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CASE NO.: Appeal (crl.)  417 of 2008

PETITIONER: STATE OF MAHARASHTRA & ORS

RESPONDENT: BHAURAO PUNJABRAO GAWANDE

DATE OF JUDGMENT: 03/03/2008

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO 417 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 583 OF 2007

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal is filed by the  State of Maharashtra and others against the  sole respondent (original petitioner) against  the judgment and order passed by the High Court  of Judicature at Bombay (Nagpur Bench) on  October 17, 2006 in Writ Petition No. 372 of  2006. By the impugned order, the High Court  (partly) allowed the petition filed by the  detenu-writ petitioner and set aside the order  of detention dated July 27, 2006 passed by the  Commissioner of Police (Nagpur City) under the  Prevention of Black Marketing and Maintenance  of Supplies of Essential Commodities Act, 1980.

FACTUAL MATRIX 3.              The case of the appellants is that one  Bhaurao Punjabrao Gawande (detenu) was running  a business of transportation of petroleum  products and had fleet of tankers for carrying  on the said occupation. He was indulging in  illegal purchase and sale of blue kerosene oil  in black market since last five to six years.  Certain cases were also registered against the  said Bhaurao under the Essential Commodities  Act, 1955 (hereinafter referred to as ’1955  Act’). In view of continuous activities of  Bhaurao in black-marketing of essential  commodity (Kerosene), the Commissioner of  Police (appellant No.2 herein), in exercise of  power conferred on him by sub-section (1) read  with Clause (b) of sub-section (2) of the  Prevention of Black Marketing and Maintenance  of Supplies of Essential Commodities Act, 1980  (hereinafter referred to as ’the Act’) directed  that the said Bhaurao be detained. Grounds of  detention were sought to be served to the  detenu on the same day. 4.              According to the appellants, in  accordance with sub-section (3) of Section 3 of

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the Act, the order of detention passed by the  Commissioner of Police was approved by the  State Government. The detenu somehow came to  know about the order of detention being passed  again him and absconded himself. He, therefore,  could not be detained, nor served with the  order or grounds of detention in support of the  order. WRIT PETITION 5.              The detenu, without submitting to the  order of detention and surrendering, filed Writ  Petition No. 372 of 2006 in the High Court of  Bombay (Nagpur Bench) for an appropriate writ,  direction or order quashing and setting aside  the order of detention dated July 27, 2006  being illegal, unwarranted and vitiated by mala  fide. Other reliefs were also sought.

COUNTER AFFIDAVIT 6.              An affidavit in reply was filed by the   Detaining Authority, inter alia, contending  that the petition filed by the detenu was not  maintainable at law. The detenu got the  information about the order of detention,  absconded himself and the order of detention  could not be served upon him. The order was,  therefore, affixed at a conspicuous place at  the residence of the detenu on July 30, 2006  and a panchanama was drawn by the Police  Inspector of Sakkardara Police Station, Nagpur.  Since the detenu was not available, grounds of  detention along with relevant documents also  could not be served upon him. It was stated  that the order of detention was approved by the  State Government. Moreover, the entire  proceedings of detention were submitted to the  Advisory Board constituted under Section 10 of  the Act as required by law. The Government  decided the period of detention only after the  opinion of the Advisory Board under Section 12  of the Act. 7.              On merits, it was contended on behalf  of the Detaining Authority that the detenu was  indulging in black marketing of kerosene oil  which was an ’essential commodity’ and several  cases had been registered against him. It was  also stated that the detenu had executed a bond  under the Code of Criminal Procedure, 1973 for  good behaviour. In spite of all these steps,  the detenu continued to indulge in black  marketing activities of essential commodity and  the Detaining Authority was satisfied that  "with a view to preventing him from acting in  any manner prejudicial to the maintenance of  supplies of essential commodities to the  community", it was necessary to detain him and  accordingly the order was passed. It was,  therefore, submitted that the petition was  liable to be dismissed, particularly when the  detenu absconded and the order of detention  along with grounds of detention and other  documents could not be personally served and  could not be executed.

HIGH COURT JUDGMENT

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8.              The High Court, by the impugned order,  held that the detenu was not entitled to know  the grounds on which the order of detention had  been passed, unless he surrendered. The Court,  however, proceeded to state that it perused the  grounds of detention with a view to satisfy  itself about the legality of the order of  detention. The Court noted that the authorities  made the record available to the Court and the  Court had ’carefully’ examined it. The Court  then concluded;  "We find that the present petition  can be entertained at pre- execution stage".

9.              The High Court considered the relevant  provisions of the Act as also the Maharashtra  Kerosene Dealers’ Licensing Order, 1966 and the  Kerosene (Restriction on Use and Fixation of  Ceiling Price) Order, 1993. It observed that if  the cases instituted against the detenu were  taken into consideration by the Detaining  Authority, it could not be said that the  Detaining Authority could not have reached  ’subjective satisfaction’ on that basis and as  such the order could not be challenged. The  High Court also conceded that normally, a Court  would not interfere with the order of detention  at pre-execution stage. It, however, held that  the present case was covered by one of the  exceptions laid down in Addl. Secretary to the  Government of India & Ors. v. Smt. Alka Subhash  Gadia & Anr., 1992 Supp (1) SCC 496 and hence  the petition was maintainable and the detenu  was entitled to relief. The High Court  accordingly set aside the order of detention.  The legality of said order is questioned by the  Authorities in the present appeal.

PREVIOUS ORDERS 10.             On February 12, 2007, when the matter  was placed for admission hearing, notice was  issued and was made returnable within three  weeks. On August 13, 2007, four weeks time was  sought by the detenu for filing counter  affidavit. The Court, however, passed the  following order;         "The matter relates to grant of  relief by the High Court under Article  226 of the Constitution at pre-arrest  stage. This Court had issued notice on  February 12, 2007.

       On the facts and in the  circumstances of the case, in our  opinion, we should not grant four  weeks’ time as prayed for. Two weeks’  time is granted, as a last chance, for  filing counter affidavit.

       List thereafter".

11.             Affidavit-in-reply was thereafter  filed. On December 13, 2007, the Registry was  directed to list the matter for final hearing

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in the first week of February, 2008 on a non- miscellaneous day and that is how the matter is  before us. 12.             We have heard learned counsel for the  parties. APPELLANTS’ SUBMISSIONS

13.             The learned counsel for the appellants  strenuously contended that the High Court was  wholly in error in exercising jurisdiction  under Article 226 of the Constitution against  an order of detention at a pre-execution stage.  It was submitted that the preliminary objection  raised by the Detaining Authority was well  founded that the High Court should not have  entertained the writ petition and set aside the  order of detention before the order could be  executed against the detenu. It was also  submitted that an important factor which ought  to have been taken into consideration by the  High Court that the order could not be served  upon the detenu, was a material factor. The  detenu absconded himself and successfully  avoided service of order of detention, grounds  of detention and relevant documents in support  of the order. The authorities were, therefore,  constrained to affix the order at a conspicuous  place of residence of the detenu. The said  factor was crucial and the High Court should  have refused to exercise jurisdiction in favour  of the detenu. 14.             On merits, it was contended that  several cases had been instituted against the  detenu under the 1955 Act and consistent  conduct of the detenu revealed that he  continued to indulge in black marketing  activities. If it is so, a preventive action  under the Act was called for and such action  could not have been interfered with by the High  Court. It was also submitted that the High  Court was not right in observing that the  detenu was ill-treated when he was arrested in  connection with Crime No. 3022 of 2006 at  Police Station, Wadi (Nagpur) and there was  ’custodial violence’ by police authorities.  But, even if it is assumed to be true, the  detenu could have taken appropriate action in  accordance with law. That, however, does not  make order of detention vulnerable. The counsel  also contended that the High Court was not  right that no other steps had been considered  by the authorities. In fact, the detenu was  directed to execute a bond of good behaviour  and such bond was also executed by him. It was,  therefore, submitted that the order passed by  the High Court deserves to be set aside by  allowing the Detaining Authority to execute the  order of detention against the detenu and by  granting liberty to the detenu to challenge the  order by taking appropriate action in  accordance with law against such detention.

RESPONDENT’S SUBMISSION

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15.             Learned counsel for the respondent- detenu, on the other hand, supported the order  of the High Court. He submitted that normally a  High Court or this Court, in exercise of  extraordinary powers under Article 226 or 32 of  the Constitution does not interfere with an  order of detention at pre-execution stage. But,  there is no restriction, limitation or  prohibition on the power of the Court in  exercising constitutional powers. It is a self- imposed limitation by Courts themselves. In an  appropriate case, however, if the Court is  satisfied that the order is ex-facie illegal,  void, without jurisdiction or actuated by mala  fides, the Court has jurisdiction to grant  relief to the detenu even if the order is not  executed and the person is not served with such  order. In the case on hand, the learned counsel  submitted, the High Court was satisfied that  one of the exceptions carved out by this Court  in Alka Subhash Gadia had been made out and the  Court exercised the power which cannot be said  to be illegal or contrary to law. It was also  submitted that when it was alleged by the  detenu that there was ’custodial violence’ by  police authorities, such complaint and the  requisite materials should have been placed  before the Detaining Authority and the  Detaining Authority was bound to consider them.  If no such material was placed before the  authority or was placed but not considered by  the Detaining Authority, there was non-  application of mind on the part of the  authority and it can be concluded that the  order was passed for a ’wrong purpose’ and was  liable to be set aside. Finally, it was  submitted that the order of detention was set  aside by the High Court on October 17, 2006 and  no allegation had been made by the appellants  that subsequent to the said order, the detenu  has indulged in black-marketing activities.  Hence, even if this Court is convinced that the  High Court was not right in exercising  jurisdiction at pre-execution stage, this Court  may not interfere with the decision of the High  Court. WHETHER HIGH COURT WAS RIGHT IN QUASHING ORDER  OF DETENTION?

16.             Having heard learned counsel for the  parties and having given anxious consideration  to the facts and circumstances of the case, we  are clearly of the view that the High Court  exceeded its jurisdiction in entertaining the  writ-petition and in quashing and setting aside  the order of detention at pre-execution stage.  It cannot be gainsaid that the order of  detention has been made against the detenu in  exercise of power under the Act since the  Detaining Authority was satisfied that  detention of the writ-petitioner was necessary  "with a view to preventing him from acting in  any manner prejudicial to the maintenance of  supplies of commodities to the community" i.e.

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selling of kerosene in black market. True it is  that such order must be ’preventive’ and not  ’punitive’ in nature. But the Court must be  conscious and mindful that the satisfaction of  the Detaining Authority is ’subjective’ in  nature and the Court cannot substitute its  ’objective’ opinion for the subjective  satisfaction of Detaining Authority for coming  to the conclusion whether the activities of the  detenu were or were not prejudicial to the  maintenance of supplies of essential  commodities to the society.  It would,  therefore, be appropriate if we consider the  concept of and relevant principles governing  ’preventive detention’.

PERSONAL LIBERTY : PRECIOUS RIGHT 17.             There can be no doubt that personal  liberty is a precious right. So did the  Founding Fathers believe because, while their  first object was to give unto the people a  Constitution whereby a Government was  established, their second object, equally  important, was to protect the people against  the Government. That is why, while conferring  extensive powers on the Government like the  power to declare an emergency, the power to  suspend the enforcement of Fundamental Rights  or the power to issue Ordinances, they assured  to the people a Bill of Rights by Part III of  the Constitution, protecting against executive  and legislative despotism those human rights  which they regarded as ’fundamental’. The  imperative necessity to protect those rights is  a lesson taught by all history and all human  experience. Our Constitution makers had lived  through bitter years and seen an alien  government trample upon human rights which the  country had fought hard to preserve. They  believed like Jefferson that "an elective  despotism was not the government we fought  for." And therefore, while arming the  Government with large powers to prevent anarchy  from within and conquest from without, they  took care to ensure that those powers were not  abused to mutilate the liberties of the people  [vide A.K. Roy v. Union of India, (1982) 1 SCC  271; Attorney General for India v. Amritlal  Pranjivandas, (1994) 5 SCC 54]. 18.             It has been observed in R. v. Home  Secretary, (1999) 2 AC 38 : (1997) 1 WLR 503, "The imposition of what is in  effect a substantial term of  imprisonment by the exercise of  executive discretion, without  trial, lies uneasily with ordinary  concepts of the rule of law".

HABEAS CORPUS : FIRST SECURITY OF CIVIL LIBERTY 19.             The celebrated writ of habeas corpus  has been described as "a great constitutional  privilege" or "the first security of civil  liberty". The writ provides a prompt and  effective remedy against illegal detention. By

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this writ, the Court directs the person or  authority who has detained another person to  bring the body of the prisoner before the Court  so as to enable the Court to decide the  validity, jurisdiction or justification for  such detention. The principal aim of the writ  is to ensure swift judicial review of alleged  unlawful detention on liberty or freedom of the  prisoner or detenu. 20.             In Cox v. Hakes, (1890) 15 AC 506 : 60  LJQB 89, Lord Halsbury propounded: "For a period extending as far back as  our legal history, the writ of habeas  corpus has been regarded as one of the  most important safeguards of the  liberty of the subject. If upon the  return to that writ it was adjudged  that no legal ground was made to  appear justifying detention, the  consequence was immediate release from  custody. If release was refused, a  person detained might make a fresh  application to every judge or every  Court in turn, and each Court or Judge  was bound to consider the question  independently and not to be influenced  by the previous decisions refusing  discharge. If discharge followed, the  legality of that discharge could never  be brought in question. No writ of  error or demurrer was allowed."

21.             In R v. 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 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) 22.             As early as in 1627, the following  memorable observations were made by Hyde, C.J.  in Darnel, Re, (1927) 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

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wrong by his imprisonment, we have  power to deliver and discharge him, if  otherwise, he is to be remanded by us  to prison".

23.             In Halsbury’s Laws of England, (4th  Edn., Vol.11, para 1454, p.769), it is stated: "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 means 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".

24.             In Greene v. Secretary of State for  Home Affairs, (1941) 3 All ER 388 : 1942 AC  284, Lord Wright observed: "The inestimable value of the  proceedings is that it is the most  efficient mode ever devised by any  system of law to end unlawful  detainments and to secure a speedy  release where the circumstances and  the law so required".

25.             The underlying object of the writ of  habeas corpus has been succinctly explained by  Dua, J. in Sapmawia v. Deputy Commissioner,  Aijal, (1971) 1 SCR 690, in the following  words: "The writ of habeas corpus is a  prerogative writ by which, the causes  and validity of detention of a person  are investigated by summary procedure  and if the authority having his  custody does not satisfy the court  that the deprivation of his personal  liberty is according to the procedure  established by law, the person is  entitled to his liberty. The order of  release in the case of a person  suspected of or charged with the  commission of an offence does not per

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se amount to his acquittal or  discharge and the authorities are not,  by virtue of the release only on  habeas corpus, deprived of the power  to arrest and keep him in custody in  accordance with law for this writ is  not designed to interrupt the ordinary  administration of criminal law".

PREVENTIVE DETENTION : MEANING AND CONCEPT 26.             There is no authoritative definition  of ’preventive detention’ either in the  Constitution or in any other statute. The  expression, however, is used in  contradistinction to the word ’punitive’. It is  not a punitive or penal provision but is in the  nature of preventive action or precautionary  measure. The primary object of preventive  detention is not to punish a person for having  done something but to intercept him before he  does it. To put it differently, it is not a  penalty for past activities of an individual  but is intended to pre-empt the person from  indulging in future activities sought to be  prohibited by a relevant law and with a view to  preventing him from doing harm in future. 27.             In Hardhan Saha v. State of W.B.,  (1975) 3 SCC 198, explaining the concept of  preventive detention, the Constitution Bench of  this Court, speaking through Ray, C.J. stated; "The essential concept of preventive  detention is that the detention of a  person is not to punish him for  something he has done but to prevent  him from doing it. The basis of  detention is the satisfaction of the  executive of a reasonable probability  of the likelihood of the detenu acting  in a manner similar to his past acts  and preventing him by detention from  doing the same. A criminal conviction  on the other hand is for an act  already done which can only be  possible by a trial and legal  evidence. There is no parallel between  prosecution in a Court of law and a  detention order under the Act. One is  a punitive action and the other is a  preventive act. In one case a person  is punished to prove his guilt and the  standard is proof beyond reasonable  doubt whereas in preventive detention  a man is prevented from doing  something which it is necessary for  reasons mentioned in Section 3 of the  Act to prevent".

28.            In another leading decision in  Khudiram Das v. State of W.B., (1975) 2 SCR  832, this Court stated; "The power of detention is clearly a  preventive measure. It does not  partake in any manner of the nature of  punishment. It is taken by way of

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precaution to prevent mischief to the  community. Since every preventive  measure is based on the principle that  a person should be prevented from  doing something which, if left free  and unfettered, it is reasonably  probable he would do, it must  necessarily proceed in all cases, to  some extent, on suspicion or  anticipation as distinct from proof.  Hatanjali Sastri, C.J., pointed out in  State of Madras v. V.G. Row A.I.R.  1952 SC 196 : 1952 SCR 597 that  preventive detention is "largely  precautionary and based on suspicion"  and to these observations may be added  the following words uttered by the  learned Chief Justice in that case  with reference to the observations of  Lord Finlay in Rex v. Halliday, 1917  AC 260 namely, that "the court was the  least appropriate tribunal to  investigate into circumstances of  suspicion on which such anticipatory  action must be largely based". This  being the nature of the proceeding, it  is impossible to conceive how it can  possibly be regarded as capable of  objective assessment. The matters  which have to be considered by the  detaining authority are whether the  person concerned, haying regard to his  past conduct judged in the light of  the surrounding circumstances and  other relevant material, would be  likely to act in a prejudicial manner  as contemplated in any of sub-clauses  (i), (ii) and (iii) of Clause (1) of  Sub-section (1) of Section 3, and if  so, whether it is necessary to detain  him with a view to preventing him from  so acting. These are not matters  susceptible of objective determination  and they could not be intended to be  judged by objective standards. They  are essentially matters which have to  be administratively determined for the  purpose of taking administrative  action. Their determination is,  therefore, deliberately and advisedly  left by the legislature to the  subjective satisfaction of the  detaining authority which by reason of  its special position, experience and  expertise would be best fitted to  decide them. It must in the  circumstances be held that the  subjective satisfaction of the  detaining authority as regards these  matters constitutes the foundation for  the exercise of the power of detention  and the Court cannot be invited to  consider the propriety or sufficiency  of the grounds on which the  satisfaction of the detaining

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authority is based. The Court cannot,  on a review of the grounds, substitute  its own opinion for that of          the authority, for what is made  condition precedent to the exercise of  the power of detention is not an  objective determination of the  necessity of detention for a specified  purpose but the subjective opinion of  the detaining authority, and if a  subjective opinion is formed by the  detaining authority as regards the  necessity of detention for a    specified purpose, the condition of  exercise of the power of       detention would be fulfilled. This  would clearly show that the power of  detention is not a quasi-judicial  power".                                    (emphasis supplied)

29.             Recently, in Naresh Kumar Goyal v.  Union of India, (2005) 8 SCC 276, the Court  said; "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 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

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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 v. Union of  India and Ors., (1992) 1 SCC 434;  Ashok Kumar v. Delhi  Administration, (1982) 2 SCC 403  and Bhawarlal Ganeshmalji v. State  of Tamilnadu, (1979) 1 SCC 465].

PREVENTIVE DETENTION : NECESSARY EVIL 30.             Liberty of an individual has to be  subordinated, within reasonable bounds, to the  good of the people. The framers of the  Constitution were conscious of the practical  need of preventive detention with a view to  striking a just and delicate balance between  need and necessity to preserve individual  liberty and personal freedom on the one hand  and security and safety of the country and  interest of the society on the other hand.  Security of State, maintenance of public order  and services essential to the community,  prevention of smuggling and black marketing  activities, etc. demand effective safeguards in  the larger interests of sustenance of a  peaceful democratic way of life. In considering  and interpreting preventive detention laws,  courts ought to show greatest concern and  solitude in upholding and safeguarding the  Fundamental Right of liberty of the citizen,  however, without forgetting the historical  background in which the necessity\027an unhappy  necessity\027was felt by the makers of the  Constitution in incorporating provisions of  preventive detention in the Constitution  itself. While no doubt it is the duty of the  court to safeguard against any encroachment on  the life and liberty of individuals, at the  same time the authorities who have the  responsibility to discharge the functions  vested in them under the law of the country  should not be impeded or interfered with  without justification [vide A.K. Roy v. Union  of India; Bhut Nath v. State of West Bengal,  (1974) 3 SCR 315; State of W.B. v. Ashok Dey,  (1972) 2 SCR 434; ADM Jabalpur v. Shirakant  Shukla, 1976 Supp SCR 132].

SUBJECTIVE SATISFACTION : SCOPE OF JUDICIAL  REVIEW

31.             Subjective satisfaction being a  condition precedent for the exercise of the  power of preventive detention conferred on the  executive, the Court can always examine whether  the requisite satisfaction is arrived at by the  authority; if it is not, the condition  precedent to the exercise of the power would  not be fulfilled and the exercise of the power  would be bad. 32.             A Court cannot go into correctness or

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otherwise of the facts stated or allegations  levelled in the grounds in support of  detention.  A Court of Law is ’the last  appropriate tribunal to investigate into  circumstances of suspicion on which such  anticipatory action must be largely based.’ 33.             That, however, does not mean that the  subjective satisfaction of Detaining Authority  is wholly immune from judicial reviewability.   By judicial decisions, courts have carved out  areas, though limited, within which the  validity of subjective satisfaction can be  tested judicially. GROUNDS OF CHALLENGE 34.             An order of detention can be  challenged on certain grounds, such as, the  order is not passed by the competent authority,  condition precedent for the exercise of power  does not exist; subjective satisfaction arrived  at by the Detaining Authority is irrational,  the order is mala fide; there is non- application of mind on the part of the  Detaining Authority in passing the order; the  grounds are, or one of the grounds is, vague,  indefinite, irrelevant, extraneous, non- existent or stale; the order is belated; the  person against whom an order is passed is  already in jail; the order is punitive in  nature; the order is not approved by  State/Central Government as required by law;  failure to refer the case of the detenu to the  Board constituted under the statute; the order  was quashed/revoked and again a fresh order of  detention was made without new facts, etc.

CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION 35.             A writ of habeas corpus may be prayed  in case of actual detention or imprisonment of  a person if it is illegal or unconstitutional.  But if a person is not actually detained,  obviously a writ of habeas corpus would not  lie. A question, however, may arise whether in  such an eventuality, no remedy at all is  available to an aggrieved person against whom  an order of detention has been made and such  order is still to be executed. In other words,  whether actual detention of a person against  whom an order of detention is made is sine qua  non or condition precedent for approaching a  Court of Law.  36.             On this question, our attention has  been invited by the learned counsel for both  the sides to several decisions of this Court.  Having gone through those decisions, we are of  the view that normally and as a general rule,  an order of detention can be challenged by the  detenu after such order as also the grounds of  detention have been received by him and the  order is executed. In exceptional cases,  however, a High Court or this Court may  exercise extraordinary powers to protect a  person against an illegal invasion of his right  to freedom by protecting him while still he is  free by issuing an appropriate writ, direction  or order including a writ in the nature of

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mandamus questioning an order of detention and  restraining the authorities from interfering  with the right of liberty of an individual  against whom such order is made. 37.             A direct question arose before this  Court in Kiran Pasha v. Government of A.P.,  (1990) 1 SCC 328. In that case, the petitioner  filed a writ petition in the High Court of  Andhra Pradesh under Article 226 of the  Constitution restraining the respondents from  making an order of detention against him. A  Single Judge of the High Court granted interim  relief against taking the petitioner in custody  but the Division Bench held that the order of  detention was already made even prior to filing  of the petition, the petitioner was taken in  custody and the petition had become  infructuous. According to the Division Bench,  the normal rule was that the petitioner should  first surrender to custody and then to move for  a writ of habeas corpus. The aggrieved  petitioner approached this Court. An important  question before this Court was whether a writ  petition for protection of a Fundamental Right  being threatened or in imminent danger was  maintainable. Following K.K. Kochuni v. State  of Madras, 1959 Supp (2) SCR 316 and approving  observations of the High Court of Bombay in  Jayantilal v. State of Maharashtra, (1981) 83  Bom LR 190 as also of the Full Bench of the  High Court of Gujarat in Ved Prakash v. State  of Gujarat, AIR 1987 Guj 253, this Court  observed: "When a right is so guaranteed, it has  to be understood in relation to its  orbit and its infringement. Conferring  the right to life and liberty imposes  a corresponding duty on the rest of  the society, including the State, to  observe that right, that is to say,  not to act or do anything which would  amount to infringement of that right,  except in accordance with the  procedure prescribed by law. In other  words, conferring the right on a  citizen involves the compulsion on the  rest of the society, including the  State, not to infringe that right. The  question is at what stage the right  can be enforced? Does a citizen have  to wait till the right is infringed?  Is there no way of enforcement of the  right before it is actually infringed?  Can the obligation or compulsion on  the part of the State to observe the  right be made effective only after the  right is violated or in other words  can there be enforcement of a right to  life and personal liberty before it is  actually infringed? What remedy will  be left to a person when his right to  life is violated? When a right is yet  to be violated, but is threatened with  violation can the citizen move the  court for protection of the right? The

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protection of the right is to be  distinguished from its restoration or  remedy after violation. When right to  personal liberty is guaranteed and the  rest of the society, including the  State, is compelled or obligated not  to violate that right, and if someone  has threatened to violate it or its  violation is imminent, and the person  whose right is so threatened or its  violation so imminent resorts to  Article 226 of the Constitution, could  not the court protect observance of  his right by restraining those who  threatened to violate it until the  court examines the legality of the  action? Resort to Article 226 after  the right to personal liberty is  already violated is different from the  pre-violation protection. Post- violation resort to Article 226 is for  remedy against violation and for  restoration of the right, while pre- violation protection is by compelling  observance of the obligation or  compulsion under law not to infringe  the right by all those who are so  obligated or compelled. To surrender  and apply for a writ of habeas corpus  is a post-violation remedy for  restoration of the right which is not  the same as restraining potential  violators in case of threatened  violation of the right. The question  may arise what precisely may amount to  threat or imminence of violation. Law  surely cannot take action for internal  thoughts but can act only after overt  acts. If overt acts towards violation  have already been done and the same  has come to the knowledge of the  person threatened with that violation  and he approaches the court under  Article 226 giving sufficient  particulars of proximate actions as  would imminently lead to violation of  right, should not the court call upon  those alleged to have taken those  steps to appear and show cause why  they should not be restrained from  violating that right? Instead of doing  so would it be the proper course to be  adopted to tell the petitioner that  the court cannot take any action  towards preventive justice until his  right is actually violated whereafter  alone he could petition for a writ of  habeas corpus? In the instant case  when the writ petition was pending in  court and the appellant’s right to  personal liberty happened to be  violated by taking him into custody in  preventive detention, though he was  released after four days, but could be  taken into custody again, would it be

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proper for the court to reject the  earlier writ petition and tell him  that his petition has become  infructuous and he had no alternative  but to surrender and then petition for  a writ of habeas corpus? The  difference of the two situations, as  we have seen, have different legal  significance. If a threatened invasion  of a right is removed by restraining  the potential violator from taking any  steps towards violation, the rights  remain protected and the compulsion  against its violation is enforced. If  the right has already been violated,  what is left is the remedy against  such violation and for restoration of  the right".       (emphasis supplied)

38.             Alka Subhash Gadia was indeed a  leading decision of this Court on the point.  This Court in that case stated that if in each  and every case a detenu is permitted to  challenge an order of detention and seek stay  of the operation of the order before execution,  "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". 39.             The Court, after considering several  cases, observed that with a view to prevent  possible abuse of ’draconian measure’ of  preventive detention, the Legislature had taken  care to provide various salutary safeguards  such as (i) obligation to furnish to the detenu  the grounds of detention; (ii) right to make  representation against such action; (iii)  constitution of Advisory Board consisting of  persons who are or have been qualified to be  appointed as Judges of the High Court; (iv)  reference of the case of the detenu to the  Advisory Board; (v) hearing of the detenu by  the Advisory Board in person; (vi) obligation  of the Government to revoke detention order if  the Advisory Board so opines; (vii) maximum  period for which a person can be detained;  (viii) revocation of detention order by the  Government on the representation by the detenu,  etc. 40.             The Court then considered the point as  to denial of a right to the proposed detenu to  challenge the order of detention before the  execution of order and observed: "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

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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 untrammelled by any  external restrictions, and can reach  any executive order resulting in civil  on 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 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 Sibbal 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,

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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 power of judicial  review to interfere with the detention  orders prior to their execution on any  other grounds does not amount to the  abandonment of the said power or to  their denial to the proposed detenu,  but prevents their abuse and the  perversion of the law in question".                    (emphasis supplied)

41.             The above principles have been  reiterated in subsequent cases decided by this  Court. 42.             The learned counsel for the detenu  urged that on the facts and in the  circumstances of the case, the High Court was  right in holding that exception (iii) in Alka  Subhash Gadia got attracted inasmuch the order  was passed for a ’wrong purpose’.  43.             We must concede our inability to  uphold the above contention.  We have been  taken to the judgment of the High Court  impugned in the present appeal. So far as the  authority of the Commissioner of Police is  concerned, the High Court was satisfied that  the order was passed by the authority competent  to exercise the power. It was also clear that  the order was passed ’under the Act’ since the  Detaining Authority was satisfied that the  detention of the writ-petitioner was necessary  ’with a view to preventing him from acting in  any manner prejudicial to the maintenance of  supplies of essential commodities to the  community’ i.e. kerosene. The grounds, in our  opinion, cannot be said to be vague, extraneous  irrelevant or non-existent. (In fact, the  detenu absconded and grounds could not be  served).  It is not even alleged that the order  is sought to be executed against a wrong  person.  44.             According to the High Court, however,  the order was passed for a ’wrong purpose’. It

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was contended before the High Court on behalf  of the detenu that certain offences had been  registered against the detenu and they were  under investigation. The report of the Chemical  Analyzer was not received and yet the Detaining  Authority took into account those cases. It was  further submitted that offences were registered  against the detenu in July, 2003, September,  2005 and May, 2006 and no preventive action was  thought necessary to be taken by the authority  at any stage. It was when the detenu was  arrested in 2006 and a complaint was made  against ’custodial violence’ meted out to him  by police authorities while he was in custody  that with a view to save the skin of erring  police officials that an illegal order of  detention was passed. Thus, it was made for  ’wrong purpose’ and not with a view to  preventing the writ petitioner from indulging  in black marketing of kerosene. The High Court  found ’considerable force’ in the submission.  The High Court, with respect, went wrong in  observing that once a detenu had made  allegations against the police atrocities and  custodial violence, the Detaining Authority  ought to have waited till the inquiry was  conducted and report submitted.  45.             The Court observed; "We find considerable force in this  submission.  A careful perusal of  the events that followed the  registration of Crime No.3022/2006  at P.S. Wadi (Nagpur) indicates that  the petitioner made allegations  against Respondent No. 3 about  custodial violence immediately on  his release.  The said complaint  dated 20.7.2006 was addressed to  Respondent No.2.  This complaint was  forwarded by Respondent No.2 to DCP- 1 Nagpur on 26.7.2006 for necessary  enquiry and action.  A copy of the  communication 26.7.2006 was also  forwarded to the petitioner.   Immediately on the next day i.e. on  27.7.2006 detention order was passed  by Respondent No. 2 even before any  enquiry could be made into complaint  made by the petitioner against  Respondent No. 3.  The detaining  authority should have at least  waited till the enquiry into the  complaint made by the petitioner was  initiated and completed and the  result thereof either in the  positive or in the negative. Instead  of waiting for that, the detaining  authority immediately proceeded to  pass order of detention against the  petitioner which indicates that even  without subjective satisfaction of  the detaining authority hastily  passed the order of detention for  wrong purpose.  This clearly shows  that the detention order against the

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petitioner was passed for a wrong  purpose and on this count the same  deserves to be quashed and set  aside".

46.            The High Court again went wrong in  holding that two parallel and simultaneous  proceedings were not permissible in law.  The  High Court, relying on Biram Chand v. State of  U.P. & Ors., (1974) 4 SCC 573, stated;

"A perusal of the grounds of  detention shows that Crime NO.  76/2006 of P.S. Mouda, District  Nagpur was taken into consideration  by the detaining authority for its  subjective satisfaction. Now, in case  the petitioner wants to make  representation to the detaining  authority against the order of  detention he is required to disclose  his defence which may cause prejudice  to the petitioner in defending the  criminal prosecution.  In Biram Chand  v. State of Uttar Pradesh & Ors., AIR  1974 SC 1161, it has been held that  if the authority concerned makes an  order of detention under the Act and  also prosecutes him in criminal case  on self-same facts, the detaining  authority cannot take recourse to two  parallel and simultaneous proceedings  nor can take re-course to a ground  which is the subject matter of a  criminal trial.  Thus on this ground  also the impugned order of detention  cannot be sustained".

47.             Unfortunately, the attention of the  High Court was not invited to Hardhan Saha,  wherein the Constitution Bench did not approve  the law laid down by this Court in Biram Chand.   Referring to larger Bench decisions, the Court  stated; "Article 14 is inapplicable  because preventive detention and  prosecution are not synonymous. The  purposes are different. The  authorities are different. The  nature of proceedings is different.  In a prosecution an accused is  sought to be punished for a past  act. In preventive detention, the  past act is merely the material for  inference about the future course of  probable conduct on the part of the  detenu.         The recent decisions of this  Court on this subject are many. The  decisions in Borjahan Gorey v. The  State of West Bengal reported in  (1972) 2 SCC 550, Ashim Kumar Ray v.  State of West Bengal reported in  (1973) 4 SCC 76, Abdul Aziz v. The  Distt. Magistrate, Burdwan and Ors.

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reported in (1973) 1 SCC 301 and  Debu Mahto v. The State of West  Bengal reported in (1974) 4 SCC 135  correctly lay down the principles to  be followed as to whether a  detention order is valid or not. The  decision in Biram Chand v. State of  Uttar Pradesh and Ors. reported in  (1974) 4 SCC 573 which is a Division  Bench decision of two learned Judges  is contrary to the other Bench  decisions consisting in each case of  three learned Judges. The principles  which can be broadly stated are  these. 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 CrPC 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 CrPC 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 behavior of  a person based on his past conduct  in the light of the surrounding  circumstances".                (emphasis supplied) 48.             Considering the facts on record in  their entirety, it is clear that many cases had  been filed against the detenu under the 1955  Act. It was alleged that the writ petitioner  was indulging in illegal activities of black  marketing of kerosene which was an essential  commodity.  Those cases had been registered in  2002, 2003, 2005 and 2006. Thus, the action was  taken on the basis of past conduct of the  detenu having reasonable prognosis of future

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behaviour and there was ’live link’ between the  activities of the detenu and the action of  preventive detention to reach subjective  satisfaction by the Detaining Authority.  It  has come on record that the detenu was called  upon to execute a bond for good behaviour under  Sections 110 and 111 of the Code of Criminal  Procedure, 1973. It is, therefore, clear that  the authorities had taken steps under the  relevant law. But even otherwise, in our  opinion, such questions may become relevant and  can be considered after the order of detention  is executed.  49.             Similarly, if the detenu was ill- treated when he was in custody in connection  with any case registered against him under the  1955 Act, or there was custodial violence, it  would not affect detention of the writ- petitioner. Whether there was such custodial  violence and whether police officers had abused  their position can indeed be gone into by a  competent authority or by a Court of law. That  circumstance, however, will not make the order  of detention invalid or for a ’wrong purpose’.  Externment proceedings initiated against the  detenu under Section 59 of the Bombay Police  Act, 1951 also would not make the action  assailable. In our considered opinion,  therefore, this was not a case in which  interference was warranted at pre-execution  stage.  50.             In this connection, it may be  profitable if we refer to a decision of this  Court in Subhash Muljimal Gandhi v. L.  Himingliana & Anr., (1994) 6 SCC 14.  There, an  order of detention was challenged by the detenu  at pre-execution stage.  It was contended by  the detenu tht the contingencies noted in Alka  Subhash Gadia were illustrative and not  exhaustive. It was submitted that there might  well be other contingencies where such order  could be questioned at pre-execution stage.  In  that case also, it was alleged that the detenu  was harassed, humiliated and beaten by  authorities and the case called for grant of  relief before execution of order of detention. 51.             Negativing the contention and  referring to Alka Subhash Gadia and N.K. Bapna  v. Union of India, (1992) 3 SCC 512, the Court  said; "The above principles laid down in  Alka Subhash Gadia have been quoted  with approval by another three-Judge  Bench in N.K. Bapna v. Union of India  ((1992) 3 SCC 512. Bound as we are by  the above judgments, we must hold  that the other contingencies, if any,  must be of the same species as of the  five contingencies referred to  therein. Coming now to Mr.  Jethmalani’s submission, that the  detention order was passed ’for a  wrong purpose’, namely, to harass and  humiliate the appellant by concocting  a false case of smuggling, based

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primarily on a confession obtained  from him after subjecting to him to  assault, illegal detention and  extortion we find that the detaining  authority has denied the allegations  of assault and extortion. Needless to  say these are disputed questions of  fact, which we cannot entertain much  less delve into or decide upon. In  any case, the said fact, even if true  cannot vitiate the order of  detention".       (emphasis supplied) 52.             We may also refer to one more case of  this Court in State of Bihar v. Ram Balak  Singh, (1966) 3 SCR 344. The question which  arose before this Court there related to grant  of bail/parole in a petition filed by a detenu  for a writ of habeas corpus. The Court observed  that there is vital difference between  ’preventive detention’ and ’punitive  detention’. Preventive detention is a  precautionary measure and is intended to pre- empt a person from indulging in illegal or  anti-social activities in order to safeguard  the defence of India, public safety,  maintenance of public order, maintenance of  supplies and services essential to the life of  the community, prevention of smuggling  activities, etc. Therefore, the jurisdiction of  the court to grant relief to the detenu in such  proceedings is indeed narrow and very much  limited. Bail cannot be granted as a matter of  common practice on considerations generally  applicable to cases of punitive detention.  Therefore, whenever the Court is of the view  that prima facie the allegations made in the  writ petition disclose a serious defect in the  order of detention, the wiser and the more  sensible and reasonable course to adopt would  invariably be to expedite the hearing of the  writ petition and deal with the merits without  any delay.                                (emphasis supplied) 53.             The Court, however, held that it  cannot be contended as a proposition of law  that a writ Court has no jurisdiction to make  an interim order giving the detenu the relief  which the Court would be entitled to grant at  the end of the proceedings. If the Court has  jurisdiction to give the main relief to the  detenu at the end of the proceedings, on  principle and in theory, it is not easy to  understand why the Court cannot give interim  relief to the detenu pending the final disposal  of his writ petition. The interim relief which  can be granted in habeas corpus proceedings  must no doubt be in aid of, and auxiliary to,  the main relief. It cannot be urged that  releasing a detenu on bail is not in aid of, or  auxiliary to the main relief for which a claim  is made on his behalf in the writ petition. 54.             The Court then concluded: "In dealing with writ petitions of  this character, the Court has  naturally to bear in mind the object  which is intended to be served by the

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orders of detention. It is no doubt  true that a detenu is detained without  a trial; and so, the courts would  inevitably be anxious to protect the  individual liberty of the citizen on  grounds which are justiciable and  within the limits of their  jurisdiction. But in upholding the  claim for individual liberty within  the limits permitted by law, it would  be unwise to ignore the object which  the orders of detention are intended  to serve. An unwise decision granting  bail to a party may lead to  consequences which are prejudicial to  the interests of the community at  large; and that is a factor which must  be duly weighed by the High Court  before it decides to grant bail to a  detenu in such proceedings. We are  free to confess that we have not come  across cases where bail has been  granted in habeas corpus proceedings  directed against orders of detention  under R. 30 of the Rules, and we  apprehend that the reluctance of the  courts to pass orders of bail in such  proceedings is obviously based on the  fact that they are fully conscious of  the difficulties - legal and  constitutional, and of the other risks  involved in making such orders."                                   (emphasis supplied)

55.             The learned counsel for the respondent  referred to Rajinder Arora v. Union of India &  Ors., (2006) 4 SCC 796. On the facts of the  case, the Court held that the case of the  appellant was covered by exceptions (iii) and  (iv) of Alka Subhash Gadia and the relief was  granted. 56.             Likewise, in K.S. Mangamuthu v. State  of Tamil Nadu & Ors., (2006) 4 SCC 792, there  was non-placement of relevant material before  the Detaining Authority and it was held by this  Court that the order of detention was vitiated.  57.             The Counsel relied upon certain other  decisions wherein the order was quashed and set  aside.  There, however, the order was executed  and the detenu surrendered. As already held by  us, at the second stage, i.e. after the order  of detention is executed and the person is  served with the grounds of detention, he can  challenge such order and Court will decide the  legality or otherwise of the action.  58.             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

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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.  59.             The case on hand, in our considered  opinion, does not fall within the category of  exceptional cases and the High Court committed  an error of law in setting aside the order of  detention at the pre-execution and pre-arrest  stage. The said order, therefore, deserves to  be set aside and is hereby set aside. It is  open to the authorities to execute the order of  detention. It is equally open to the detenu to  challenge the legality thereof on all available  grounds. 60.             Before parting with the matter, we may  clarify that all observations made by us in  this judgment are only for the purpose of  deciding the legality of the order passed by  the High Court and impugned in the present  appeal.  We may not be understood to have  expressed any opinion one way or the other on  the allegations and counter-allegations by the  parties. It is also made clear that if after  the execution of the order, the action is  challenged by the detenu, the Court will decide  the case strictly in accordance with law on its  own merits without being inhibited by any  observations made either in the decision of the  High Court or in the present judgment. 61.             The appeal is accordingly allowed.