Madhya Pradesh High Court
Dilip Sisodia S/O Anandilal Jain ... vs The State Of Madhya Pradesh on 22 September, 2021
Author: Sujoy Paul
WP No.12203/2021
(1)
High Court of Madhya Pradesh; Bench At Indore
Case No. W.P. No.12203/2021
Parties Name Dilip Sisodia
vs.
State of M.P. and others
Date of Judgment 22/09/21
Bench Constituted Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Judgment delivered by Justice Sujoy Paul
Whether approved for YES
reporting
Name of counsels for Shri.Vinod Prasad and Shri
parties Sumit Mittal, learned counsel for
petitioner.
Shri Pushyamitra Bhargav,
Additional Advocate General for
the respondent/State.
Law laid down 1. Section 3 of National
Security Act, 1980 (NSA Act) -
Petition under article 226 of the
Constitution of India - Challenge to
the order of detention at pre-
execution stage - Scope is limited
and can be called in question if (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 the 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 not authority to do so.
2. The detention order - Time
lapse - Merely because sufficient
time is passed after passing of
detention order, interference cannot
be made. The lapsation of time alone
cannot be a reason to interfere with
the detention order.
WP No.12203/2021
(2)
3. The detention order -
Competence - 'Tweets' of competent
authority is relied upon wherein he
mentioned his designation as
"Collector/District Magistrate". Held
- even if description is mentioned in
the tweet as aforesaid and not only as
"District Magistrate" it cannot be a
reason to interfere with the detention
order.
4. The detention law - Land
grabbing - The scale and magnitude
on which allegations of land grabbing
are made by treating the detenu as
land mafia, the detention law can be
invoked taking into account its
overall impact on the society and
tempo of the society.
5. Section 3 of National Security
Act can be invoked to achieve the
following purposes :-
i) for preventing him from
acting in any manner prejudicial to
the security of State.
ii) for preventing him from
acting in any manner prejudicial to
the maintenance of public order.
iii) for preventing him from
acting in any manner prejudicial to
the maintenance of supplies and
services essential to the
community."
6. In the present factual
backdrop - the detenu cannot be
permitted to seek writ from this
Court without surrendering and
without obtaining order of
detention and grounds thereof.
Significant paragraph 20 to 33
numbers
ORDER
22.09.2021
Sujoy Paul, J.
In this petition filed under Article 226 of the Constitution,
the petitioner has prayed for following reliefs for his relative
WP No.12203/2021
(detenu):-
"a) Pass the appropriate order restraining the
respondent no.1 not to act in malafide, illegal and
arbitraty manner and for respondent no.2 for not acting
on false and frivolous report submitted by respondent
no.1 under section 3(3) of the National Security Act,
1980: and
b) Pass appropriate order to set aside the
detention order dated 19.02.2021 passed by
Respondent no.1 and the order passed by respondent
no.2 under section 3(4) of the National Security Act,
1980 acting on false report submitted by respondent
no.1 and
c) Pass appropriate order(s) to respondent no.3 not to
act in malafide manner and curtail the liberty of the
petitioner in relation to the 6 FIRs (being FIR
no.0160/2021 dt 17.02.2021 and FIR No.0162/2021
dated 10.08.2021 filed in the Khajrana Police station,
Indore (b) FIR No.0159/2021 dated 17.02.2021 and
FIR No.0161/2021 dated 18.02.2021 filed in
Khajrana Police Station, Indore (c) FIR
No.0131/2021 dated 18.02.2021 and FIR
No.0132/2021 dated 18.02.2021 filed in MIG Colony
Police Station, Indore) registered on the basis of false
allegation with respect to these FIRs registered in
contrary to the law laid down by the Hon'ble Apex
Court in T.T Antony Case and Amit Anil Chandra
Bhai Shah case wherein it was held that 2 FIRs
cannot be registered arising out of the same subject
manner held to be illegal.
d) This Hon'ble Court be pleased to pass any
such other order or orders as may be deemed fit by
this Hon'ble Court in the facts and circumstances of
the case in favour of the petitioner; and/or;
e) That, this Hon'ble Court be pleased to award
costs to the petitioner"
2. Indisputably, in this petition, petitioner has assailed the
detention order before its communication and execution.
During the course of hearing, learned counsel for petitioner and
learned counsel for State fairly submitted that the scope of
interference at this stage is very limited and the litmus test for
exercise of such jurisdiction is laid down in extenso in
WP No.12203/2021
Additional Secretary to the Government of India & Ors. Vs.
Smt. Alka Subhash Gadia & another (1992) Supp 1 SCC 496.
The test laid down is mentioned in para no.30.
3. Shri Vinod Prasad, learned counsel for petitioner submits
that the test No.(iii) to (v) aforesaid are squarely applicable in
the instant case. Thus, at pre execution stage also, this court can
exercise jurisdiction and it is a fit case where necessary
ingredients for exercise of such jurisdiction are available.
4. To elaborate, Shri Prasad placed reliance on two tweets of
District Magistrate/Collector dated 18/2/2021 and 19/2/2021.
The petitioner came to know about the passing of detention
order regarding his father detenu from the aforesaid tweets of
District Magistrate/Collector. Shri Prasad submits that the
National Security Act, 1980 (for short "NSA Act") empowers
the State Government to detain a person and it can delegate such
power of detention to the District Magistrate. However, this
power is given to a specific authority namely "District
Magistrate" and not to a "Collector" who is an authority under
the revenue laws. The competent authority exercising power of
detention must know in which capacity he is exercising the
drastic power of detention. The casual use of designation
'Collector/District Magistrate' by the said authority itself shows
that he is aware of source of his power and with the same
casualness he must have passed the detention order.
5. The next contention is that this Court in WP
No.7248/2014 (PIL) considered the question of correctness of
decision of regularisation of a colony namely "Hina Palace
Colony". This Court affirmed the regularisation process and,
therefore, the said colony cannot be subject matter of FIR or
invocation of detention law.
6. It is pointed out that as many as six FIRs were lodged in
WP No.12203/2021
the intervening night between 17/2/2021 and 18/2/2021 by
various government authorities. The FIRs are confined to the
said colony and lodged in Police Stations Khajrana and MIG.
By taking this Court to one such FIR (Annexure P/5) lodged on
17/2/2021 at 7.32, PM Shri Prasad argued that it relates to
Pushpvihar colony and alleged offence was committed in the
year 2006. After about 15 years, FIR was lodged which is silent
as to what happened between 2006 to 2021. In the manner FIRs
were lodged, shows the manner in which the authorities have
abused their power and such exercise amounts to colourable
exercise of power.
7. Furthermore, it is contended that although detention order
or its grounds are not served on the petitioner or on the detenu,
it is learnt that the same is founded upon the said FIRs. There is
no live link between the incidents of 2006/2007 and the
invocation of detention law in the year 2021. In absence of any
suh live link, the detention law could not have been invoked.
8. Shri Prasad further submits that a similar question
cropped up before the Allahabad High Court in the matter of
Samai Din Vs. District Magistrate, Ghaziabad (1983 Cri LJ
22). In the said case, the allegation against the detenu was that
he grabbed the land and the Allahabad High Court opined that
this action, at best can fall within the ambit of "law and order"
and there is no invasion of "public order". The detenu is already
facing criminal case. The anticipatory bail in two cases is
granted to him by the Courts. The ordinary penal law is
sufficient to take care of the petitioner's offending activity (if
any) and there exists no material to invoke the NSA Act.
9. The next contention is that the Lokayukta Organisation of
Madhya Pradesh also filed a closure report before the Special
Judge and learned Special Judge by a detailed order accepted
WP No.12203/2021
the final report of Lokayukta relating to the same colony namely
Hina Palace Colony. The said question or factual backdrop
cannot again be subject matter or reason for detaining the
detenu. This act of respondents in banking upon the said fact
relating to Hina Palace Colony is contemptuous and mala-fide in
nature.
10. The averments of petition are not denied in the return
which shows that the same are actually admitted in the return.
For this reason also, various factual aspects raised by the
petitioner in the writ petition went unrebutted.
11. Lastly, learned counsel for petitioner placed reliance on
Sec.3(5) of the NSA Act and contended that it is
obligatory/mandatory on the part of the respondents to seek and
obtain approval of the Central government within stipulated
time. It appears that there exists no such document to show that
the said exercise has been undertaken by the respondents.
12. Sounding a contra note, Shri Pushyamitra Bhargava,
learned Additional Advocate General submits that the test laid
down by Apex Court in 1992 Supp (1) SCC 496 (Addl. Secy. to
the Govt. of India vs. Alka Subhash Gadia), is certainly still
applicable, but said test is further clarified in subsequent
judgments of Supreme Court reported in (2008) 3 SCC 613
(State of Maharashtra & Ors. vs. Bhaurao Punjabrao
Gawande) and (2014) 1 SCC 280 (Subhash Popatlal Dave vs.
Union of India & Anr.). The test (iii), (iv) and (v) above on
which petitioner has placed heavy reliance are not applicable in
the factual backdrop of this matter is the next contention of
learned AAG. He submits that neither correctness of allegations
nor sufficiency of material before the Detaining Authority can
be gone into at this stage. If detenu surrenders, gets the copy of
detention order and grounds of detention, he can certainly
WP No.12203/2021
challenge the detention order on relevant grounds including the
ground relating to the decision making process.
13. The detenu is absconding and avoiding detention. His
belated approach to this Court itself shows his conduct and,
therefore, in this discretionary and equity jurisdiction, no
interference may be made. It is further urged that a singular
incident is sufficient to invoke the detention law. The detention
order is passed to prevent the detenu to indulge into actively
prejudicial to public interest.
14. Shri P.Bhargav, learned AAG further informed that a
proclamation has already been issued declaring the detenu as an
absconder.
15. In rejoinder submissions, Shri Prasad, learned counsel for
the petitioner urged that the detenu, by no stretch of imagination
can be said to be "absconding". He is enjoying anticipatory bail
granted to him by a Court of competent jurisdiction. If he was
collecting the material to assail the impugned action/order and
sometime is consumed in that exercise, he cannot be said to be
"absconding". At the cost of repetition, it is argued that the
impugned action of lodging half a dozen FIRs in one night
followed by detention order is example of colourable exercise of
power, which certainly hits the fundamental right flowing from
Article 14 & 21 of the Constitution. The constitutional Court
being repository to the citizens must protect such a citizen from
invocation of detention law in an unlawful manner.
16. The parties confined their arguments to the extent
indicated above.
17. Shri Bhargava provided the original file relating to
detention order for the perusal of this Court.
18. No other point is pressed by the learned counsel for the
parties.
WP No.12203/2021
19. We have heard the learned counsel for the parties at
length and perused the record.
20. Before dealing with the rival submissions, it is profitable
to quote relevant tests from para 30 of the Judgment of the Apex
Court in Alka Subhash Gadia (supra), wherein "Acid Test" is
laid down by the Apex Court in order to decide whether at pre-
execution stage, the writ petition can be entertained. It reads as
under :-
"The courts have the necessary power to
entertain grievances against any detention order
prior to its execution, 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 are necessarily very limit- ed in scope
and number, viz., where the courts are prima facie
satisfied (i) that the 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 abandonment
of the said power or to their denial to the proposed
detenu, but prevents their abuse and the perversion
of the law."
(emphasis supplied)
21. As noticed above, learned counsel for the petitioner
contended that test no.(iii), (iv), and (v) are attracted in the
instant case.
As to Test (iii):-
22. If the present factual backdrop is examined on the anvil
of enabling provision ie. Section 3 of NSA Act, it will not be
possible for us to hold that the detention order is passed for a
'wrong purpose'. The power of detention order as per sub
WP No.12203/2021
section 2 of section 3 can be used against a person to achieve
the following purpose:-
i) for preventing him from acting in any manner
prejudicial to the security of State.
ii) for preventing him from acting in any manner
prejudicial to the maintenance of public order.
iii) for preventing him from acting in any manner
prejudicial to the maintenance of supplies and
services essential to the community."
(emphasis supplied)
23. The file produced before us shows that the District
Magistrate decided to detain the petitioner for preventing him
from acting in a manner which is prejudice to the maintenance
of 'public order'. Thus, we are unable to persuade ourselves with
the line of argument of learned counsel for the petitioner that
the detention order is passed for a wrong purpose. The
Allahabad High Court in Samai Din (supra) opined as under :-
(5) "We find sufficient force in the other
submission also made on behalf of the petitioner,
namely, that the above mentioned ground was
irrelevant and could not be construed as a fact
amounting to breach of or threat to public order. It
is on the face of it an individual crime, which can
be dealt with precisely as a challenge to law and
order, and there is nothing either in the nature or
gravity of the act 'perse' which may impart to it the
character of an invasion of public order. It is not
touched with the faintest sprinkle of public
disorder, A person may commit an isolated act of
cheating or forgery or land-grabbing with regard to
a property, but that will be an individual act and
has to be dealt with merely as a matter relating to
law and order 'simpliciter'. If similar acts are
repeated by the same person and his associates
with frequency, some vestiges of jeopardy to
public order may be discerned; but in the instant
case we find that the incidents, covered by the
other grounds of detention served on the petitioner,
are of an entirely different category, being cases of
violence and assault. Thus, even in conjunction
with the other grounds of detention, ground No. 1
WP No.12203/2021
could not be regarded as relevant for detention in
connection with the maintenance of public order.
The factual allegations recited in this ground pose
a typically law and order problem and do not come
within the contours of of public order."
(emphasis supplied)
24. A microscopic reading of this para makes it clear that
nature, scale/magnitude and gravity of an act and its impact on
public order is relevant factor to determine whether the
detention law is to be invoked. An isolated act or cheating or
land grabbing may not be sufficient to invoke such detention
law but when such act takes place with frequency and is of
severe magnitude, detention law can very well be invoked.
As to Test (iv):-
25. That the detention order and grounds of detention shows
that the detaining authority has taken note of several incidents
of land grabbing by detenu. The authority has taken note of
activity of detenu/land mafia which is not confined to only one
colony namely Hina Palace Colony. The allegation of land
grabbing is of wide and serious magnitude. A careful reading of
averments of detention order does not lead us to the conclusion
that this order is based on vague, extraneous or irrelevant
grounds.
Apart from this, the detention order is not solely vested
on the six FIRs on which heavy reliance is placed by learned
counsel for the petitioner. Apart from FIR, overall conduct of
the detenu and impact on public tempo is taken note of by the
District Magistrate. This Court after considering the catena of
the Apex Court's judgments in Sarabjeet Singh Mokha Vs.
District Magistrate, Jabalpur passed in WP No.10085/2021
opined as under :-
"30. In the connected matter, in the case of
employee of petitioner's hospital namely, Devesh
WP No.12203/2021
Chourasiya (WP No.10177/2021), this Court has
dealt with this aspect in sufficient detail. It is
apposite to reproduce the same.
"24.The learned Senior Counsel for the
petitioner placed reliance on certain
judgments to submit that subjective
satisfaction of detaining authority must be
based on legally admissible cogent material.
It is apposite to examine the legal journey
in this regard. In 1951 SCR 167, (State of
Bombay v. Atma Ram Sridhar Vaidya) a
six judges Bench of Supreme Court held
thus:-
"6.....By its very nature,
preventive detention is aimed at
preventing the commission of an
offence or preventing the detained
person from achieving a certain end.
The authority making the order
therefore cannot always be in
possession of full detailed
information when it passes the
order and the information in its
possession may fall far short of
legal proof of any specific offence,
although it may be indicative of
strong probability of the impending
commission of a prejudicial act...."
(Emphasis supplied)
25. B.K. Mukherjea, J. in 1954 SCR 418
(Shibban Lal Saksena vs. State of U.P.)
followed the said principle and opined as
under:-
"8..............It has been repeatedly
held by this Court that the power to
issue a detention order under Section
3 of the Preventive Detention Act
depends entirely upon the satisfaction
of the appropriate authority specified
in that section. The sufficiency of the
grounds upon which such satisfaction
purports to be based, provided they
have a rational probative value and
are not extraneous to the scope or
purpose of the legislative provision
cannot be challenged in a court of
WP No.12203/2021
law, except on the ground of
malafides [Vide The State of
Bombay v. Atma Ram Sridhar Vaidya,
1951 SCR 167]. A court of law is
not even competent to enquire into
the truth or otherwise of the facts
which are mentioned as grounds of
detention in the communication to
the detenue under Section 7 of the
Act..............The detaining authority
gave here two grounds for detaining
the petitioner. We can neither decide
whether these grounds are good or
bad, nor can we attempt to assess
in what manner and to what extent
each of these grounds operated on
the mind of the appropriate
authority and contributed to the
creation of the satisfaction on the
basis of which the detention order
was made. To say that the other
ground, which still remains, is quite
sufficient to sustain the order, would
be to substitute an objective judicial
test for the subjective decision of the
executive authority which is against
the legislative policy underlying the
statute......."
(Emphasis supplied)
26. A constitution Bench of Apex Court
(1964)4 SCR 921 (Rameshwar Shaw vs.
District Magistrate) ruled that:-
"8. It is, however, necessary to
emphasise in this connection that
though the satisfaction of the
detaining authority contemplated by
Section 3(1)(a) is the subjective
satisfaction of the said authority,
cases may arise where the detenu
may challenge the validity of his
detention on the ground of mala
fides and in support of the said plea
urge that along with other facts
which show mala fides the Court
may also consider his grievance that
the grounds served on him cannot
WP No.12203/2021
possibly or rationally support the
conclusion drawn against him by the
detaining authority. It is only in this
incidental manner and in support of
the plea of mala fides that this
question can become justiciable;
otherwise the reasonableness or
propriety of the said satisfaction
contemplated by Section 3(1)(a)
cannot be questioned before the
Courts."
(Emphasis supplied)
27. A three judges Bench in (1973) 3
SCC 250 (Mohd. Subrati vs. State of West
Bengal) held as under:-
"3........This jurisdiction is different from
that of judicial trial in courts for
offences and of judicial orders for
prevention of offences. Even unsuccessful
judicial trial or proceeding would,
therefore, not operate as a bar to a
detention order, or render it mala fide. The
matter is also not res integra."
(Emphasis supplied)
28. Reference may be made to 1988 (1) SCC
296 (K. Aruna Kumari vs. Govt. of A.P.) wherein
the Court held that :-
"8.......It is true that it may not be a
legally recorded confession which can
be used as substantive evidence against
the accused in the criminal case, but it
cannot be completely brushed aside on
that ground for the purpose of his
preventive detention....."
(Emphasis supplied)
29. In (1990) 1 SCC 35 (State of Punjab vs.
Sukhpal Singh), it was again held that:-
"9. ..... The High Court under Article 226
and Supreme Court under Article 32 or 136
do not sit in appeal from the order of
preventive detention. But the court is only
to see whether the formality as enjoined
by Article 22(5) had been complied with by
the detaining authority, and if so done, the
court cannot examine the materials
before it and find that the detaining
WP No.12203/2021
authority should not have been satisfied
on the materials before it and detain the
detenu. In other words, the court cannot
question the sufficiency of the grounds of
detention for the subjective satisfaction
of the authority as pointed out in Ashok
Kumar v. Delhi Administration [(1982) 2
SCC 437 : 1982 SCC (Cri) 466 : AIR 1982
SC 1143 : (1982) 3 SCR 707] . Those who
are responsible for the national security or
for the maintenance of public order must be
the judges of what the national security or
public order requires. Preventive detention
is devised to afford protection to society.
The object is not to punish a man for
having done something but to intercept
before he does it and to prevent him from
so doing. The justification for such
detention is suspicion or reasonable
probability and not criminal conviction
which can only be warranted by legal
evidence. Thus, any preventive measures
even if they involve some restraint or
hardship upon individuals, do not partake
in any way of the nature of punishment, but
are taken by way of precaution to prevent
mischief to the State. There is no reason
why executive cannot take recourse to its
powers of preventive detention in those
cases where the executive is genuinely
satisfied that no prosecution can possibly
succeed against the detenu because he has
influence over witnesses and against him
no one is prepared to depose...."
(Emphasis supplied)
30. In Ram Bali Rajbhar (supra), M.H. Beg, J.
expressed the view on behalf of the bench :-
"13. We think that the High Court of
Calcutta, while dismissing the writ
petition, need not have expressed any
opinion about the worth of the affidavit
sworn by Lal Mohan Jadav, the tea shop
owner. That, we think, is the function of
authorities constituted under the Act for
deciding questions of fact. On a habeas
corpus petition, what has to be considered
WP No.12203/2021
by the Court is whether the detention is
prima facie legal or not, and not whether
the detaining authorities have wrongly or
rightly reached a satisfaction on every
question of fact...."
(Emphasis supplied)
31. Before dealing with aforesaid
judgments of Supreme Court, it is apposite to
mention that an order of detention was
treated to be an administrative order by
Supreme Court in 1975(2) SCC 81
(Khudiram Das vs. State of West Bengal).
This principle was followed by Full Bench of
Allahabad High Court in 1985 SCC Online
608 (Mannilal vs. Superintendent of
Central Jail, Naini, Allahabad). This Court
in 1989 CRLJ 978 (Brajraj vs. District
Magistrate, Gwalior & Anr.) followed the
dicta aforesaid and opined that order of
detaining authority is an administrative
order."
(Emphasis Supplied)
31. In view of aforesaid judgments of Supreme
Court, we may cull out the principles as under:-
[1] It is not necessary that authority
passing the detention order must always be in
possession of complete information at the time of
passing the order.
[2] The information on the strength of
which detention order is passed may fall far short
of legal proof of any specific offence. If order
indicates strong probability of impending
commission of a prejudicial act, it is sufficient for
passing a detention order.
[3] The Court is not obliged to enquire
into the correctness/truth of facts which are
mentioned as grounds of detention.
[4] Whether grounds of detention
mentioned in the order are good or bad is within
the domain of competent authority.
[5] The satisfaction of competent authority
in passing the detention order can be assailed on
limited grounds including the ground of mala-fide
and no evidence at all.
[6] The jurisdiction under the NSA is
different from that of judicial trial in courts for
WP No.12203/2021
offence and of judicial orders for prevention of
offence. Even unsuccessful judicial trial would
not operate as a bar to a detention order or make it
mala-fide.
[7] An improperly recorded confession
u/S.161 of Cr.P.C cannot be used as substantive
evidence against the accused in criminal case but it
cannot be completely brushed aside on that
ground for the purpose of preventive detention.
[8] The Court cannot examine the
materials before it and give finding that detaining
authority should not have been satisfied on the
material before it. The sufficiency of ground of
detention can not be subject matter of judicial
review.
[9] The justification for detention is
suspicion or reasonable probability and not
criminal conviction which can only be warranted
by legal evidence. Thus, it is called as 'suspicious
jurisdiction'.
[10] In a habeas corpus petition, Court
needs to examine whether detention is prima-facie
legal or not and is not required to examine whether
subjective satisfaction on a question of fact is
rightly reached or not.
[11] The statements/evidence gathered
during investigation falls within the ambit of
"some evidence" which can form basis for
detaining a person.
[12] The detention order is an
administrative order."
(emphasis supplied)
26. It was made clear that scope of NSA is different than that
of judicial trial in Courts for offences and all judicial orders for
prevention of offences. Even unsuccessful judicial trial would
not operate as bar for the detaining authority to detain a person.
Even order of acquittal in judicial trial will not put an embargo
on the power of detention nor any such detention order can be
termed as malafide. Thus, the final report of Lokayukt, accepted
by Special Judge or two anticipatory bail orders do not mean
that the detaining authority has passed the order of detention on
WP No.12203/2021
any extraneous or irrelevant grounds.
27. During the course of hearing, learned counsel for the
petitioner pointed out that a proclamation under section 82 of
the Cr.P.C is issued and the detenu is declared as absconder on
09.09.2021. In the case of Bhaurao Punjabrao Gawande
(supra), the Apex Court opined 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 pre-execution or
pre-arrest stage unless the Court is satisfied that
there are exceptional circumstances specified in
Alka Subhash Gadia. 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."
(emphasis supplied)
28. In Subhash Popatlal Dave (supra), the Apex Court held
as under :-
"....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.
WP No.12203/2021
..... 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. In any view,
subsequent events are not on record in present
case. Nor would it be relevant to adjudicate the
correctness of the detention orders at this stage,
when the Supreme Court has no occasion to peruse
the materials which prompted them to pass the
order of preventive detention. Nevertheless, it is
held that the orders of detention are not fit to be
queshed merely because there is no live link
between the existing period and situation and the
date on which the order of detention was passed.
The long lapse of time will not be a valid
consideration to set aside the order of detention for
present case."
(emphasis supplied)
29. It is settled that the detenu cannot ordinarily seek a writ
from this Court without surrendering and without obtaining the
order of detention and grounds thereof. The exception to this
ordinarily procedure is laid down in the case of Smt. Alka
Subhash Gadia (supra) but in our opinion, the necessary
ingredients to satisfy the said test are not available in the instant
case.
As to Test (v):-
30. This test was although relied upon, no amount of
arguments were advanced to show that the District Magistrate
did not have authority to pass the detention order. The only
argument vaguely raised is that the "Collector/District
Magistrate" is loosely used by the authority which shows his
non-application of mind.
31. In our view, non-application of mind and competence are
two different facets and on the basis of this argument, we are
unable to hold that test (v) above is satisfied and the District
WP No.12203/2021
Magistrate was not competent.
32. The record shows that the Central Government has
passed necessary order and approved the detention order. Thus,
last contention of the learned counsel for the petitioner will not
pales into insignificance.
33. In view of foregoing analysis, we are unable to hold that
the necessary ingredients on the strength of which interference
can be made at pre-execution stage are available in the instant
case. Thus, interference at this stage is declined.
34. It is made clear that it will be open to the detenu to
surrender, obtain the detention order and grounds of detention
and assail it in appropriate fresh proceedings.
35. With the aforesaid observations, the petition stands
dismissed.
(Sujoy Paul) (Anil Verma)
Judge Judge
vm/soumya/sourabh
Digitally signed by
SOURABH YADAV
Date: 2021.09.22
17:03:16 +05'30'
