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PETITIONER: KANCHANLAL MANEKLAL CHOKSHI

       Vs.

RESPONDENT: THE STATE OF GUJARAT AND ORS.

DATE OF JUDGMENT23/07/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH SHINGAL, P.N.

CITATION:  1979 AIR 1945            1980 SCR  (1)  54  1979 SCC  (4)  14  CITATOR INFO :  RF         1981 SC1191  (9)  F          1982 SC   8  (8,10)  R          1983 SC1130  (11)  F          1987 SC2332  (14)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling  Activities   Act,   1974-Failure   of   detaining authority  to  consider  possibility  of  prosecution  being launched-If could  lead to  the  conclusion  that  it  never applied its mind-Order of detention if void on that ground.

HEADNOTE:      In Ashok Murlidhar v. State of Gujarat a Division Bench of the  High Court thought that this Court in Hardhan Saha & Anr. v.  The State  of West  Bengal & Ors., [1975] 1 SCR 778 laid down  that where  a person  was sought  to be  detained preventively the possibility of a prosecution being launched was an  irrelevant consideration which need never be present to the mind of the detaining authority. Purporting to follow this decision  another Division  Bench  of  the  High  Court rejected the habeas corpus petition of the appellant who was in preventive detention under the provisions of Conservation of Foreign  Exchange and  Prevention of Smuggling Activities Act, 1974.  The Division  Bench certified that a substantial question whether it is necessary for the detaining authority to consider  whether a person should be prosecuted before an order of  detention is made against him needed to be decided by this Court.      In appeal  to this  Court it was contended on behalf of the appellant  that it  was  axiomatic  that  the  detaining authority  must   invariably  consider  the  possibility  of launching a prosecution before making an order of detention, in the  absence of which the order of detention must be held to be bad.      Dismissing the appeal, ^      HELD: 1.  In Hardhan Saha’s case this Court did not say that the  possibility of a prosecution being launched was an irrelevant consideration  which need never be present to the mind of  the detaining  authority. All that was laid down in

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that case  was that  the mere circumstance that a detenu was liable to  be prosecuted  was not  by itself  a bar  to  the making of  an order  of preventive  detention. It  does  not follow therefrom that failure to consider the possibility of a  prosecution  being  launched  cannot  ever  lead  to  the conclusion that  the detaining  authority never  applied its mind and  the order of detention was, therefore, bad. [57 F- G]      2. The  principles emerging  from a review of the cases decided by this Court are that the ordinary criminal process is not to be circumvented or short-circuited by ready resort to  preventive   detention,  but  that  the  possibility  of launching a  criminal prosecution  is not an absolute bar to an order  of preventive  detention. Nor is it correct to say that if  such possibility  is not present to the mind of the detaining authority  the order  of detention  is necessarily bad. However,  the failure  of the  detaining  authority  to consider the possibility of launching a criminal prosecution may, in  the circumstances of a case, lead to the conclusion that the detaining authority had not applied 55 its mind  to the  vital question whether it was necessary to make an  order of   preventive  detention. Where  an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an  ordinary  criminal  prosecution  could  well  serve  the purpose, the detaining authority must satisfy the court that the question  too was  borne in  mind before  the  order  of detention was  made. If  the detaining  authority  fails  to satisfy the  court that the detaining authority so borne the question in mind the court would be justified in drawing the inference that  there was  no application of the mind of the detaining authority  to the  vital question  whether it  was necessary to preventively detain the detenu. [60 A-D]      In the  instant case the grounds of detention served on the appellant  contained a very elaborate statement of facts quite clearly  pointing to an application of the mind by the detaining authority.  The appellant  did not complain in his petition that  the detaining  authority had  not applied its mind and  in particular  had not  considered the question of the possibility  of a  prosecution nor  were there any facts appearing from the record which could lead to the conclusion that the  detaining authority  did not  apply  its  mind  to relevant considerations.  The  order  of  detention  is  not infirm in any manner. [60 E-F]      Bhuthnath Mate  v. The  State of  West Bengal, [1974] 3 SCR 315;  Srilal Shaw  v. State  of West  Bengal & Ors., AIR 1975 SC  393; Abdul Gaffer v. State of West Bengal, AIR 1975 SC 1496;  Dulal Roy  v. The  District Magistrate,  Burdwan & Ors., [1975]  3 SCR  186; Salim  v. State  of  West  Bengal; [1975] 3 SCR 394; explained.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 193 of 1979.      From the  Judgment and  Order dated  23-1-1979  of  the Gujarat High Court in Special Criminal Application No. 8/79.      P. H. Parekh and M. Mudgol for the Appellant.      N. M.  Phadke, S.  P. Nayyar  and M.  N. Shroff for the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J.-Kanchanlal Maneklal Chokshi who is

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in  preventive   detention  under   the  provisions  of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974 and  whose petition for the issue of a writ of  Habeas Corpus  was rejected  by the  High Court  of Gujarat is  the appellant  in this  appeal. The  High Court, while rejecting  the petition,  granted a  certificate under Article 133(1)  of the Constitution that the case involved a substantial question  of law  of  general  importance  which needed to  be decided  by the Supreme Court. The substantial question of  law so  certified was  ’whether it is necessary for the  detaining authority  to consider  whether a  person should be  prosecuted before  an order  of detention is made against him’.  The Division  Bench of the Gujarat High Court in rejecting  the particular  contention of the appellant 5- 475 SCI/79 56 purported to  follow an earlier decision of another Division Bench of  the same  Court in  Ashok Murlidhar  v.  State  of Gujarat.(1) In  that case  Divan C.  J., and  Majumdar,  J., though inclined  to the  view  that  the  possibility  of  a criminal prosecution being launched should be present to the mind of  the detaining  authority, felt  constrained to hold otherwise because  of what, they thought had been decided by this Court  in Hardhan Saha & Anr. v. State of West Bengal & Ors.(2). In our view, this Court did not say in Hardhan Saha v.  State   of  West   Bengal  that  the  possibility  of  a prosecution being  launched was  an irrelevant consideration which need  never be  present to  the mind  of the detaining authority. On  the other  hand, we do not also think that it is axiomatic,  as sought  to be  contended  by  the  learned Counsel for the appellant, that the detaining authority must invariably  consider   the  possibility   of   launching   a prosecution before making an order of detention and that, if not, the  order of  detention must necessarily be held to be bad.      In Hardhan  Saha v.  State of West Bengal, the vires of the provisions  of the  Maintenance of Internal Security Act was in  question. One  of the contentions was that Section 3 of the  Act offended  Article 14  of the  Constitution as it permitted ’the  same offence to be a ground for detention in different and  discriminatory ways’.  It was  submitted that while A  might be  prosecuted but not detained preventively, might not be prosecuted but only detained preventively and C might be  both prosecuted and detained preventively. Dealing with the  contention, a  Bench of  five judges of this Court explained the basic distinction between preventive detention and detention following upon conviction and observed:           "The   power    of   preventive    detention    is      qualitatively different  from punitive  detention.  The      power of  preventive detention  is precautionary  power      exercised in reasonable anticipation. It may or may not      relate to  an offence. It is not a parallel proceeding.      It does  not overlap with prosecution even if it relies      on certain  facts for which prosecution may be launched      or may  have been  launched.  An  order  of  preventive      detention may  be made before or during prosecution. An      order of  preventive detention  may  be  made  with  or      without  prosecution   and  in  anticipation  or  after      discharge  or   even   acquittal.   The   pendency   of      prosecution  is  no  bar  to  an  order  of  preventive      detention. An order of preventive detention is also not      a bar to prosecution". 57 The Court  then referred  to various  earlier decisions  and deduced the following principles:

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         "First merely  because a  detenu is  liable to  be      tried in  a criminal  court for  the  commission  of  a      criminal  offence   or  to  be  proceeded  against  for      preventing him  from committing  offences dealt with in      Chapter VIII  of the  Code of  Criminal Procedure would      not by  itself debar  the Government from taking action      for his  detention under the Act. Second, the fact that      the police  arrests a  person and later on enlarges him      on bail  and initiates steps to prosecute him under the      Code of  Criminal Procedure  and even  lodges  a  first      information report  may be  no bar against the District      Magistrate  issuing   an  order  under  the  preventive      detention.  Third,   where  the   concerned  person  is      actually in  jail custody  at the time when an order of      detention is passed against him and is not likely to be      released for  a fair length of time, it may be possible      to contend  that there  could be no satisfaction on the      part of the detaining authority as to the likelihood of      such a  person  indulging  in  activities  which  would      jeopardise the  security of  the State  or  the  public      order. Fourth,  the mere  circumstance that a detention      order is  passed during the pendency of the prosecution      will  not  violate  the  order.  Fifth,  the  order  of      detention is  a precautionary measure. It is based on a      reasonable prognosis  of  the  future  behaviour  of  a      person based  on his  past conduct  in the light of the      surrounding circumstances".      Clearly,  the   Court  did   not  lay   down  that  the possibility  of   a  prosecution   being  launched   was  an irrelevant consideration,  not to  be borne  in mind  by the detaining authority.  All that  was laid  down was  that the mere circumstance  that a detenu was liable to be prosecuted was not  by itself  a bar  to the  making  of  an  order  of preventive detention.  It does  not  follow  therefrom  that failure to  consider the  possibility of a prosecution being launched  cannot  ever  lead  to  the  conclusion  that  the detaining authority  never applied its mind and the order of detention was, therefore, bad.      In Bhutnath  Mate v.  State of  West Bengal(1)  Krishna Iyer and  Sarkaria JJ.,  declared the  detention illegal for denial of  opportunity to  make effective representation. On the question whether the failure of criminal prosecution was a bar  to preventive  detention the  answer was  a  definite ’no’. The learned judges however expressed 58 apprehension against  the danger  to the  democratic way  of life inherent in ’the potential executive tendency to shy at Courts for  prosecution of  ordinary offences  and  to  rely generously   on    the   easier   strategy   of   subjective satisfaction’. The  question presently  under consideration, namely, whether  the failure  of the  detaining authority to keep  in   mind  the  possibility  of  a  prosecution  would necessarily  vitiate   the  order   of  detention   was  not considered by the learned judges.      In Srilal  Shaw v.  State of West Bengal & Ors.(1), the prosecution  was   dropped  and   thereafter  an   order  of preventive  detention  was  passed.  The  substance  of  the allegation against  the detenu  was that  he was in unlawful possession of  scrap metal  belonging to  the  Railway.  The Court came  to the conclusion that on the material which was available to  the detaining  authority, it was impossible to arrive  at   the  conclusion  that  the  possession  of  the petitioner was  unlawful. The  Court found  that the  reason given  by   the  District   Magistrate  for   dropping   the prosecution was  unacceptable.  It  was  observed  that  the

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prosecution was in all probability dropped as the petitioner might have been able to establish that his possession of the goods was  not unlawful.  The case  struck the  Court  as  a typical case  in which  for no  apparent reason a person who could easily  be prosecuted under the punitive law was being preventively detained.  It is  seen that the decision turned on the peculiar facts of the case and throws no light on the question presently raised before us.      In Abdul Gaffer v. State of West Bengal(2) the order of detention was  passed on  the basis  of a  few instances  of theft of  Railway property  for which  the detenu could well and easily  have been  prosecuted. The contention before the Court was  that the  order of  detention was  passed by  the detaining authority  mechanically without  applying its mind to the  question whether the facts disclosed the tendency of the petitioner  to act prejudicially in the manner mentioned in the detention order. The bald and sweeping allegation was made in  the counter  filed on  behalf  of  the  State  that material witnesses  were afraid  of giving  evidence in  the Court  against  the  detenu.  The  material  witnesses  were members of  the Railway  Protection Force. In that situation Sarkaria J.,  observed that the version given in the counter was incredible and could not be swallowed. The learned Judge then observed  "the conclusion therefore is inescapable that the  petitioner   has  been  proventively  detained  without application of  mind as  to whether  the prosecution against him was  foredoomed to  failure on  the ground  of witnesses being afraid to depose against the detenu 59 in Court.  The impugned  order has been made in a casual and cavalier manner".  It is  seen that  there  was  an  express allegation that  recourse was  had to  preventive  detention despite the  fact that criminal prosecutions could well have been successfully  launched, based  as the  case was  on the evidence of  members of  the Railway  Protection Force.  The reason given  by the State for taking recourse to preventive detention was  found to  be  fantastic.  The  decision  thus stands on the special facts of the case.      In Dulal  Roy v.  The District  Magistrate,  Burdwan  & Ors.,(1) the Court had to consider a situation where a month after a  person was  arrested in  connection with a criminal case he  was discharged  but was  taken into  custody on the same day pursuant to an order of detention. Krishna Iyer and Sarkaria, JJ.,  while observing  that as  an abstract  legal proposition  an  order  of  preventive  detention  could  be validly passed against a  person in jail custody on the same facts on  which he  was being  prosecuted for  a substantive offence in  a Court,  pointed out  that  such  an  order  of detention was  readily vulnerable  to the  charge  that  the detaining  authority   was  taking  recourse  to  preventive detention in  order to  circumvent the  penal  law  and  the process of the Court. The learned Judges were satisfied that the discharge  of the  detenu in a criminal case was not due to any  shortcoming in  the evidence  or difficulty  in  its production in  Court. The order of detention was, therefore, quashed on  the ground  of non  application of  mind by  the detaining authority.      In Salim  v. State  of West  Bengal,(2) Chandrachud J., speaking for  the Court  observed that  the  fact  that  the detenu could have been prosecuted for the acts attributed to him did  not affect  the validity of the order of preventive detention. The  further question whether it was incumbent on the  detaining   authority  to   consider  the  question  of possibility of prosecution was not considered by the Court.      In Ashok  Murlidhar v.  State of Gujarat, (supra) Divan

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C.J., and  Majumdar, J., appeared to think that the Bench of five Judges  of this Court which decided Hardhan Saha & Anr. v. State  of West  Bengal &  Ors., (supra)  had taken a view different from  that expressed in Bhuthnath Mate v. State of West Bengal,  Abdul Gaffer  v. State  of West Bengal, Srilal Shaw v.  State of  West Bengal  & Ors.,  Dulal  Roy  v.  The District Magistrate, Burdwan & Ors., (supra) We do not think that there  is any  such conflict as thought by the Division Bench of  the Gujarat  High Court.  The principles  emerging from a review of the 60 above cases may be summarised in the following way:      The ordinary criminal process is not to be circumvented or short-circuited  by ready resort to preventive detention. But, the  possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to  the  mind  of  the  detaining  authority  the  order  of detention is  necessarily bad.  However, the  failure of the detaining authority to consider the possibility of launching a criminal  prosecution may, in the circumstances of a case, lead to  the conclusion that the detaining authority had not applied its  mind to  the  vital  question  whether  it  was necessary to make an order of preventive detention. Where an express allegation  is made  that the order of detention was issued in  a mechanical  fashion without  keeping present to its mind  the question whether it was necessary to make such an order  when an  ordinary criminal  prosecution could well serve the  purpose, the detaining authority must satisfy the Court that  that question  too was  borne in mind before the order of  detention was  made. If  the  detaining  authority fails to  satisfy the  Court that the detaining authority so bore the  question in  mind the  Court would be justified in drawing the  inference that  there was no application of the mind by  the  detaining  authority  to  the  vital  question whether it was necessary to preventively detain the detenu.      The facts  of the  present case are that the grounds of detention served  on the  appellant contain a very elaborate statement of  facts quite clearly pointing to an application of the  mind by  the detaining  authority. The appellant did not  complain  in  the  Writ  Petition  that  the  detaining authority had not applied its mind and in particular had not considered the question of the possibility of a prosecution. Nor are  there any facts appearing from the record which can lead us  to infer that the detaining authority did not apply its mind  to relevant  considerations. We do not, therefore, think that  the order  of detention is in any manner infirm. The appeal is accordingly dismissed. P.B.R.                                     Appeal dismissed. 61