, and I say so for I entertain no doubt about it, and it is that there is a difference between the existence of a power and its exercise. That there is power under Article 226 of the Constitution to review judicially the order of detention is beyond doubt. The question is with regard to its exercise. And, when we come to this, what we find is that such power has to be exercised only in rare cases and .that too on very limited grounds. What are those grounds? The Apex court throws light on the same in Smt. Alka Subhash Gadia's case (Supra). It says: "THE courts have the necessary power and they have used it in proper cases.......... 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 (1) that the impugned order is not based under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question."
The court further observed:- "THIS still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first instance, as stated earlier, the Constitution and the valid law made there under do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the courts, as pointed out easrlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfer with the impugned order at that stage and may insist that the detenu should first submit to it."
(4) The position in law being what has been noticed by me above, the petitioner cannot claim exercise of power by this court as a matter of right. The discretion is of the court, and while exercising it, the Judge does not act mechanically. He weighs, reflects, gains impressions, tests and studies. He does not act merely as a machine which gives a result after the coin has .[ See Tedeschi, "Legal Essays" 1 (1978); Isaacs, "THE Limits of Judicial Discretion" 32 Yale L.J. 339 (1922): See also: Levy, "The Nature of Judicial Reasoning" 32 U.Chi. L.Rev. 395;396(1965) ] He does not act merely as a machine which gives a result after the coin has been deposited though, unfortunately. Professor Radin does offer that image. The learned counsel for the petitioner submits that in view of this court having earlier stayed the implementation of the order of detention and having issued Rule the petitioner can claim exercise of power by this court as a matter of right. However, I find myself unable to subscribe to this view and do feel that whatever the earlier orders may have been, the discretion remains. "The discretion of a judge is the law of Tyrants; it is always unknown, it is different from different men; it is casual and depends upon constitution and passion. In the best it is often, attimes, capricious; in the worst it is very vice, folly and madness to which human nature is liable"
as far as our courts are concerned, it is not an instrument of tyranny. The Apex court in Smt. Alka Subhash Gadia's case itself, when it spoke of such discretion, was careful to lay down that it "has to be exercised judicially on well-settled principles". And, which are those "settled principles" as far as the present matter is concerned? The principles clearly are those which have been enumerated by the Apex court in Smt. Alka Subhash Gadia's case itself and which in the preceding paragraphs I have taken care to reproduce verbatim.
(5) Is this case covered by any of the five exceptions spoken of by the Apex court in Smt.Alka Subhash Gadia's case? The learned counsel for the petitioner asserts that it is. As per him the case would fall within the fourth exception which refers to a detention order: "that is passed on vague, extraneous and irrelevant grounds". It is argued that this exception stands attracted as delay in execution of the detention order renders the ground of detention irrelevant. In support my attention has been drawn to Vijay Narain Singh v. Slate of Bihar and others 1984 SCC(Cri) 361 (366) wherein it was observed that "this court has always taken the view that remoteness in point of time makes a ground of detention irrelevant". However, to my mind, the statement:"this court has always taken the view that remoteness in point of time makes a ground of detention irrelevant" is fundamentally different in purport from: "that it is passed on vague, extraneous and irrelevant grounds". The first statement does not speak of an order having been passed on irrelevent grounds. It rather speaks of an order made irrelevent on account of remoteness in time. Like Mark Twain's East and West,I too find no meeting point between the two statements.
(6) All said and done, the writ petition would go to show that it speaks of no such exception as is found in Smt. Alka Subhash Gadia's case. However, this is not the end of the matter.
(7) As already noticed by me above, reliance has also been placed by the petitioner on a Division Bench judgment of this Court in Subhash Chander v. Union of India & Ors. 1991 (l)Crimes 745. In that case too,the challenge was at pre-arrest stage and the ground urged was delay in execution of the detention order. The court took it to be a ground to Though as per Lord Camden: See Radin, "The Theory of Judicial Decision: or How Judges Think?" 11 A.B.A.J. 357 (1925) The quote appears In Isaacs: "The Limits of Judicial Discreation", 32 Yale L.J. 39 (1922) maintain the writ petition. Should I, as a single soldier,go by the command of the Division Bench? First, with all humility, I do feel that the judgment goes beyond the frontiers of Smt. Alka Gadia's case which does not speak of any such exception. As noticed by me above, the Supreme Court in Smt. Alka Subhash Gadia's case enumerated five grounds on which there can be interference at the pre-execution stage and before enumerating them it prefaced them by making it clear that the grounds are "very limited in scope and number". By the use of the expression "number", the court leaves no scope for incorporation of additional grounds. This, to my mind, finds further confirmation from the words "on any other ground" used in the same very above quoted passage. Significantly, the court has further observed that refusal by the courts to use their extra-ordinary power of judicial review to interfere with the detention orders prior to their execution on any ground other than the five grounds enumerated by it would not amount to abandonment of the said power but would rather prevent "their abuse and the perversion of the law in question." And even with regard to such cases as do fall within those exceptions it has been observed that the courts would not be obliged to interfere with the impugned order at pre-arrest stage and may insist that the petitioner should first submit to the detaining authority.
(8) Taking the lead from Smt. Alka Subhash Gadia's case and support from the Division Bench orders in Aditiya Kumar Bhandari's case and keeping also in view the facts and circumstances of this case, I do feel that it would not be a proper exercise of discretion by proceeding with the petition without first insisting upon the petitioner to surrender.
(9) For the reasons recorded above, I dismiss the writ petition.