REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL CRIMINAL JURISDICTION

WRIT PETITION (CRL.) NO.77 OF 2008

Deepak Bajaj ..     Appellant (s)

-versus-

State of Maharashtra & Anr. .. Respondent (s)

J U D G M E N T

Markandey Katju, J.

1. This  writ  petition  under  Article  32  of  the  Constitution  of

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India  has  been  filed  to  challenge  the  detention  order  dated

22.05.2008 passed against the petitioner, Deepak Gopaldas Bajaj,

resident  of  Mumbai  under  Section  3(1)  of  the  Conservation  of

Foreign  Exchange  and  Prevention  of  Smuggling  Activities  Act,

1974 (in short `the Act’), copy of which is Annexure P-1 to this

petition.

2. Heard  Shri  Soli  Sorabjee,  learned  senior  counsel  for  the

petitioner and Shri Shekhar Nafade and Shri Ravindra Keshavrao

Adsure,  learned  counsels  for  the  respondents  and  perused  the

record.  

3. An objection has been taken by the learned counsels for the

respondents that this petition should not be entertained because the

petition  has  been  filed  at  a  pre-execution  stage  i.e.  before  the

petitioner has surrendered or was arrested.  Learned counsel for the

respondents has relied on the decisions of this Court in  State of

Maharashtra  vs.  Bhaurao Punjabrao Gawande AIR 2008 SC

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1705, which has followed the decision of this Court in Additional

Secretary to the Government of  India & Ors.  vs.  Smt. Alka

Subhash Gadia & Anr. 1992 (Suppl.1) SCC 496, and the other

decisions of this Court in Rajinder Arora vs.  Union of India &

Ors. 2006 (4) SCC 796, Alpesh Navinchandra Shah vs. State of

Maharashtra & Ors. 2007 (2) SCC 777, etc.  

4. We have carefully perused the aforesaid decisions and we are

of the opinion that the legal position regarding the power of this

Court or the High Court to set aside a preventive detention order at

the pre execution stage needs to be further explained.

5. Since  the  aforesaid  decisions  have  basically  followed  the

decision  of  this  Court  in  Additional  Secretary  to  the

Government of India & Ors. vs.  Smt. Alka Subhash Gadia &

Anr. (supra), it would be useful to refer to the aforesaid decision.

In paragraph 30 of the aforesaid decision in Smt. Alka Subhash

Gadia’s case (supra) this Court observed :  

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“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  Article  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 Articles  226 and 32 are wide, and are untrammeled 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 self-restraints  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 self-evolved judicial  policy and in conformity with the self-imposed  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  Articles 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 extraordinary  powers  are  used  and  are  declined  to  be used  by  the  courts.  To  accept  Shri  Jain’s  present contention would mean that the courts should disregard

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all  these  time-honoured  and  well-tested  judicial  self- restraints  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.”

6. We have carefully perused the above observations in  Smt.

Alka Subhash Gadia’s case (supra) and we are of the opinion that

the  five  grounds  mentioned  therein  on  which  the  Court  can  set

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aside  the  detention  order  at  the  pre  execution  stage  are  only

illustrative not exhaustive.

7. It is well settled that a judgment of a Court is not to be read

mechanically as a Euclid’s theorem nor as if it was a statute.

8. On the  subject  of  precedents  Lord  Halsbury,  L.C.,  said  in

Quinn  vs. Leathem, 1901 AC 495 :

“Now  before  discussing  the  case  of  Allen  Vs.  Flood (1898) AC 1 and what was decided therein, there are two observations  of  a  general  character  which  I  wish  to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the  particular  facts  proved  or  assumed  to  be  proved, since  the  generality  of  the  expressions  which  may  be found  there  are  not  intended  to  be  expositions  of  the whole  law,  but  are  governed  and  qualified  by  the particular facts of the case in which such expressions are to be found.  The other is that a case is only an authority for what it actually decides.  I entirely deny that it can be quoted  for  a  proposition  that  may  seem  to  follow logically from it.  Such a mode of reasoning assumes that the  law  is  necessarily  a  logical  Code,  whereas  every lawyer  must  acknowledge  that  the  law  is  not  always logical at all.”

We entirely agree with the above observations.

9. In  Ambica Quarry Works vs.  State of Gujarat & others

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(1987) 1 SCC 213 (vide paragraph 18) this Court observed :

“The  ratio  of  any  decision  must  be  understood  in  the background of the facts of that case.  It has been said a long time ago that a case is only an authority for what it actually decides and not what logically follows from it”.

10. In  Bhavnagar  University vs.  Palittana  Sugar  Mills  Pvt.

Ltd. (2003) 2 SCC 111 (vide paragraph 59), this Court observed :

“It  is  well  settled  that  a  little  difference  in  facts  or additional  facts  may  make  a  lot  of  difference  in  the precedential value of a decision”.

11. As held in Bharat Petroleum Corporation Ltd. & another

vs.  N.R. Vairamani & another (AIR 2004 SC 4778), a decision

cannot be relied on without disclosing the factual situation.  In the

same judgment this Court also observed :

“Courts  should not  place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor  as  provisions  of  the  statute  and that  too taken out  of  the context.   These  observations  must  be read in the context  in which they appear to have been stated.  Judgments of Courts are not to be construed as statutes.  To interpret words, phrases and provisions of a statute,  it  may become necessary for judges to embark into lengthy discussions  but  the discussion is  meant to

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explain and not to define.  Judges interpret statutes, they do  not  interpret  judgments.   They  interpret  words  of statutes; their words are not to be interpreted as statutes”.

(emphasis supplied)

12. In  London Graving Dock Co. Ltd. vs.  Horton (1951 AC

737 at page 761), Lord Mac Dermot observed :

“The  matter  cannot,  of  course,  be  settled  merely  by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of  interpretation  appropriate  thereto.   This  is  not  to detract from the great weight to be given to the language actually used by that most distinguished judge”.

13. In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294)

Lord Reid Said, “Lord Atkin’s speech … is not to be treated as if it

was  a  statute  definition;  it  will  require  qualification  in  new

circumstances, Megarry, J. in (1971) 1 WLR 1062 observed :

“One  must  not,  of  course,  construe  even  a  reserved judgment  of  Russell  L.J.  as  if  it  were  an  Act  of Parliament”.

14. And in  Herrington vs.  British Railways Board (1972 (2)

WLR 537) Lord Morris said :

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“There is always peril  in treating the words of a speech  or  judgment  as  though  they  are  words  in  a legislative  enactment,  and  it  is  to  be  remembered  that judicial utterances are made in the setting of the facts of a particular case.

Circumstantial  flexibility,  one  additional  or different fact may make a world of difference between conclusions in two cases.  Disposal of cases by blindly placing  reliance  on  a  decision  is  not  proper.   The following  words  of  Lord  Denning  in  the  matter  of applying precedents have become locus classicus :

Each case depends  on  its  own facts  and a  close similarity between one case and another  is  not  enough because  even  a  single  significant  detail  may  alter  the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of another.  To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

Precedent  should  be  followed  only  so  far  as  it marks  the  path  of  justice,  but  you  must  cut  the  dead wood and trim off the side branches else you will find yourself  lost  in  thickets  and  branches.   My plea  is  to keep the path of justice clear of obstructions which could impede it.”       

(emphasis supplied)

15. The same view was taken by this Court in  Sarva Shramik

Sanghatana (K.V.), Mumbai vs.  State of Maharashtra & Ors.

AIR 2008 SC 946 and in Government of Karnataka & Ors. vs.

Gowramma & Ors. AIR 2008 SC 863.   

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16. Shri Shekhar Nafade learned senior counsel for the State of

Maharashtra submitted that the five conditions mentioned in Smt.

Alka  Subhash  Gadia’s case  (supra)  were  exhaustive  and  not

illustrative.  We cannot agree.  As already stated above, a judgment

is not a statute, and hence cannot be construed as such.  In  Smt.

Alka Subhash Gadia’s case (supra) this Court only wanted to lay

down the principle that entertaining a petition against a preventive

detention order at a pre- execution stage should be an exception

and not the general rule.  We entirely agree with that proposition.

However, it would be an altogether different thing to say that the

five  grounds  for  entertaining  such a  petition  at  a  pre  execution

stage mentioned in  Smt. Alka Subhash Gadia’s case (supra) are

exhaustive.  In our opinion they are illustrative and not exhaustive.

17. If  a person against whom a prevention detention order has

been passed can show to the Court that the said detention order is

clearly illegal why should he be compelled to go to jail?  To tell

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such a person that  although such a detention order  is  illegal  he

must yet go to jail though he will be released later is a meaningless

and futile exercise.   

18. It must be remembered that every person has a fundamental

right  of  liberty  vide Article  21  of  the  Constitution.   Article  21,

which gives the right of life and liberty, is the most fundamental of

all the Fundamental Rights in the Constitution.  Though, no doubt,

restrictions can be placed on these rights in the interest of public

order,  security  of  the  State,  etc.  but  they  are  not  to  be  lightly

transgressed.

19. In  Ghani vs.  Jones (1970)1 Q.B. 693 (709) Lord Denning

observed :

“A man’s liberty of movement is regarded so highly by the  law  of  England  that  it  is  not  to  be  hindered  or prevented except on the surest ground”

20. The above observation has been quoted with approval by this

Court in Govt. of Andhra Pradesh vs.  P. Laxmi Devi J.T. 2008

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(2) SC 639 (vide para 90).

21. If  a  person  is  sent  to  jail  then  even if  he  is  subsequently

released, his reputation may be irreparably tarnished.  As observed

by  this  Court  in  State  of  Maharashtra  &  Ors.   vs.  Public

Concern for Governance Trust & Ors.  2007 (3) SCC 587, the

reputation of a person is a facet of his right to life under Article 21

of  the  Constitution  (vide  paragraphs  39  and  40  of  the  said

decision).  

22. As  observed  by  the  three  Judge  bench  of  this  Court  in

Joginder Kumar vs.  State of U.P. & Ors. AIR 1994 SC 1349

(vide para 24) :

“………..The  existence  of  the  power  to  arrest  is  one thing.   The  justification  for  the  exercise  of  it  is  quite another.  The Police Officer must be able to justify the arrest  apart  from  his  power  to  do  so.   Arrest  and detention  in  police  lock-up  of  a  person  can  cause incalculable harm to the reputation and self-esteem of a person.”  

                                               (emphasis supplied)

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23. In the Geeta Lord Krishna said to Arjun :

“lEÒkforL; pkdhfrZeZj.kknfrfjP;rs”

(Geeta : Chapter 2 Shloka 34)

which means -

“For a self respecting man, death is preferable to dishonour”

24. If  a person against  whom a preventive detention order has

been passed comes to Court at the pre execution stage and satisfies

the  Court  that  the  detention  order  is  clearly  illegal,  there  is  no

reason  why  the  Court  should  stay  its  hands  and  compel  the

petitioner  to  go  to  jail  even  though  he  is  bound  to  be  released

subsequently (since the detention order was illegal).  As already

mentioned above, the liberty of a person is a precious fundamental

right under Article 21 of the Constitution and should not be likely

transgressed.  Hence in our opinion Smt. Alka Subhash Gadia’s

case (supra)  cannot  be construed to mean that  the  five grounds

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mentioned  therein  for  quashing  the  detention  order  at  the  pre

execution stage are exhaustive.

25. In Francis Coralie Mullin vs. Union territory of Delhi AIR

1981 SC 746 this Court observed (vide para 3) :

“ ….the power of preventive detention is a frightful and awesome  power  with  drastic  consequences  affecting personal liberty, which is the most cherished and prized possession of man in a civilized society.  It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused.”

26. In Francis Coralie Mullin vs. W.C. Khambra and others

AIR 1980 SC 849 this Court observed (vide para 5) :

“No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired”

27. Apart from the above, in our opinion non-placement of the

relevant  materials  before  the  Detaining  Authority  vitiates  the

detention order,  and grounds  (iii)  & (iv) of  the  decision of  this

Court in Alka Subhash Gadia’s case (supra) are attracted in such

a situation as held in Rajinder Arora  vs. Union of India (supra)

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(vide para 25 of the said decision).  Hence, even if we treat the five

exceptions mentioned in  Alka Subhash Gadia’s  case (supra) as

exhaustive,  the  present  case  is  covered  by  the  3rd  and  4th

exceptions of those five exceptions, as held in  Rajinder Arora’s

case (supra).

28. Learned counsel for the respondent submitted that a writ of

habeas corpus lies only when there is illegal detention, and in the

present case since the petitioner has not yet been arrested, no writ

of habeas corpus can be issued.  We regret we cannot agree, and

that for  two reasons.   Firstly,  Article 226 and Article 32 of the

Constitution permit the High Court and the Supreme Court to not

only  issue  the  writs  which  were  traditionally  issued  by  British

Courts but these Articles give much wider powers to this Court and

the High Court.  This is because Article 32 and Article 226 state

that  the  Supreme Court  and  High  Court  can  issue  writs  in  the

nature of habeas corpus, mandamus, certiorari, etc. and they can

also  issue  orders  and  directions  apart  from issuing  writs.   The

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words ‘in the nature of’ imply that the powers of this Court or the

High  Court  are  not  subject  to  the  traditional  restrictions  on  the

powers of the British Courts to issue writs. Thus the powers of this

Court and the High Court are much wider than those of the British

Courts  vide  Dwarka  Nath   vs.   Income-tax  Officer,  Special

Circle, D Ward, Kanpur & Anr. AIR 1966 SC 81 (vide para 4),

Shri  Anadi  Mukta  Sadguru  Shree  Muktajee  Vandasjiswami

Suvarna Jayanti  Mahotsav  Smarak Trust  & Ors.   vs.   V.R.

Rudani  & Ors. AIR 1989  SC 1607  (vide  para  16  to  18),  etc.

Secondly, what the petitioner really prays for is a writ in the nature

of certiorari to quash the impugned detention order and/or a writ in

the  nature  of  mandamus  for  restraining  the  respondents  from

arresting him.  Hence even if the petitioner is not in detention a

writ of certiorari and/or mandamus can issue.   

29. The celebrated writ of habeas corpus has been described as `a

great constitutional privilege of the citizen’ or `the first security of

civil liberty’.  The writ provides a prompt and effective remedy

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against illegal detention and its purpose is to safeguard the liberty

of  the  citizen  which  is  a  precious  right  not  to  be  lightly

transgressed by anyone.  The imperative necessity to protect those

precious  rights  is  a  lesson  taught  by  all  history  and  all  human

experience.  Our founding fathers have lived through bitter years

of the freedom struggle and seen an alien government trample upon

the human rights  of  our  citizens.   It  is  for this  reason that they

introduced Article 21 in the Constitution and provided for the writs

of habeas corpus, etc.

30. In  R   vs. Secretary of State for Home Affairs; ex parte

O'Brien (1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797, Scrutton,

LJ observed:

“The  law  in  the  country  has  been  very zealous  of  any infringement  of  personal  liberty. This  case  is  not  to  be  exercised  less  vigilantly, because the subject  whose liberty is  in  question may not be particularly meritorious. It  is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all. You really believe in freedom of speech if you are willing to allow it to men whose opinion seem to

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you wrong and even dangerous; and the subject is entitled only to be deprived of his liberty by due process of law, although that due process if taken will  probably  send  him  to  prison.  A  man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction. It is quite possible, even probable, that the subject in this case is guilty of high treason; he is still entitled only to be deprived of his liberty by due process of law.

                                               (emphasis supplied)

31. As early as in 1627, the following memorable observations

were made by Hyde, C.J. in Darnel, Re, (1627) 3 St Tr. 1:

“Whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it, and  if  it  appears  that  any  man  hath  injury  or wrong  by  his  imprisonment,  we  have  power  to deliver and discharge him, if otherwise, he is to be remanded by us to prison.”

32. In Halsbury's Laws of England, (4th Edn., Vol.11, para 1454,

p.769), it is stated:

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“In any matter involving the liberty of  the subject the action of the Crown or its ministers or officials is subject to the supervision and control of the judges on habeas corpus. The judges owe a duty  to  safeguard  the  liberty  of  the  subject  not only to the subjects of the Crown, but also to all persons  within  the  realm  who  are  under  the protection of the Crown and entitled to resort to the  courts  to  secure any rights  which they may have,  and this  whether they are alien friends  or alien  enemies.  It  is  this  fact  which  makes  the prerogative  writ  of  the  highest  constitutional importance,  it  being  a  remedy  available  to  the lowliest  subject  against  the  most  powerful.  The writ has frequently been used to test the validity of acts of the executive and, in particular, to test the  legality  of  detention  under  emergency legislation.  No  peer  or  lord  of  Parliament  has privilege of peerage or Parliament against  being compelled to render obedience to a writ of habeas corpus directed to him.”  

  33. Coming now to  the  merits  of  the  case.   A perusal  of  the

grounds of detention which have been annexed as Annexure P-2 to

this petition shows that, the basic allegations against the petitioner

are that  he imported 29 consignments of goods duty free which

were meant to be used as raw material for manufacture of goods

which should have been exported, but instead, he sold them in the

local  market.   It  is  also  alleged  that  he  obtained  duty  free

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replenishment certificate (DFR) and misused the same.  Various

other allegations have also been made in the grounds of detention

which runs into as many as 76 pages.

34. Several submissions have been made by Shri Soli Sorabjee,

learned  counsel  for  the  petitioner,  but  in  our  opinion  it  is  not

necessary to go into all of them since we are inclined to allow this

petition on one of these grounds namely, that the relevant material

was not placed before the Detaining Authority when he passed the

detention order.

35. These relevant materials have been stated in the writ petition

in  ground  ‘C’  entitled  ‘Non-placement  of  relevant  material

documents  by Sponsoring Authority leading to  consequent  non-

consideration thereof by the Detaining Authority’.

36. A large number of documents have been referred therein, but

we  agree  with  Mr.  Shekhar  Nafade,  learned  counsel  for  the

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respondent that it is not necessary for the Detaining Authority to

consider  or  refer  to  the  materials  which  were  irrelevant  to  the

activities mentioned in Section 3(1) of the Act.  However, we agree

with Shri Soli Sorabjee that some of the materials were relevant

and should have been placed before the Detaining Authority and

considered  by  him,  but  they  were  neither  placed  before  the

Detaining Authority nor were they considered.

37. The  most  important  of  these  documents  which  were  not

placed before the Detaining Authority were the retractions given

by  Kuresh  Rajkotwala  to  the  DRI  dated  4.12.2006,  Kuresh

Rajootwala’s  affidavit  filed  before  the  learned  Addl.  Chief

Metropolitan  Magistrate,  Esplanade,  Mumbai,  Bharat  Chavhan’s

retraction to DRI dated 9.5.2008, Bipin Thaker’s retraction to DRI

dated 19.1.2008, Sharad Bhoite’s retraction dated 24.4.2007 before

the Addl. Chief Metropolitan Magistrate, Esplanade Mumbai and

its affidavit filed before the same authority etc.

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38. Shri Nafade, learned counsel submitted that these retractions

were made before the DRI and the Additional Chief Metropolitan

Magistrate, and not before the Sponsoring Authority who was the

Additional  Director  of  Revenue  Intelligence.   Shri  Nafade

submitted that  the Sponsoring Authority was not aware of these

retractions and hence he could not have placed them before the

Detaining Authority.  We find no merit in this submission.

39. Most of the retractions were made to the DRI, and he belongs

to the same department as the Sponsoring Authority, who is the

Additional Director, Revenue Intelligence.  Hence, it was the duty

of the DRI to have communicated these retractions of the alleged

witnesses  to the Sponsoring Authority,  as  well  as  the  Detaining

Authority.  There is no dispute that these retractions were indeed

made by persons who were earlier said to have made confessions.

These confessions were taken into consideration by the Detaining

Authority when he passed the detention order.  Had the retractions

of the persons who made these confessions also been placed before

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the Detaining Authority it is possible that the Detaining Authority

may not have passed the impugned detention order.  Hence, in our

opinion,  the retractions of  the confessions should certainly have

been placed before the Detaining Authority, and failure to place

them before him, in our opinion, vitiates the detention order.

40. It has been repeatedly held by this Court that if a confession

is  considered  by  the  Detaining  Authority  while  passing  the

detention order the retraction of the confession must also be placed

before him and considered by him, otherwise the detention order is

vitiated.  Thus in  Ashadevi  vs.  K. Shivraj & another 1979 (1)

SCC 222 this Court observed (vide para 7) :

“Further,  in  passing  the  detention  order  the  detaining authority  obviously  based  its  decision  on  the  detenu’s confessional statements of December 13 and 14, 1977 and, therefore, it was obligatory upon the Customs Officers to report the retraction of those statements by the detenu on December  22,  1977  to  the  detaining  authority,  for,  it cannot be disputed that the fact of retraction would have its  own  impact  one  way  or  the  other  on  the  detaining authority  before  making  up  its  mind  whether  or  not  to issue the impugned order of detention. Questions whether the confessional statements recorded on December 13 and 14,  1977  were  voluntary  statements  or  were  statements which  were  obtained  from  the  detenu  under  duress  or

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whether the subsequent  retraction of those statements by the detenu on December 22, 1977 was in the nature of an after-thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one  way  or  the  other  were  neither  placed  before  nor considered by the detaining authority it must be held that there was non-application of mind to the most material and vital  facts  vitiating  the  requisite  satisfaction  of  the detaining  authority  thereby  rendering  the  impugned detention order invalid and illegal”.

41. It may be noted that in the above decision, this Court has held

that it was the duty of the Customs Officer to have reported the

retraction  of  the  statements  to  the  Detaining  Authority.   Hence,

even if the retractions in the present case were not placed before

the  Detaining  Authority  that  will  not  be  of  any  avail  to  the

respondents  since  it  has  been  held  that  it  was  the  duty  of  the

authorities  before  whom  the  retractions  were  made  to  have

forwarded  them to  the  Detaining  Authority  and  the  Sponsoring

Authority.  We entirely agree with the above view.

42. In Adishwar Jain vs. Union of India and another 2006(11)

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SCC 339 this Court observed that where the relevant documents

have not been placed before the Detaining Authority, issuing of the

detention order itself would become vitiated.  The same view was

taken in V.C. Mohan vs. Union of India AIR 2002 SC 1205.

43. In  Alka Subhash Gadia’s (supra)  this  Court  followed  its

earlier decision in Rajinder Arora’s case (supra) in which case it

was held that failure to place the retraction of the confession before

the detaining authority vitiated the detention order.  The same view

was taken by this Court in P. Saravanan vs. State of Tamil Nadu

and  others 2001(10)  SCC  212,   Ahmed  Nassar vs.  State  of

Tamil Nadu and others 1999(8) SCC 473, Sita Ram Somani vs.

State of Rajasthan AIR 1986 SC 1072, etc.

44. In  Union of India & others vs.  Manoharlal Narang  1987

(2) SCC 241 this Court deprecated the contention that the detaining

authority is  not  required to collect  all  materials  about any court

proceedings etc from different Ministries or Departments for the

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purpose of issuance of a detention order.  The Court observed that

non-consideration of  a relevant  material  will  certainly invalidate

the detention order.  We respectfully agree with the above view,

and reiterate it.  

45. In  A. Sowkath Ali vs.  Union of India and others 2000(7)

SCC 148 this Court observed that if the Detaining Authority has

relied  on  a  confessional  statement  then  the  retraction  of  that

confession  should  also  have  been  placed  before  the  Detaining

Authority, and should have been considered by it, and failure to do

so would invalidate the detention order.

46. In  our  opinion,  failure  to  place  the  retractions  and  other

materials  referred  to  in  paragraph  4  of  the  petition  before  the

Detaining Authority would certainly vitiate the impugned detention

order.

47. Shri  Soli  Sorabjee,  learned  counsel  for  the  petitioner  also

submitted  that  the  petitioner  had  stopped  his  alleged  illegal

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activities in 2006 and hence the detention of the petitioner now

would be illegal.    He has relied on a decision of this Court in

Maqsood  Yusuf  Merchant vs.  Union  of  India  and  another

Criminal Apeal No. 1337 of 2008 decided on 22.8.2008 by this

Bench.  In that decision it was observed that the activities of the

accused who was said  to have indulged in unlawful activities were

of the year as far back as 2002, and thereafter the appellant had not

indulged in similar activities. Hence it was held that continuing the

order of detention today would be an exercise of futility and the

same should not be given effect to any further.

48. Shri Soli Sorabjee also relied on a decision of this Court in

Alpesh  Navinchandra  Shah vs.  State  of  Maharashtra  and

others 2007(2) SCC 777(vide para 57) etc.

49. Shri Soli Sorabjee, learned counsel, invited our attention to

ground ‘B’ in the Writ Petition in which it has been stated that the

petitioner has not done any business after November 2006 when

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the alleged last consignment was cleared by the petitioner.  This

averment has not been rebutted in the counter affidavit filed by the

respondent.  Hence, Shri Sorabjee submitted that there is now no

live link between the alleged prejudicial activities and the purpose

of detention now.  He has also relied upon the decisions of this

Court in T.A. Abdul Rehman vs. State of Kerala and others AIR

1990  SC  225  State  of  Maharashtra vs.  Bhaurao  Punjabrao

Gawande AIR 2008 SC 1705 etc.

50. In our opinion, it is not necessary to go into this submission

of Shri Soli Sorabjee since we are of the opinion that the petition

deserves  to  be  allowed  on  the  first  ground,  namely,  that  the

relevant material was not placed before the Detaining Authority,

and this vitiates the detention order.

51. The detention  order in  our  opinion was clearly  illegal  and

deserves to be set aside.  We order accordingly. The writ petition is

allowed.  The impugned detention order dated 22.5.2008 stands

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quashed. No costs.

………………………..J. (Altamas Kabir)

………………………..J. (Markandey Katju)

New Delhi; November 12, 2008

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