Gujarat High Court
Parixit Dilipkumar Vyas vs State Of Gujarat on 1 May, 2024
Author: Samir J. Dave
Bench: A.Y. Kogje, Samir J. Dave
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4217 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PARIXIT DILIPKUMAR VYAS
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Petitioner(s) No. 1
MR ROHAN RAVAL, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 01/05/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
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1) This petition under Article 226 of the Constitution of India
is filed for the following reliefs:
"(a) That the Hon'ble Court may be pleased to admit
this Special Civil Application;
(b) That this Hon'ble Court may be pleased to allow
this present Special Civil application by issuing
appropriate writ of mandamus or any other
appropriate writ, order or direction for quashing
and set aside the detention order at pre-execution
stage passed by respondent no.2 under the
provisions of section 3 of the Prevention of Black
Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980; as same being illegal,
invalid, null and void, arbitrary, suffers from non-
application of mind, without jurisdiction and
competence, suffering from malafides and violative
of art 14, 19 and 21 of the Constitution of India;
(c) Pending admission hearing and final disposal of this
petition, this Hon'ble Court may be pleased to
restrain the respondents and or their agent's,
servant's persons, employee etc. From executing
the proposed order of detention upon the petitioner
during the pending hearing and final disposal of this
petition in the interest of justice;
(d) xxx.. xxx... xxx;"
2) The challenge is to the order of detention at pre-execution
stage that the respondent No.2- detaining authority viz.
the District Magistrate, Porbandar, in exercise of powers
under the provisions of Prevention of Black Marketing and
Maintenance of Supplies of Essential Commodities Act,
1980 (for short " the Act") and will detain the petitioner .
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3) Learned counsel for the petitioner has argued that there is
no objective material on the basis of which detaining
authority can ever reach to a subjective satisfaction that
the detention order is necessary against the present
petitioner. It is further submitted that the contract of the
petitioner already got over in the year 2021. there is
minor short-fall which has been deducted from the bill
amount of the present petitioner which was lying as
deposit with the authority. This Hon'ble Court after
considering the role of the petitioner has granted
anticipatory bail to the petitioner having found that the
petitioner is not involved in actual siphoning away of the
material.
4) Learned Counsel for the petitioner relied upon the decision
of the Hon'ble Apex Court in case of Nenavath Bujji Etc.
Vs. The State of Telangana and Ors., passed in
Criminal Appeal Nos.1739 to 1739 of 2024 and also
relied upon another decision of the Hon'ble Apex Court in
the case of Deepak Bajaj Vs. State of Maharashtra
and Anr., reported in (2008) 16 SCC 14.
5) As against that, learned AGP has opposed the grant of
petition by submitting that it is found and verified during
the time of the raid as well as the statements that the
petitioner has conducted the serious misconduct in
connivance with the manager, contractor, supervisor and
other accused persons. During investigation, it was also
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found that there is deficiency of more than 1000 bags of
food grains during the subsistence of the petitioner's
contract. He also submitted that the order of detention is
not executed and the petitioner has not surrendered to the
order passed by the authority and as such no right much
less fundamental right of the petitioner is violated by the
respondent authorities and hence, as per the settled legal
position of law, the petitioner is required to surrender first
before challenging the order of detention, which is not
even served upon him and not executed by the authority
and therefore, present petition may be rejected.
6) The Court may refer to the elaborate pleading made in
the petition especially the grounds to challenge the
anticipated detention. The perusal of the grounds makes it
clear that each of the grounds is a ground which are in
fact challenging the order of detention once having been
executed. The grounds mentioned are resorting to the
lesser drastic remedy, no material of petitioner indulging
in offense in future involving in future offense after being
released on bail.
7) It would be pertinent to observe that the petitioner is
involved in the following offence:-
Sr. Years Police Station Offenses
No.
1. 2023 C.R.No.11218015230021 U/s. 406, 409, 120(B),
registered at Ranava Police 465, 467, 471, 477(A)
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Station of IPC and sections 3
and 7 of the Essential
Commodity Act.
8) The specific role of the petitioner is that he is the
proprietor of M/s. P. M. Logistics and Gujarat State Civil
Supplies Corporation Ltd., Porbandar District has provided
lease for transportation of grains, sugar, pules, edible oil
and other commodities and leasing operations with labour,
wherein they have to unload the quantity from the
different godowns of the district and also carry out the
operations of staking/ tagging/ stamping of receipts and
fill quantity in the vehicles placed by the contractor of step
delivery. The supervisors and laborers have to work
according to conditions of the work order and workers
have to be provided in coordination with the godown
manner. It is also submitted that the bills generated in the
name of petitioner were collected by one Keval Bhudiya
from Manager on behalf of the petitioner. In the statement
of the manager it was stated that the petitioner was giving
15000-20000 against the shortage of bags of the food
grains and not showing the said deficiency and also
mentioned that it will be settled later on.
9) The law laid down by the Apex Court in judgment of
Additional Secretary to the Government of India and
others Vs Smt. Alka Subhash Gadia and another,
reported in, 1992 Supp.(1) SCC 496, is very clear and
still hold the field and it certainly does not envisage a
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stage for examining a proposed order that may be a
possibility in future. This Court is not inclined to accept
this argument even on account of the facts that this case
demonstrating petitioner committing the offense in
consistent manner. The facts would therefore not inspire
the Court to examine this aspect of examining the
'Anticipated Detention Order'.
10) It appears that the judgments viz. Nenavath Bujji Etc.
(Supra) and Deepak Bajaj (Supra), cited by the
learned Senior Counsel for the petitioner are not
applicable to the facts of the case on hand. It is pertinent
to note here that the very judgment of Deepak Bajaj
(Supra) was considered by the Full Bench of this Court in
case of Vijaysinh @ Gatti Pruthvisinh Rathod Vs.
State of Gujarat and Ors., reported in 2015 (1) GLR
703. Therefore, the ratio laid down by the Hon'ble Apex
Court in the case of Deepak Bajaj (Supra) is considered
by Full bench of this Court and also considered various
judgment of the Hon'ble Apex Court by the Full Bench.
11) The Court may extensively refer to note that the Full
Bench of this Court in the case of Vedprakash
Devkinanadan Chiripal. Vs. State of Gujarat and
Ors., reported in 1987 (2) GLH 1345, has held as
under:
"22. In view of the aforesaid legal position enunciated by the
Supreme Court, it appears clear that before detention, if
writ of mandamus is moved for challenging unauthorised
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detention order which is already passed on the ground that
the order is a nullity because it is passed (a) by an
incompetent person or (b) it is a mala fide order, or (c) it is
contrary to the legal procedure prescribed for passing such
order, or (d) it is otherwise a nullity for any other reason,
for example passed against a wrong person, it cannot be
said that such challenge would be per se not maintainable
especially when such a challenge would have been
maintainable despite Presidential Order taking away locus
standi to enforce specified Fundamental Rights like Art. 21.
It would be a challenge to an existing order which is posing
imminent threat to the fundamental right of the
prospective detenu guaranteed under Art. 21.
Consequently, in such exceptional and rare cases detention
order, even before it is served on the detenu, can be legally
brought in challenge. It is not necessary to cite any decision
for establishing the right to question a threatened violation
of the individual liberty. There is also no difficulty in
accepting the proposition that a writ is maintainable for
violation of any fundamental right. Even in cases where the
detention is no more operative a writ is maintainable to
wipe out the stigma of such detention made against the
person concerned. In this connection we can usefully quote
the decision of the Supreme Court reported in Union of
India v. Haji Mastan, AIR 1984 SC 681. In this case the
Supreme Court had occasion to consider Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property)
Act (13 of 1976) in relation to COFEPOSA. The person
concerned in that case was detained under COFEPOSA and
subsequent to the period of detention, Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property)
Act was invoked and in those circumstances, the Supreme
Court held that the detention under the COFEPOSA if it is
bad can be questioned and if such an order of detention
passed on the strength of COFEPOSA is set aside, there is
no question of invoking the provisions of Smugglers and
Foreign Exchange Manipulators (Forefeiture of Property)
Act to confiscate the properties of the detenu concerned.
Thus, it is clear, as correctly put forth by Mr. Karmali, that
the Court has jurisdiction to entertain a petition before
detention, during detention and subsequent to the
detention period. The only question is, to what extent the
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Court can go, after entertaining the petition under Art. 226
of the Constitution for a writ of mandamus in case where
the detenu is not served with such a detention order.
23. Our Constitution has given highest priority to the individual
liberty. Individual liberty is a cherished right; one of the
most valuable Fundamental Rights guaranteed by our
Constitution to the citizens of this country. If that right is
invaded, excepting strictly in accordance with law, the
aggrieved party is entitled to appeal to the judicial power
of the State for relief. However, in upholding the individual
liberty, the social interest has also to be kept in view. Our
Constitution has made provision for safeguarding the
interests of the society. Its provisions harmonise the liberty
of the individual with social interests. The authorities have
to act solely on the basis of those provisions. They cannot
deal with the liberty of the individual in a casual manner.
The indifference that may be shown to individual liberty is
bound to erode the basic structure of the democratic
society. Our democratic Constitution inhibits blanket and
arbitrary deprivation of a persons liberty by authority. It
guarantees that no one shall be deprived of his personal
liberty except in accordance with procedure established by
law. It further permits the State, in the larger interests of
the society to so restrict that Fundamental Right in a
reasonable but delicate balance is maintained in a legal
fulcrum between individual liberty and Social security. The
slightest deviation from, or displacement or infraction or
violation of the legal procedure symbolised on that fulcrum
upsets the balance, introduces error and aberration and
vitiates its working. The symbolic balance, therefore, has to
be worked out with utmost care and attention. The
Preventive Detention Act restricts citizens personal liberty
which is a fundamental right under the Constitution. It is to
be reviewed strictly as far as possible and in a manner that
does not restrict that right to an extent greater than is
necessary to effectuate that object. Therefore, the provisions
of such preventive detention Act have to be applied with
watchful care and circumspection. It is the duty of the
Court to see that the efficacy of the limited yet crucial
safeguards provided in the law of preventive detention is
not lost in mechanical routine, dull casualness and chill
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indifference on the part of the authorities entrusted with
their application. It has been held by High Courts and the
Supreme Court that where the liberty of a subject is
involved and he has been detained without trial, under a
law made pursuant to Art. 22 which provides certain
safeguards, it is the duty of the Court as the Custodian
sentinel and ever vigilant guard of the freedom of an
individual to scrutinize with due care and anxiety that this
precious right which he has under the Constitution is not in
any way taken away capriciously, arbitrarily or without
any legal justification. The power to detain without trial is
an extraordinary power constituting encroachment on
personal liberty and it is the solemn duty of the Court to
ensure that this power is exercised strictly in accordance
with the requirement of the Constitution and the law. The
Courts should always lean in favour of upholding personal
liberty, for it is one of the most cherished values of
mankind. Without it life would not be worth living. It is
one of the pillars of free democratic society. Men have
rightly laid down their lives at its alter in order to secure it,
protect it and preserve it. Therefore, the Constitution has,
while conceding the power of preventive detention,
provided procedural safeguards with a view to protecting
the citizen against arbitrary and unjustified invasion of
personal liberty and the Courts have always zealously tried
to uphold and enforce these safeguards. The Supreme
Court and High Courts have, through their judicial
pronouncements, created various legal bulworks and
break-waters into the vast powers conferred on the
executive by the laws of preventive detention prevalent at
different points of time.
24. In Ichudevi Choraris v. Union of India, AIR 1980 SC 1983
the Supreme Court has observed that:
"It is true that sometimes even a smuggler may be able to
secure his release from detention if one of the safeguards or
requirements laid down by the Constitution or the law has
not been observed by the detaining authority but that can
be no reason for whittling down or diluting the safeguards
provided by the Constitution and the law. If the detaining
authority wants to preventively detain a smuggler, it can
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certainly do so, but only in accordance with the provisions
of the Constitution and the law and if there is a breach of
any such provision, the rule of law requires that the detenu
must be set at liberty, however, wicked or mischievous he
may be. The law cannot be subverted, particularly in the
area of personal liberty, in order to prevent a smuggler
from securing his release from detention, because whatever
in the law laid down by the Courts in the case of a
smuggler would be equally applicable in the case of
preventive detention under any other law. This Court
would be laying down a dangerous precedent if it allows a
hard case to make bad law. We must, therefore, interpret
the provisions of the Constitution and the law in regard to
preventive detention without being in any manner
trammelled by the fact that this is a case where a possible
smuggler is seeking his release from detention.
This constitutional protection for life and personal liberty is
placed on such a high pedestal by Courts that it has always
been insisted that whenever there is any deprivation of life
or personal liberty, the authority responsible for such
deprivation must satisfy the Court that it has acted in
accordance with the law. This is an area where the Court
has been most strict and scrupulous in ensuring observance
of the requirements of the law, and even where a
requirement of the law is breached in the slightest measure,
the Courts have not hesitated to strike down the order of
detention or to direct the release of the detenu even though
the detention may have been valid till the breach occurred.
The Court has always regarded personal liberty as the most
precious possession of mankind and refused to tolerate
illegal detention, regardless of the social cost involved in
the release of a possible renegade."
25. The above said observations also receive support from the
decisions rendered in Rattan Singh v. State of Punjab, AIR
1982 SC 1; Kamla Khushalani v. State of Maharashtra, AIR
1981 SC 814; Francis Coralic Mullin v. The Administrator,
Union Territory of Delhi & Ors. AIR 1981 SC 746; A. K. Roy
v. Union of India, AIR 1982 SC 710; Prabhudayal v.
Kamrup, AIR 1974 SC 199; G. Sadanands case, AIR 1966 SC
1925; Narendra Umraos case, AIR 1979 SC 420; Motilal v.
State of Bihar, AIR 1968 SC 1509; Mohammed Alam v. State
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of W.B. AIR 1972 SC 1749; Shaikh Haneef v. State of W.B.,
AIR 1974 SC 679 and Dakbar Mudi v. State of W.B., AIR
1974 SC 2036.
26. In State of Bihar v. Rambalak, Singh, AIR 1966 SC 1441 the
Supreme Court had occasion to consider the question of
grant of bail in a habeas corpus petition filed after the party
had been taken into custody by invoking Rule 30 of the
Defence of India Rules. The Supreme Court upheld the
power of the High Court to grant such bail if it is satisfied
that there is something patently illegal in the order of
detention. In this connection, the Supreme Court held:
"......We are free to confess that we have not come across
cases where bail has been granted in habeas corpus
proceedings directed against orders of detention under
Rule 30 of the Rules, and we apprehend that the reluctance
of the Courts to pass orders of bail in such proceedings is
obviously based on the fact that they are fully conscious of
the difficulties legal and Constitutional and of the other
risks involved in making such orders. Attempts are always
made by the Courts to deal with such applications
expeditiously; and in actual practice it would be very
difficult to come across a case where without a full enquiry
and trial of the grounds on which the order of detention is
challenged by the detenu, it would be reasonably possible
or permissible to the Court to grant bail on prima facie
conclusion reached by it at an earlier stage of the
proceedings. However, the concept of individual liberty as
enshrined in Art. 21 will have to be read in the light of
scheme of Art. 22 and in the backdrop of the Constitutional
scheme emerging from these relevant Articles and as
reflected by the decision of the Supreme Court starting
from AIR 1950 SC 27. It would, therefore, be profitable to
quickly glance through the relevant aspects of law holding
the field."
27. The legislation on preventive detention has been a
permanent feature in our country. The jurisprudence as we
have adopted and accepted permits the Parliament and the
State Legislatures to enact laws regarding preventive
detention for reasons connected with (i) defence, (ii)
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foreign affairs; (iii) security of India (entry 9 in List 1 of Sch.
7 of the Constitution); (iv) security of a State; (v)
maintenance of public order and (vi) maintenance of
supplies and services essential to the community (entry 3 in
List 3 of Sch. 7 of the Constitution). Thus the preventive
detention of a person may be in connection with
maintenance of public order or maintenance of supplies
and services essential to the community, but it can also be
with regard to the defence, foreign affairs and the security
of the nation or that of a State.
28. It may also be noticed that as per the provisions of Art. 359
of the Constitution the President has power to suspend
enforcement of rights conferred by Part III of the
Constitution. This power of the President has been
curtailed by the Constitution (44th Amendment Act, 1978)
which came into force from June 20, 1979. This means that
either during peace time or in war time, emergency, or no
emergency, the rights guaranteed under Arts. 20 and 21
cannot be suspended. Therefore, the Constitutional
provision regarding preventive detention that may be
interpreted and the law that may be laid down by the
Courts would also be applicable even during the times
when the nation is at war with any foreign power or even
when there is a grave internal situation endangering the
very existence of the nation or a State. In our country, with
regard to the personal liberty of individuals, law is the
same either during war or peace time. Therefore, the width
of right of personal liberty that may be enjoyed by a citizen
of this nation or for that matter by any other person
(including a foreigner, for the simple reason that Arts. 20,
21 and 22 apply not only to the citizens but to all persons)
will have to be determined by keeping the aforesaid factors
in mind.
29. Preventive detention law aims at combating certain evils
and/or dangers. This is evident from subjects specified in
respect of entries in Sch. 7. Hence the important question is
what is the width of the right to liberty guaranteed under
the Constitution and to what extent it can be circumscribed
in case of preventive detention. As stated by Fazal Ali, J., in
A. K. Gopalan v. State of Madras, AIR 1950 SC 27, (at page
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65)
"it is elementary that the rigour of a law should correspond
to or fit the gravity of the evil or danger it aims at
combating."
30. In Gopalans case (supra) for the first time after the
adoption of the Constitution the right to liberty as
enshrined in Arts. 20, 21 and 22, in the context of
preventive detention law, came up for consideration. The
Supreme Court has elaborately discussed the fundamental
rights guaranteed by the Constitution. Kania, C. J., while
discussing the right to freedom guaranteed under Art. 19
observed as follows :
"...Reading Art. 19 in that way as a whole the only concept
appears to be that the specified rights of a free citizen are
thus controlled by what the framers of the Constitution
thought were necessary restrictions in the interest of the
rest of the citizens."
31. In Para 11 of the judgment, after referring to both Arts. 19
and 21 of the Constitution, it is further observed as under :
?In respect of each of the rights specified in sub-clauses of
Art. 19(1) specific limitations in respect of each is provided
while the expression ?personal liberty? in Art. 21 is
generally controlled by the general expression ?procedure
established by law?. The Constitution, in Art 19, and also in
other Articles in Part III, thus attempts to strike a balance
between individual liberty and the general interest of the
society. The restraints provided by the Constitution on the
legislative powers or the executive authority of the State
thus operate as guarantees of life and personal liberty of
the individual.
32. Patanjali Sastri, J. in para 102 of the judgment, after
referring to the definition of ?liberty? given by J. S. Mill,
observed as follows :
"Man, as a rational being, desires to do many things, but in
a Civil society his desires have to be controlled, regulated
and reconciled with the exercise of similar desires by other
individuals. Liberty has, therefore, to be limited in order to
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be effectively possessed."
In para 119 it is further observed :
The outstanding fact to be borne in mind in this connection
is that preventive detention has been given a constitutional
status. ........This feature is doubtless designed to prevent an
abuse of freedom by anti-social and subversive element
which might imperil the national welfare of the infant
Republic.
B. K. Mukherjee, J. in para 170 of the judgment, made the
following observations :
"There cannot be any such thing as absolute or
uncontrolled liberty wholly freed from restraint; for that
would lead to anarchy and disorder...... What the
Constitution, therefore, attempts to do in declaring the
rights of the people is to strike a balance between
individual liberty and social control."
S. R. Das, J., in para 215 of the judgment, made the
following observations :
"Personal liberties may be compendiously summed up as
the right to do as one pleases within the law.... Putting
restraint on the freedom of wrong doing of one person is
really securing the liberty of the intended victims......
Therefore, restraints on liberty should be judged not only
subjectively as applied to a few individuals who come
within their operations but also objectively as securing the
liberty of a far greater number of individuals. Social
interest in individual liberty may well have to be
subordinated to other greater social interests. If a law
ensures and protects the greater social interests then such
law will be a wholesome and beneficient law although it
may infringe the liberty of some individuals, for it will
ensure for the greater liberty of the rest of the members of
the society."
Thus while recognising the fact that there cannot be
absolute freedom without restraints, the need for checks
and/or restraints on the executive, legislative and judicial
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usurpation of power is stressed as follows :
"At the same time, our liberty has also to be guarded
against executive, legislative as well as judicial usurpations
of powers and prerogatives... It (the Constitution) has by
providing for preventive detention, recognized that
individual liberty may be subordinated to the larger social
interests?."
33. Thus the inherent need to curtail the right to freedom in
certain circumstances has been recognised as emerging
from the Constitutional scheme itself. By providing for
preventive detention the framers of the Constitution have
recognised certain restraints on the right to individual
liberty and in certain cases the individual liberty is
required to be subordinated to the larger social interest.
The balance which has been struck by the framers of the
Constitution between the conflicting interests of
individuals on the one hand, and the interests of the nation
and the society on the other hand, has been clearly brought
out and elaborately discussed in all the judgments,
delivered separately by all the five Judges of the Supreme
Court constituting the Bench which heard Gopalans case.
Thereafter the law laid down in Gopalans case is to some
extent modified as far as the procedural aspect is
concerned. However, the basic scheme of the Constitution
with regard to the balance having been struck between the
conflicting interest of an individual and that of the national
and social interests, is not in any way questioned or
disturbed.
34. In the aforesaid background the questions raised and
referred to the Full Bench are required to be examined. Be it
noted that in the very nature of things no one can claim a
right of being heard before an order of detention is passed
against him. Therefore, the question arises : Can any one
claim a right of being heard (or any such thing which
would, in substance, be something more than a right of
being heard) before a detention order is executed upon him
? If a petition is entertained before the detention order is
served, and if it is held that such a petition, without any
limitation whatsoever, can be entertained, the proposed
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detenu would not only get a right of being heard but he
would also get a right of judicial review of the proposed
detention order before the order is executed.
35. In Gopalans case (supra) before the Supreme Court it was
"conceded that no notice before detention can be claimed
by the very nature of such detention" (Kania, C.J. in
Gopalans case para-37). The Supreme Court accepted the
concession; and for valid reasons. Therefore, by necessary
implication it can be said that the Supreme Court has
recognised that no such right of being heard can be claimed
before the detention order is executed.
36. In this context the nature, scope and function of judicial
review of administrative action is required to be properly
understood. In ?Judicial Review of Administrative Action
by De Smith, 4th Edition (1980) (page 1) it is stated as
follows :
"Judicial review of administrative action is, inevitably
sporadic and peripheral. The administrative process is not,
and cannot be, a succession of justiciable controversies.
Public authorities are set up to govern and administer, and
if their every act or decision were to be reviewable on
unrestricted grounds by an independent judicial body the
business of administration could be brought to a standstill.
The prospect of judicial relief cannot be held out to every
person whose interests may be adversely affected by
administrative action."
37. In above view of the matter if the Court holds that the
petition challenging the order of detention before the same
is executed and served upon the detenu is maintainable it
would be necessary to hold that such maintainabiiity is also
subject to certain limitation. From the Constitutional
scheme itself and in the very nature of things, there are
certain inherent limitations which the Court must
recognise. If these limitations are not recognised, some
disastrous consequences may follow. While entertaining a
petition under Art. 226 for mandamus against the order of
detention which is not even executed, the Court cannot
forget that the preventive detention laws also operate in the
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spheres of defence, foreign affairs, security of the nation
and security of a State. If a detention order is passed
against a person suspected to have been engaged in
espionage and/or spying activities or against a person who
is suspected to have been involved in disruptive and
terrorist activities, and such an order of detention is
challenged, by way of a petition under Art. 226, before it is
executed, and if the Courts were to grant stay order in such
petitions, would it not be that in a given case, the very
existence of the nation may be put into danger ? If that be
so, would it not be reasonable to say that in matters where
detention order is challenged before it is executed stay
orders be not granted by the Court even when the Court
feels that the petition may be entertained and notice be
issued against the executive authority? By recognising this
limitation the Court is merely striking a balance between
two conflicting interests which is basic to the constitutional
scheme. The Court cannot also lose sight of the fact that
law laid down in this respect can as well be availed of by a
proposed detenu by filing a suit before the Court of a Civil
Judge (S.D.) also. Obviously in such a suit the plaintiff
would not pray for any relief in the nature of ?Habeas
Corpus?. He may seek mere declaration regarding illegality
and/or validity of detention order and pray for ex-parte
interim order. If this becomes the law, will it be prudent
and reasonable that the matters of grave concern which
may endanger the safety and very existence of the nation
be left to be considered at leisure while keeping a person,
suspected to be ?potentially dangerous untouched by the
executive ? If this is permitted it may well be said that
Court is exceeding its limits. Therefore, a restrained and
cautious approach is absolutely necessary.
38. xxx ... xxx .... xxx
39. xxx ... xxx .... xxx
40. In Special Criminal Application No. 841 of 1985 (Mohmad
Umar Gulam Rasul Varo v. District Collector, Kheda, 1986
(2) GLR 1431) a Division Bench of this Court on 11-10-1985
had occasion to examine the question as to whether the
High Court can entertain a petition before the order of
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detention is executed and the person concerned is put in
detention. In that judgment, the Bench observed:
"In our opinion, whether the order is passed according to
the provisions of the Act or whether it is passed by the
detaining authority applying its mind, would be required
to be decided after taking into consideration, the grounds
of detention and the materials which are required to be
supplied to the petitioner. But, at this stage, merely because
the petitioner alleges that there are no grounds for
detaining him cannot be accepted. In any case, this
question, whether the detaining authority has applied its
mind before passing the detention order, can be decided
only after verifying the grounds of detention and other
materials which are required to be supplied to the
petitioner. At this stage if the petitioners contention is
accepted and the prayer of the petitioner is granted, the
purpose of the Act would be frustrated which essentially
operates in suspicion jurisdiction."
The Bench has further observed :
"The very Chapter of fundamental rights which gurantees
and protects individual liberty has provided for the
preventive detention also. Therefore, while giving utmost
importance for, safeguarding the individual liberty, the
High Court cannot be oblivious of the fact that in certain
cases executive is authorised to detain a person without
trial, provided the constitutional safeguards mentioned in
Art. 22 and in the relevant law providing for preventive
detention are complied with...... In such cases it has got to
be borne in mind by the High Court that preventive
detention is not by way of punishment at all. It is intended
to pre-empt or restrain a person from indulging in any
conduct injurious to the society. In case of preventive
detention a person is detained merely on suspicion with a
view to preventing him from doing harm in future. Since
the object of preventive detention is not to punish a person
for having done something, but it is to intercept him before
he does it and to prevent him from doing it, ordinarily, it
would not be proper for High Court to entertain petition
before the order of detention is executed and the person
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concerned is put under detention. If this is done, the very
purpose and the object of preventive detention would be
frustrated."
The Bench of our High Court after referring to the various
decisions of the Supreme Court has observed :
"However, this does not mean that in proper cases the
High Court has no jurisdiction to enteriain such petition.
But such petitions would be the rarest of the rare by no
stretch of reasoning it can be said that such type of
petitions can be entertained because grounds of 'mala
fides' and that of ?non-application? of mind are alleged in
the petition. It is difficult to enumerate the cases in which
the High Court may entertain such petitions even before a
person is detained. There may be a case where no
examination of fact be necessary. On the face of it without
further examination of facts or law, it should appear that
the action of detaining a person is illegal and mala fide.
However even in such cases it would be wiser and proper
for the Courts not to issue ex parte interim order and direct
the executive authority to refrain from implementing its
order of detention. More appropriate and wiser course
would be to bear such matters immediately, say, within a
day or two or within a weeks time and pass an appropriate
order of release of the detenu."
41. xxx ... xxx .... xxx
42. In Maganbhai v. Union of India, AIR 1969 SC 783,
Hidayatullah, C. J., speaking for the Bench of the Supreme
Court has made an observation to the effect that the Courts
may issue a writ of mandamus at the instance of a party
whose fundamental rights are directly and substantially
invaded or are in imminent danger of being so invaded.
From this observation we can liberally interpret Art. 21 of
the Constitution as conferring right upon an individual to
invoke the jurisdiction of the Court to safeguard his liberty
even in cases where there is imminent danger to his liberty
being invaded in future.
43. xxx ... xxx .... xxx
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44. From the foregoing discussion, it is clear that a detenu
cannot ordinarily seek a writ of mandamus in cases where
he has not surrendered nor has been served with an order
of detention and he cannot ordinarily invoke the
jurisdiction of the High Court under Art. 226 of the
Constitution. But in exceptional case and in rarest of rare
cases wherein the order of detention appears to be ab initio
void the detenu can invoke the jurisdiction of the High
Court under Art. 226 of the Constitution even before he
surrenders and even before the order of detention is served
upon him, subject to the limitations indicated in this
judgment.
45. xxx ... xxx .... xxx
46. xxx ... xxx .... xxx
47. xxx ... xxx .... xxx
48. Article 22(5) of the Constitution makes it clear that when any
person is detained in pursuance of an order made as per
the provisions of the preventive detention Act, the
authority making such an order shall communicate such
person the grounds on which the order has been made and
shall afford him an earliest opportunity of making a
representation against the order. The provisions of
COFEPOSA Act and the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act,
1980 make it clear as to how and when the grounds can be
served on the detenu concerned. We have already extracted
the relevant provisions in paragraphs supra. When such
detention laws have been validly made and that they are in
consonance with the provisions of Arts. 21 and 22 of the
Constitution, the detenu concerned cannot be allowed to
circumvent such procedure by invoking the jurisdiction of
the High Court under Art. 226 of the Constitution. Such
insistence would result in violation of Art. 22(5). The
obligation of the authority to communicate the grounds to
detenu would arise only on the service of the detention
order on the detenu. If prior to such service the grounds are
directed to be produced before the Court, and if they are to
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be relied on by the Court against the detenu, those grounds
will have to be shown to the detenu otherwise basic
principles of natural justice will be violated. Thus in such
cases the Court will have to make available the grounds to
the detenu before the order of detention is served on him.
That would fly in the face of Art. 22 (5) and the Court
would be doing something indirectly which is directly not
permitted and contra-indicated by the Article. In such cases
the detenu can successfully avoid a detention order by
going underground and question such detention order
even before submitting to the pro-cedures validly
established by law in accordance with the Constitutional
mandate provided under Arts. 21 and 22 of the
Constitution. Such interference by the Court before the
detenu concerned submitting himself to the lawful
procedure established by law, would indirectly assist the
detenu who flouts the law of detention by going
underground.
49. Thus, in short if in a writ of mandamus the Court undertakes
the very same exercise of scanning the grounds which it is
called upon to exercise in a writ of habeas corpus at the
instance of the person who abides by law and surrenders;
then there would remain no incentive or impetus for any
one to surrender rather than to abscond, if both of them are
to be treated alike. Considering, this anomaly, we have to
read the personal liberty enshrined under Art. 21 of the
Constitution, alongwith Art. 22 and the procedure
established by law for the purpose of preventive
detentions. The provision to enact preventive detention
laws is incorporated in the Chapter declaring the
fundamental rights. Hence any procedure established by
law has to be given effect to and the party should not be
allowed to circumvent the same by invoking the
jurisdiction of the Court. The detenu who absconds and
fails to surrender in accordance with the procedure
established by preventive detention Act should not be
permitted to get the benefit of scanning of the grounds by
the Court prior to surrender. If such indulgence is given it
will amount to the Court aiding and encouraging those
who flout the procedure established by law. There may be
cases where the order of detention may be ab initio void
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and such void orders could be found out without getting
into the grounds of detention or the mala fide intention of
the executive concerned. Those are all cases in which the
Courts have to interfere and that does not mean the Courts
will insist upon the supply of the grounds de hors the
procedure set up by law validly enacted on the strength of
Arts. 21 and 22 of the Constitution when Preventive
Detention Act is applicable and its vires are not challenged
and once the respondents-state that a valid order of
detention is passed by the competent authority, the matter
must end at that stage. At that stage, there cannot be any
detailed inquiry regarding the genuiness, legality, scope
and ambit of the grounds supporting the detention order.
All that the Court has to see is whether the order passed is
ab initio void, without going into the grounds of such a
detention order.
50. There may be cases where an order would have been passed
by the authority who has no right to pass such an order.
Cases may not be wanting where the purpose for which the
detention is being ordered may be contrary to the purposes
mentioned in the detention laws. There may also be cases
where the order passed may relate to a person other than
the detenu. These are all some of the instances we give and
they are not exhaustive. We are also aware that the Court
by interferring under Art. 226 of the Constitution, before
the grounds of detention are served upon the detenu, and
before the detenu surrenders before the authority
concerned, should not frustrate the validly enacted law in
accordance with Arts. 21 and 22 of the Constitution of
India. Neverthless the danger to the personal liberty has to
be jealously guarded against by the judiciary which is the
sentinel for the purpose of protecting the liberty of an
individual. There may be cases where the order of
detention is ex-facie illegal and arbitrary. When especially a
substantive provision of law in a valid piece of legislation
can be questioned and may be quashed for the reasons
germane to it, is the Court helpless to protect the liberty of
a person in rarest of rare cases even before the said person
exhausting the procedural machinery set up for getting
redressal from such detention ? The High Court cannot be a
silent spectator when the fundamental right and liberty of a
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citizen are being eroded by an executive fiat. May it be
under the cloak of preventive detention or any other law or
provision the High Court has ample power to entertain and
save an individual who would otherwise be mouled by an
arbitrary action. No doubt there are limitations in
exercising the powers under Art. 226 and such limitations
are wider and limited according to the legislation under
which the executive has exercised its authority. If a
preventive detention order is found to be arbitrary and ex-
facie illegal, the High Court will not hesitate to interfere in
such type of orders for the purpose of giving necessary
relief to the affected. The Courts which have derived its
power under the Constitution cannot lie dormant as if its
hands are fettered by promulgation of a detention order,
when especially the intended detention order is ex-facie
illegal, arbitrary and shocks the moral conscience of the
Court. In such rarest of rare cases it is the duty of the Court
to interfere with ex-facie illegal and arbitrary detention
order in order to save and protect the liberty of the
individual against the executive fiat. While doing so, it
should not exceed the limit nor make a validly made law
otiose. Hence, it is incumbent upon the Court when it
entertains such a petition under Art. 226 of the
Constitution, in rarest of rare cases, to see that the
procedure established by law is not circumvented by the
detenu concerned. As far as the detention laws involved in
these cases are concerned, there are procedures set up for
the purpose of detaining a person and supplying the
grounds and permitting him to avail the procedure for the
purpose of vindicating his innocence. Even if a petition for
writ of mandamus is moved for quashing the detention
order prior to its service on the detenu in exceptional
circumstances as discussed above, no question of interim
stay of such order pending the petition would arise. We say
so for the following obvious reasons :
51. In a society governed by rule of law the object behind
administration of justice and the purpose for which the
Courts exist is to see that the people turn to the law and not
turn away from the law. Therefore, the people must realise,
and the people must be told even by the Courts, that it is
better that in the interest of the society and the nation, one
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has to subordinate his individual liberty to the larger
interest of the nation and the society. Such an approach
would prevent the tendency to circumvent the provisions
of law. It must be noted that in relation to preventive
detention, constitutional safeguards have been mentioned
in Arts. 22(4) to 22(7). As far as possible the Court should
not assist a person in circumventing law. If a petition as
filed by the petitioner is entertained and interim relief
granted as prayed for, the Court, by its order, would
permit such a person to bypass the scheme of the Act and
the Constitutional provisions. Moreover, if after
entertaining and after granting interim relief as prayed for,
the contentions raised in the petition regarding the
tenability of the grounds are examined, it would amount to
frustrating the scheme of the Constitution and the Act. It is
to be borne in mind that there is no constitutional or
statutory obligation upon the executive authority to supply
the grounds before the order of detention is served upon
the proposed detenu. In the absence of any constitutional
or Statutory duty cast upon the executive authority to
supply copies of the grounds before actual detention, the
executive authority can very well say that the Court cannot
ask it, to do something which does not form part of its duty
to do and which is otherwise within its right to refrain from
doing. The executive authority will be within its rights to
withhold the grounds till the order of detention is
executed. It may be noted that, in a given case it may even
be necessary for the security of the nation that the grounds
be not disclosed to any one (even to the Court) till the order
of detention is served. In matters of defence and foreign
affairs or with regard to the security of the nation or a State,
such a situation may arise at any time.
52. The argument that such a petition under Art. 226 be
entertained if necessary, by putting the petitioner or the
proposed detenu to certain terms, again amounts to
begging the question. When the Court puts the petitioner
or the detenu to terms say, asks the petitioner/detenu to
submit to the jurisdiction of the Court is the Court not
restricting his liberty? If that is so, in the larger interest of
the nation and when it is consistent with the basic scheme
of the Constitution, should the executive authority be not
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permitted to take its own course and, if necessary, execute
the order of detention without in any way being restricted
by the Court ? The necessary check on the powers of the
executive can be exercised by the Courts from the next
moment of the execution of the order of detention. Such a
balance has got to be struck in view of the basic scheme of
the Constitution, the potential dangers and likelihood of
disastrous consequences to follow and all other matters
discussed hereinabove. In such cases, the Court may fix up
the final hearing of the petition at the earliest and call for
immediate return from the respondents. If in the return, the
respondents accept the case of the petitioner or cannot
successfully challenge it, then, of course, the Court will set
aside the order of detention though not served on the
detenu. If on the other hand, the return indicates and avers
that contentions of the petitioner are not correct, the matter
at the preliminary stage must end, and the petition will be
dismissed leaving the detenu to contest the detention order
in a full-fledged manner after he is actually detained and
supplied with the grounds. Thus in no case, question of
interim stay of the execution of the proposed
detention ,order will survive pending the hearing of the
petition for mandamus for quashing the unserved
detention order. If such stay is granted, it would amount to
circumventing the procedure established by law of
preventive detention as contemplated and countenanced
by Arts. 21 and 22 of the Constitution. It would also result
in restraining the executive from acting as per valid
preventive detention law even before the Court examines
whether their proposed action is justified or not. That
would blunt the very preventive detention law procedure
and will make it otiose and redundant. Consequently, on
the very same reasons, on which grounds cannot be called
for from the respondents, pending the writ petition for
mandamus for quashing the unserved detention order,
interim stay of such order also cannot be granted pending
the final hearing of such petition."
12) It is necessary to refer to judgment of the Full Bench of
this Court in the case of Vijaysinh @ Gatti Pruthvisinh
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Rathod (Supra), wherein this Court has held as under:
"7.2. In the case of Smt. Alka Subhash Gadia, [1992 (Suppl.) (1)
SCC 496] in Paras 30, 32 and 35, the Honble Supreme Court has
observed and held as under :
"30. As regards his last contention, viz., that to deny a right
to the proposed detenu to challenge the order of detention
and the grounds on which it is made before he is taken in
custody is to deny him the remedy of judicial review of the
impugned order which right is a part of the basic structure
of the Constitution, we find that this argument is also not
well-merited based as it is on absolute assumptions. Firstly,
as pointed out by the authorities discussed above, there is a
difference between the existence of power and its exercise.
Neither the Constitution including the provisions of Art. 22
thereof nor the Act in question places any restriction on the
powers of the High Court and this Court to review
judicially the order of detention. The powers under Arts.
226 and 32 are wide, and are untrammelled by any external
restrictions, and can reach any executive order resulting in
civil or criminal consequences. However, the Courts have
over the years evolved certain selfrestraints for exercising
these powers. They have done so in the interests of the
administration of justice and for better and more efficient
and informed exercise of the said powers. These self-
imposed restraints are not confined to the review of the
orders passed under detention law only. They extend to the
orders passed and decisions made under all laws. It is in
pursuance of this selfevolved judicial policy and in
conformity with the selfimposed internal restrictions that
the Courts insist that the aggrieved person first allow the
due operation and implementation of the concerned law
and exhaust the remedies provided by it before
approaching the High Court and this Court to invoke their
discretionary extraordinary and equitable jurisdiction
under Arts. 226 and 32 respectively. That jurisdiction by its
very nature is to be used sparingly and in circumstances
where no other efficacious remedy is available. We have
while discussing the relevant authorities earlier dealt in
detail with the circumstances under which these
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extraordinary powers are used and are declined to be used
by the Courts. To accept Shri Jains present contention
would mean that the Courts should disregard all these
time honoured and welltested judicial selfrestraints and
norms and exercise their said powers, in every case before
the detention order is executed. Secondly, as has been
rightly pointed out by Shri Sibal for the appellants, as far as
detention orders are concerned if in every case a detenu is
permitted to challenge and seek the stay of the operation of
the order before it is executed, the very purpose of the
order and of the law under which it is made will be
frustrated since such orders are in operation only for a
limited period. 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 its
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. 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.
32. 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 preexecution 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 thereunder do not
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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 earlier, 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 preexecution stage, of course, on the
very limited grounds stated above. The Court no doubt
even in such cases is not obliged to interfere with the
impugned order at that stage and may insist that the
detenu should first submit to it. It will, however, depend
on the facts of each case. The decisions and the orders cited
above show that in some genuine cases, the Courts have
exercised their powers at the preexecution stage, though
such cases have been rare. This only emphasises the fact
that the Courts have power to interfere with the detention
orders even at the preexecution stage but they are not
obliged to do so nor will it be proper for them to do so save
in exceptional cases. Much less can a detenu claim such
exercise of power as a matter of right. The discretion is of
the Court and it has to be exercised judicially on well
settled principles.
35. As has been pointed out at the outset, after this order,
the appellants took the plea that although they were
willing to produce the order of detention and the grounds
of detention for the perusal of the Court, they cannot
furnish them to respondent 1, unless, as required by the
Act, the detenu first submits to the impugned order. The
High Court thereupon issued the contempt notice by its
order dated June 30, 1989. For the reasons discussed above,
we are of the view that both the orders of the High Court
directing the appellants to furnish to the detenu or to
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respondent No. 1 or her Counsel the order of detention, the
grounds of detention and the documents supporting them
as well as the contempt notice of June 30, 1989 are clearly
illegal and unjustified and they are hereby quashed. Both
the appeals are accordingly allowed."
7.3. In the case of N. K. Bapna, [1992 (3) SCC 512] after considering the
decision of the Honble Supreme Court in the case of Smt. Alka
Subhash Gadia, [1992 (Suppl.) (1) SCC 496], in Para 4, the Honble
Supreme Court has observed and held as under :
"4. It is now well settled that, even in a case of preventive
detention, it is not necessary for the proposed detenu to
wait till a detention order is served from him before
challenging the detention order. It is true that the
Constitution of India, which permits preventive detention
requires the detaining authorities to serve the grounds of
detention within a prescribed period after the detention
order is served on the detenu. It does not envisage any
disclosure of the grounds of detention prior to the service
of the detention order on the detenu. To apprise the detenu
in advance of the grounds on which he is proposed to be
detained may well frustrate the very purpose of the law.
On the other hand, to insist that no order of detention can
be challenged until actual detention in pursuance thereof
takes place might irretrievably prejudice the rights of
proposed detenus in certain situations. Thus, the
conflicting claims of the State and the fundamental right of
a citizen need to be reconciled and the limitations, if any,
precisely enunciated. This has been done by the recent
decision of this Court in the Additional Secretary to the
Government of India v. Smt. Alka Subhash Gadia, JT 1991
(1) SC 549. The real question of law that fell for
consideration before the Court in that case was whether the
274 detenu or anyone on his behalf is entitled to challenge
the detention order without the detenu submitting or
surrendering to it and if so in what type of cases. As a
corollary to this question, the incidental question that had
to be answered was whether the detenu or the petitioner on
his behalf, is entitled to the detention order and the
grounds on which the detention order is made before the
detenu submits to the order. The first question was
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answered by saying that the Courts have power to interfere
even before the detention order is served or the detention is
effected but that such power will be exercised sparingly
and in exceptional cases of the type enunciated therein. The
Court observed :
"It is not correct to say that the Courts have no power to
entertain grievances against any detention order prior to its
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. 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."
On the second question, the Court had this to say :
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 thereunder 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 earlier, have power
even to grant bail to the detenu pending the final hearing
of his petition. Alternatively, as stated earlier, the Court can
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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 interfere with the
impugned order at that stage and may insist that the
detenu should first submit to it. It will, however, depend
on the facts of each case. The decisions and the orders cited
above show that in some genuine cases, the Courts have
exercised their powers at the preexecution stage, though
such cases have been rare. This only emphasises the fact
that the Courts have power to interfere with the detention
orders even at the pre-execution stage but they are not
obliged to do so nor will it be proper for them to do so save
in exceptional cases. Much less can a detenu claim such
exercise of power as a matter of right. The discretion is of
the Court and it has to be exercised judicially on wellsettled
principles."
7.4. Thereafter, in the case of Subhash Muljimal Gandhi, [1994 (6) SCC
14] in Paras 8 to 10, the Honble Supreme Court has observed and
held as under :
"8. The question as to whether a detenu or anyone on his
behalf is entitled to challenge an order of detention without
the detenu submitting or surrendering to it, and if so, what
will be the nature, scope and extent of such challenge came
up for consideration before a three-Judge Bench of this
Court, of which one of us (Sawant, J.) was a member, in
Addl. Secy., Govt. of India v. Alka Subhash Gadia, 1992
Supp (1) SCC 496. The Court, after striking a balance
between the competing claims of the individual to his
liberty and of the State to detain an individual to safeguard
the interest of the society and on a conspectus of the
decisions of this Court and of different High Courts on the
subject, answered the question with the following words:
".....it is not correct to say that the Courts have no power to
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entertain grievances against any detention order prior to its
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. 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." (Emphasis supplied)
9. Mr. Jethmalani first contended that the five contingencies
referred to in the abovequoted passage were not exhaustive
but illustrative as there might well be other contingencies
in which preexecution challenge to the order of detention
would be permitted. In elaborating his contention Mr.
Jethmalani submitted that in the case in hand there were
sufficient materials to prove that the Customs Officers
concocted a false case of smuggling against the appellant
after beating him, keeping him in illegal custody for three
days and coercing him to make a confessional statement. In
support of this submission, Mr. Jethmalani first drew our
attention to the report of the doctor of the Jail Hospital
submitted on 02-06-1990 to the Chief Metropolitan
Magistrate regarding medical examination of the appellant
which indicates that the doctor found some bruises and
abrasions on his person and he complained of pain in his
body. Mr. Jethmalani then drew our attention to the fact
that though the appellant was apprehended in the early
hours of 22-05-1990 and was thus constitutionally and
statutorily required to be produced before the nearest
Magistrate latest by 23-05-1990 he was kept unlawfully
detained till 25-05-1990 when the customs authorities
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produced him in Court. Mr Jethmalani submitted that as
these facts unmistakably demonstrated the misuse and
abuse of extraordinary constitutional powers by the State
machinery this Court would not allow the liberty of a
victim of exercise of such powers to be taken away even if
the parameters mentioned in Alka Subhash Gadia, 1992
(Suppl.) (1) SCC 496 did not apply in this case. Even
otherwise, Mr. Jethmalani urged, the facts herein clearly
made out a case for interference by this Court under
category (iii) mentioned in the abovequoted passage in
Alka Subhash Gadia, 1992 (Suppl.) (1) SCC 496, I, namely
that the impugned order was passed for a wrong purpose.
10. Having given our anxious consideration to the above
contentions of Mr. Jethmalani, we are unable to accept the
same. In the passage, earlier quoted from Alka Subhash
Gadia, 1992 (Suppl.) (1) SCC 496 this Court has expressly
laid down that the interference with detention orders at
preexecution stage has to be limited in scope and number
as mentioned therein. The Court has reiterated the same
view as will be evident from the following further
observations made in that case :
......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 preexecution stage,
of course, on the very limited grounds stated above."
(Emphasis supplied)
7.5. Thereafter the decision of the Hon'ble Supreme Court in the case of
Smt. Alka Subhash Gadia, [1992 (Suppl.) (1) SCC 496] again came
to be considered by the Honble Supreme Court in the case of Sayed
Taher Bawamiya v. Joint Secretary to the Government of India,
reported in 2000 (8) SCC 630 and Paras 6 and 7, the Honble
Supreme Court has observed and held as under :
"6. This Court in Alka Subhash Gadia case, 1992 (Suppl.) (1)
SCC 496 was also concerned with a matter where the
detention order had not been served but the High Court
had entertained the petition under Art. 226 of the
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Constitution. This Court held that equitable jurisdiction
under Art. 226 and Art. 32 which is discretionary in nature
would not be exercised in a case where the proposed
detenu successfully evades the service of the order. The
Court, however, noted that the Courts have the necessary
power in appropriate cases to interfere with the detention
order at the preexecution stage but the scope for
interference is very limited. It was held that the Courts will
interfere at the preexecution stage with the detention
orders only after they 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.
7. As we see it, the present case does not fall under any of
the aforesaid five exceptions for the Court to interfere. It
was contended that these exceptions are not exhaustive.
We are unable to agree with this submission. Alka Subhash
Gadia case, 1992 (Suppl.) (1) SCC 496 shows that it is only
in these five types of instances that the Court may exercise
its discretionary jurisdiction under Art. 226 or Art. 32 at the
preexecution stage. The petitioner had sought to contend
that the order which was passed was vague, extraneous
and on irrelevant grounds but there is no material for
making such an averment for the simple reason that the
order of detention and the grounds on which the said order
is passed has not been placed on record inasmuch as the
order has not yet been executed. The petitioner does not
have a copy of the same, and therefore, it is not open to the
petitioner to contend that the nonexistent order was passed
on vague, extraneous or on irrelevant grounds."
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7.6. Thereafter, in the case of Bhaurao Punjabrao Gawande, [2008 (3)
SCC 613], in Para 63, the Honble Supreme Court has observed and
held as under :
"63. From the foregoing discussion, in our judgment, the
law appears to be fairly well settled and it is this. As a
general rule, an order of detention passed by a Detaining
Authority under the relevant preventive detention law
cannot be set aside by a writ Court at the preexecution or
prearrest stage unless the Court is satisfied that there are
exceptional circumstances specified in Alka Subhash
Gadia, 1992 (Suppl.) (1) SCC 496. The Court must be
conscious and mindful of the fact that this is a suspicious
jurisdiction i.e. jurisdiction based on suspicion and an
action is taken with a view to preventing a person from
acting in any manner prejudicial to certain activities
enumerated in the relevant detention law. Interference by a
Court of Law at that stage must be an exception rather than
a rule and such an exercise can be undertaken by a Writ
Court with extreme care, caution and circumspection. A
detenu cannot ordinarily seek a writ of mandamus if he
does not surrender and is not served with an order of
detention and the grounds in support of such order."
13) In view of the aforementioned facts and circumstances of
the case and discussion, no case is made for any
interference of this Court and hence, the petition deserves
to be dismissed and the same is hereby dismissed. Notice
is discharged.
Sd/-
(A.Y. KOGJE, J)
Sd/-
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
