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CASE NO.: Appeal (crl.)  1302 of 2005

PETITIONER: Naresh Kumar Goyal                                           

RESPONDENT: Union of India and others                                           

DATE OF JUDGMENT: 05/10/2005

BENCH: B.P. Singh,Tarun Chatterjee & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.4928 Of 2003)

B.P. SINGH, J.

       Special leave granted.

       In this appeal the appellant impugns the order of detention  passed against him by the State of Bihar on September 4, 2002 in  exercise of powers conferred by Section 3(i), (ii) and (iii) of the  Conservation of Foreign Exchange and Prevention of Smuggling  Activities Act, 1974 (hereinafter referred to as ’the Act’).  The High  Court by its impugned judgment and order dated September 17, 2003  dismissed the writ petition and held that this was not an appropriate  case in which the High Court could exercise its jurisdiction under  Article 226 of the Constitution of India to quash an order of detention  even before its execution.  The correctness of the aforesaid view of  the High Court is challenged before us.   

The facts of the case are few and not disputed.

The appellant claims to be one of the partners of M/s. Prakash  Transport, a partnership firm having its principal place of business at  Kolkatta with branch offices all over India including one at Raxaul in  the State of Bihar.  The firm is engaged in the business of  transportation of goods by road by hiring public carrier trucks.   According to the appellant, on August 28, 2001 a Nepalese firm M/s.   Prakash International Carriers Pvt. Ltd., Kathmandu, Nepal, hired a  vehicle owned by one Shri Vishwanath Prasad Kanu, a Nepalese  citizen, for transportation of goods from the godown of the appellant’s  firm at Raxaul to Nepal.   The appellant has no concern with the  Nepalese firm M/s. Prakash International Carriers Pvt. Ltd.  The truck  hired by the aforesaid Nepalese firm was detained at the Indian Land  Custom Station at Raxaul and an idol kept in a wooden box was  recovered.  This led to the search of the premises of the appellant’s  firm at Raxaul and the search resulted in the recovery of another idol  kept in a wooden box.  The statement of the driver of the truck was  recorded on August 29, 2001 and on the basis of his statement the  complicity of the appellant was discovered.  Accordingly his house at  Kolkatta was searched on September 11, 2001 and his statement  recorded.  On February 22, 2002 a notice was issued to the appellant  to show cause as to why penalty be not imposed, and a criminal case  was also registered against him on April 16, 2002.  Subsequently the  appellant was released on bail in the criminal case on August 16,  2002.  The impugned order of detention was passed on September 4,

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2001, but till the appellant filed the writ petition on June 25, 2003, the  order of detention had not been executed by serving it upon the  appellant.  

The case of the appellant is that in the criminal case, he  appeared in person uptil December 20, 2002, even after the order of  detention had been passed, and yet no effort was made to arrest him.   No process under Section 7 of the Act was issued against him even  though it is the case of the respondents that the appellant had been  absconding.  It is the case of the appellant that the detaining authority,  the State of Bihar, took no effective steps whatsoever to arrest the  appellant which showed that the order of detention had been passed  for a purpose other than for which his detention under the Act could  be justified.  The fact that the State Government did not exercise its  power under Section 7 of the Act is not disputed before us.  All that  has been shown to us by the learned counsel appearing on behalf of  the State is that some correspondence was exchanged between the  Criminal Investigation Department of the Government of Bihar with  the Commissioner of Police, Kolkatta, West Bengal.  It was stated in  the counter-affidavit filed on behalf of respondent No.5 before the  High Court that though a request had been made for immediate  compliance of the preventive detention order under the Act to the  Commissioner of Police, Kolkatta, no action was taken.  Several such  letters addressed to the police authorities of the State of West Bengal,  however, yielded no result.   

Having regard to the facts and circumstances of the case it  appears to us prima facie, that there has been delay in the execution of  the detention order and the State of Bihar has not taken effective steps  to arrest the appellant and serve the order of detention upon him.   This, however, should not be considered to be our concluded opinion  in the matter, since it is always open to the detenue to challenge the  order of detention after arrest, and the question of delay in issuance or  implementation of the order can be raised in such proceeding.   

The real issue which arises in the instant appeal is whether the  High Court was justified in law in not exercising its discretion under  Article 226 of the Constitution of India to quash the order of detention  at the pre-arrest stage.

Learned counsel for the appellant submitted that once it is  shown that the State has taken no steps to execute an order of  detention and the explanation furnished by the State is unsatisfactory,  it must be held that the order of detention was not issued for the  purpose for which it could be issued under the Act, and necessarily  implied that the real purpose was something else, not authorized by  law.  In such a case it made no difference whether the appellant  moved the High Court at the pre-arrest stage or after his arrest  pursuant to the order of detention.  He emphasized that expeditious  steps must be taken by the State both in the matter of passing the order  of detention and in executing the same.   Both are lacking in the  instant case.  The order of detention was passed on September 4, 2002  while the complicity of the appellant is alleged to have been  discovered on August 29, 2001 on the basis of the statement of the  driver of the vehicle.  In the matter of implementation of the order as  well, there was considerable apathy and lethargy, since the order was  not even executed till the date the writ petition was filed on June 25,  2003.   

It is trite law that an order of detention is not a curative or  reformative or punitive action, but a preventive action, avowed object  of which being to prevent the anti-social and subversive elements  from imperiling the welfare of the country or the security of the nation  or from disturbing the public tranquility or from indulging in  smuggling activities or from engaging in illicit traffic in narcotic

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drugs and psychotropic substances etc.   Preventive detention is  devised to afford protection to society.  The authorities on the subject  have consistently taken the view that 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 doing so.  It, therefore, becomes imperative on the  part of the detaining authority as well as the executing authority to be  very vigilant and keep their eyes skinned but not to turn a blind eye in  securing the detenue and executing the detention order because any  indifferent attitude on the part of the detaining authority or executing  authority will defeat the very purpose of preventive action and turn  the detention order as a dead letter and frustrate the entire  proceedings.  Inordinate delay, for which no adequate explanation is  furnished, led to the assumption that the live and proximate link  between the grounds of detention and the purpose of detention is  snapped.  (See : P.U. Iqbal vs.  Union of India and others : (1992) 1  SCC 434 ;  Ashok Kumar  vs.  Delhi Administration  : (1982) 2 SCC  403 and Bhawarlal Ganeshmalji vs.  State of  Tamilnadu : (1979) 1  SCC 465.

It is not necessary for us to multiply authorities because no  exception can be taken to the above proposition enunciated by this  Court in a series of decisions.

Mr. B.B. Singh, learned counsel appearing on behalf of the  State of Bihar, submitted before us that the question involved in the  instant appeal is not whether the order of detention should be struck  down on the ground that the State of Bihar has not taken necessary  steps to implement the order of detention, but whether at the pre-arrest  stage the High Court should have exercised its jurisdiction under  Article 226 of the Constitution of India to quash the order of detention  on such grounds.  He submitted that the decisions of this Court have  taken the view that exercise of discretion under Article 226 of the  Constitution of India can be justified only in appropriate cases and the  scope for interference is very limited.  Normally the Court would not  interfere with the order of detention at a pre-arrest stage under Article  226 of the Constitution of India.  He submitted that there are only 5  exceptions to this rule which would justify interference by the Court  at the pre-execution stage with the order of detention.  Those five  situations have been enumerated in the case of Additional Secretary to  the Government of India and others Vs. Smt. Alka Subhash Gadia and  another : 1992 Supp (1) SCC 496;  

"As regards his last contention, viz., that to deny a  right to the proposed detenue 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

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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 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 detenue 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 detenue, but prevents their abuse and  the perversion of the law in question".

       In Union of India and others  vs. Parasmal Rampuria : (1998) 8  SCC 402,  when the order of detention passed under the Act was  sought to be challenged at the pre-arrest stage, this Court called upon  the respondent first to surrender pursuant to the detention order and  then to have all his grounds examined on merit.   

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In Sayed Taher Bawamiya Vs.  Joint Secretary to the  Government of India and Others  : (2000) 8 SCC 630, an argument  was advanced before this Court that the exceptions enumerated in  Alka Subhash Gadia (supra) were not exhaustive.  The submission  was repelled and this Court observed :-  

"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 shows  that it is only in these five types of instances that  the court may exercise its discretionary jurisdiction  under Article 226 or Article 32 at the pre- execution stage".       

In Union of India and others Vs. Muneesh Suneja : (2001) 3  SCC 92, the challenge was to the order of the High Court quashing the  order of detention at the pre-arrest stage on two grounds, first that  there had been delay in making the order of detention and second that  after making the order of detention no effective steps had been taken  to execute the same except to make a vague allegation that the  respondent was absconding.  This Court noticed the exceptional  circumstances justifying interference by the High Court at pre-arrest  stage enumerated in Alka Subhash Gadia (supra).  This Court,  thereafter, set aside the order made by the High Court observing :-

"This Court has been categorical that in matters of  pre-detention cases interference of court is not  called for except in the circumstances set forth by  us earlier.  If this aspect is borne in mind, the High  Court of Punjab and Haryana could not have  quashed the order of detention either on the ground  of delay in passing the impugned order or delay in  executing the said order, for mere delay either in  passing the order or execution thereof is not fatal  except where the same stands unexplained.  In the  given circumstances of the case and if there are  good reasons for delay in passing the order or in  not giving effect to it, the same could be explained  and those are not such grounds which could be  made the basis for quashing the order of detention  at a pre-detention stage.  Therefore, following the  decisions of this Court in Addl. Secy. to the Govt.  of India Vs. Alka Subhash Gadia and Sayed Taher  Bawamiya Vs. Jt. Secy. to the Govt. of India, we  hold that the order made by the High Court is bad  in law and deserves to be set aside".   

Coming to the facts of this case, at the highest the case of the  appellant is that the order of detention was belatedly passed and the  State of Bihar thereafter took no steps whatsoever to implement the  order of detention.  Counsel for the appellant sought to bring this case  under the third exception enumerated in Alka Subhash Gadia (supra),  namely, that the order was passed for a wrong purpose.  In the facts  and circumstances of this case, it is not possible to accept the  submission that the order was passed for a wrong purpose.   Apparently the order has been passed with a view to prevent the  appellant from smuggling goods or abetting the smuggling thereof etc.   The facts of the present case are no different from the facts in  Muneesh Suneja (supra).  We do not find that the case falls within any  of the exceptions enumerated in Alka Subhash Gadia (supra).  The

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High Court was, therefore, justified in refusing to exercise jurisdiction  under Article 226 of the Constitution of India to quash the order of  detention at the pre-arrest stage.  This appeal is, therefore, devoid of  merit and is dismissed.