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CASE NO.: Appeal (crl.)  223 of 2004

PETITIONER: Union of India                                           

RESPONDENT: Amrit Lal Manchanda and Anr.

DATE OF JUDGMENT: 16/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

(Arising out of SLP(Crl.)No. 3901/2003)

WITH

CRIMINAL APPEAL NO.224/2004 (Arising out of SLP (Crl.)No.3902/2003)

ARIJIT PASAYAT, J.

       Leave granted.  

       In both these two appeals the Union of India questions  legality of the judgment rendered by the Punjab and Haryana  High Court quashing the order of detention passed by the  concerned authority under Section 3(1) of the Conservation  of Foreign Exchange and Prevention of Smuggling Activities  Act, 1974 (in short the ’COFEPOSA’).  

       A brief reference to the factual aspects which is  almost undisputed would suffice.  

       Since the points for adjudication are common to both  the appeals the factual position in SLP(Crl.)No.3901/2003 is  noted for convenience as the only difference between this  case and the other case relates to the dates. The order of  detention was passed under Section 3(1) of COFEPOSA on  31.10.2001. The respondent filed a writ petition before the  Punjab and Haryana High Court on 20.12.2001 and on  21.12.2001 an order staying operation of the detention order  was passed. On 31.5.2002 the High Court decided that it had  territorial jurisdiction to deal with the matter, but  dismissed the writ petition. An application for review was  filed on the ground that though it was noted that the writ  petition was dismissed, in fact the various points urged in  support of the writ application were not considered. The  High Court issued notice on the review petition and pending  consideration stayed the operation of detention order. When  the matter was heard afresh before the High Court it appears  that only one point was urged i.e. passage of time between  the date of the detention order and the date on which the  High Court had taken up the writ petition for consideration.  Relying on a decision of this Court in Sunil Fulchand Shah  v. Union of India and Ors. (2000 (3) SCC 409) the High Court  held the order of detention dated 31.10.2001 to be  unsustainable. However, it permitted the concerned authority  to examine the matter and pass a fresh order if necessary

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and the circumstances so warrant.  

       Learned Additional Solicitor General submitted that the  decision in Sunil Fulchand’s case (supra) had no application  to the present case. In that case the question adjudicated  was whether the period during which the detenu is on parole  can be adjusted from the period of detention indicated in  the detention order. While dealing with that issue the Court  observed that where there is considerable gap of time, the  desirability of sending any detenu to custody has to be  considered in the background of the issue as to whether a  live link for preventive detention still existed. That had  nothing to do with a challenge to the order of detention  before its execution.  

       Mr. Gopal Subramaniam, learned senior counsel appearing  for the respondent submitted that the writ petitioner was  not in custody pursuant to the order of stay passed by the  High Court. The stay order can be treated at par with an  order of parole.  In any event, a live link has to be  established to detain a person in custody by way of  preventive detention. The liberty of a person is sacrosanct  and it should not be affected except on grounds legally  available to the detaining authority.  

       With reference to a decision of this Court in Union of  India and Ors. V. Muneesh Suneja (2001 (3) SCC 92) it is  submitted that the detaining authority has to be satisfied  afresh whether the detention was still necessary. It was  submitted that liberty was given to the detaining authority  and, therefore, it would not be proper to interfere. It is  also pointed out that in the case of four similarly situated  persons relating to the alleged offending acts, detention  orders have been revoked in respect of two and in respect of  two others, the High Court has quashed the orders of  detention and no appeal has been filed.

       So far as these four persons are concerned, learned ASG  submitted that their cases were not considered at the pre- execution stage. All the four persons were in custody and  their cases were considered by the Advisory Board or the  High Court as the case may be. They do not stand at par with  the present respondents.  

Before dealing with rival submissions, it would be  appropriate to deal with the purpose and intent of  preventive detention. Preventive detention is an  anticipatory measure and does not relate to an offence,  while the criminal proceedings are to punish a person for an  offence committed by him. They are not parallel proceedings.  The object of the law of preventive detention is not  punitive but only preventive. It is resorted to when the  Executive is convinced that such detention is necessary in  order to prevent the person detained from acting in a manner  prejudicial to certain objects which are specified by the  concerned law. The action of Executive in detaining a person  being only precautionary, normally the matter has  necessarily to be left to the discretion of the executive  authority. It is not practicable to lay down objective rules  of conduct in an exhaustive manner, the failure to conform  to which should lead to detention. The satisfaction of the  Detaining Authority, therefore, is considered to be of  primary importance, with great latitude in the exercise of  its discretion. The Detaining Authority may act on any  material and on any information that it may have before it.

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Such material and information may merely afford basis for a  sufficiently strong suspicion to take action, but may not  satisfy the tests of legal proof on which alone a conviction  for offence will be tenable. The compulsions of the  primordial need to maintain order in society without which  the enjoyment of all rights, including the right to personal  liberty of citizens would loose all their meanings provide  the justification for the laws of prevention detention. Laws  that provide for preventive detention posit that an  individual’s conduct prejudicial to the maintenance of  public order or to the security of State or corroding  financial base provides grounds for satisfaction for a  reasonable prognostication of possible future manifestations  of similar propensities on the part of the offender. This  jurisdiction has at times been even called a jurisdiction of  suspicion. The compulsions of the very preservation of the  values of freedom of democratic society and of social order  might compel a curtailment for individual liberty. "To,  lose our country by a scrupulous adherence to the written  law" said Thomas Jefferson "would be to lose the law  itself, with life, liberty and all those who are enjoying  with us, thus absurdly sacrificing the end to the needs".  This, no doubt, is the theoretical jurisdictional  justification for the law enabling prevention detention. But  the actual manner of administration of the law of preventive  detention is of utmost importance. The law has to be  justified by striking the right balance between individual  liberty on the one hand and the needs of an orderly society  on the other.  

The question whether the detenu or any one on his  behalf is entitled to challenge the detention order without  the detenu submitting or surrendering to it has been  examined by this Court on various occasions. One of the  leading judgments on the subject is Additional Secretary to  the Govt. of India and Ors. v. Smt. Alka Subhash Gadia and  Anr.  case ((1992 Supp (1) SCC 496). In para 12 of the said  judgment, it was observed by this Court as under:

       "12. This is not to say that the  jurisdiction of the High Court and the  Supreme Court under Articles 226 and 32  respectively has no role to play once the  detention \026punitive or preventive- is shown  to have been made under the law so made for  the purpose. This is to point out the  limitations, which the High Court and the  Supreme Court have to observe while  exercising their respective jurisdiction in  such cases. These limitations are normal and  well known, and are self-imposed as a matter  of prudence, propriety, policy and practice  and are observed while dealing with cases  under all laws. Though the Constitution does  not place any restriction on these powers,  the judicial decision have evolved them over  a period of years taking into consideration  the nature of the legislation or of the  order or decision complained of, the need to  balance the rights and interests of the  individual as against those of the society,  the circumstances under which and the  persons by whom the jurisdiction is invoked,  the nature of relief sought, etc. To  illustrate these limitations, (i) in the

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exercise of their discretionary jurisdiction  the High Court and the Supreme Court do not,  as Courts of appeal or revision, correct  mere errors of law or of facts, (ii) the  resort to the said jurisdiction is not  permitted as an alternative remedy for  relief which may be obtained by suit or  other mode prescribed by statute. Where it  is open to the aggrieved person to move  another Tribunal or even itself in another  jurisdiction for obtaining redress in the  manner provided in the statute, the Court  does not, by exercising the writ  jurisdiction, permit the machinery created  by the statute to be by-passed; (iii) it  does not generally enter upon the  determination of questions which demand an  elaborate examination of evidence to  establish the right to enforce which the  writ is claimed; (iv) it does not interfere  on the merits with the determination of the  issues made by the authority invested with  statutory power, particularly when they  relate to matters calling for expertise,  unless there are exceptional circumstances  calling for judicial intervention, such as,  where the determination is mala fide or is  prompted by the extraneous considerations or  is made in contravention of the principles  of natural justice of any constitutional  provision, (v) the Court may also intervene  where (a) the authority acting under the  concerned law does not have the requisite  authority or the order which is purported to  have been passed under the law is not  warranted or is in breach of the provisions  of the concerned law or the person against  whom the action is taken is not the person  against whom the order is directed, or (b)  when the authority has exceeded its power or  jurisdiction or has failed or refused to  exercise jurisdiction vested in it; or (c)  where the authority has not applied its mind  at all or has exercised its power  dishonestly or for an improper purpose; (vi)  where the Court cannot grant a final relief,  the Court does not entertain petition only  for giving interim relief. If the Court is  of opinion, that there is no other  convenient or efficacious remedy open to the  petitioner, it will proceed to investigate  the case on its merit and if the Court finds  that there is an infringement of the  petitioner’s legal rights, it will grant  final relief but will not dispose of the  petition only by granting interim relief  (vii) where the satisfaction of the  authority is subjective, the Court  intervenes when the authority has acted  under the dictates of another body or when  the conclusion is arrived at by the  application of a wrong test or  misconstruction of a statute or it is not  based on material which is of a rationally  probative value  and relevant to the subject

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matter in respect of which the authority is  to satisfy itself. If again the satisfaction  is arrived at by taking into consideration  material, which the authority properly could  not, or by omitting to consider matters,  which it sought to have, the Court  interferes with the resultant order. (viii)  In proper cases the Court also intervenes  when some legal or fundamental right of the  individual is seriously threatened, though  not actually invaded."  

In Sayed Taher Bawamiya v. Joint Secretary to the  Govt. of India and Ors. (2000 (8) SCC 630), it was observed  by this Court as follows:

       "This Court in Alka Subhash’s case  (supra) was also concerned with a matter  where the detention order had not been  served, but the High Court had  entertained the petition under Article  226 of the Constitution. This Court held  that equitable jurisdiction under  Article 226 and Article 32 which is  discretionary in nature would not be  exercised in a case where the proposed  detenu successfully evades the service  of the order. The Court, however, noted  that the Courts have the necessary power  in appropriate case to interfere with  the detention order at the pre-execution  stage but the scope for interference is  very limited. It was held that the  Courts will interfere at the pre- execution stage with the detention  orders only after they are prima facie  satisfied:

(i)     that the impugned order is not  passed under the Act 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.

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’s case (supra) shows that it is  only in these five types of instances  that the Court may exercise its  discretionary jurisdiction under

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Article 226 or Article 32 at the pre- execution stage. The appellant had  sought to contend that the order which  was passed was vague, extraneous and on  irrelevant grounds but there is no  material for making such an averment  for the simple reason that the order of  detention  and the grounds on which the  said order is passed has not been  placed on record inasmuch as the order  has not yet been executed. The  appellant does not have a copy on the  same, and therefore, it is not open to  the appellant to contend that the non- existent order was passed on vague,  extraneous or on irrelevant grounds".

This Court’s decision in Union of India and Ors. v.  Parasmal Rampuria (1998 (8) SCC 402) throws considerable  light as to what would be the proper course for a person to  adopt when he seeks to challenge an order of detention on  the available grounds like delayed execution of detention  order, delay in consideration of the representation and the  like. These questions are really hypothetical in nature when  the order of detention has not been executed at all and  challenge is made at pre-execution stage. It was observed as  under:

       "In our view, a very unusual order  seems to have been passed in a pending  appeal by the Division Bench of the  High Court. It is challenged by the  Union of India in these appeals. A  detention order under Section 3(1) of  the COFEPOSA Act was passed by the  authorities on 13.9.1996 against the  respondent. The respondent before  surrendering filed a writ petition in  the High Court on 23.10.1996 and  obtained an interim stay of the  proposed order, which had remained un- served. The learned Single Judge after  hearing the parties vacated the ad  interim relief. Thereafter, the  respondent went in appeal before the  Division Bench and again obtained ad  interim relief on 10.1.1997 which was  extended from time to time. The writ  appeal has not been still disposed of.  

       When the writ petition was filed,  the respondent had not surrendered.  Under these circumstances, the proper  order which was required to be passed  was to call upon the respondent first  to surrender pursuant to the detention  order and then to have all his  grievances examined on merits after he  had an opportunity to study the grounds  of detention and to make his  representation against the said grounds  as required by Article 22(5) of the  Constitution."   

 In Sunil Fulchand Shah’s case (supra) a Constitution

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Bench of this Court observed that a person may try to  abscond and thereafter take a stand that period for which  detention was directed is over and, therefore, order of  detention is infructuous. It was clearly held that the same  plea even if raised deserved to be rejected as without  substance. It should all the more be so when the detenu  stalled the service of the order and/or detention in custody  by obtaining orders of Court. In fact, in Sayed Taher’s case  (supra) the fact position shows that 16 years had elapsed  yet this Court rejected the plea that the order had become  stale.                             These aspects were highlighted recently in Hare Ram  Pandey v. State of Bihar and Ors. (2003 (10) JT 114).

       Cases involving challenges to orders of detention  before and after execution of the order stand on different  footings. Courts should not place reliance on decisions  without discussing as to how the factual situation fits in  with the fact situation of the decision on which reliance is  placed. Observations of Courts are neither to be read as  Euclid’s theorems nor as provisions of the statute and that  too taken out of their context. These observations must be  read in the context in which they appear to have been  stated. Judgments of courts are not to be construed as  statutes. To interpret words, phrases and provisions of a  statute, it may become necessary for judges to embark into  lengthy discussions but the discussion is meant to explain  and not to define. Judges interpret statutes, they do not  interpret judgments. They interpret words of statutes; their  words are not to be interpreted as statutes. In London  Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord  Mac Dermot observed:

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

       In Home Office v. Dorset Yacht Co. (1970 (2) All ER  294) Lord Reid said, "Lord Atkin’s speech.....is not to be  treated as if it was a statute definition It will require  qualification in new circumstances." Megarry, J in (1971) 1  WLR 1062 observed: "One must not, of course, construe even  a reserved judgment of even Russell L.J. as if it were an  Act of Parliament." And, in Herrington v. British Railways  Board (1972 (2) WLR 537) Lord Morris said:

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

       Circumstantial flexibility, one additional or different  fact may make a world of difference between conclusions in  two cases. Disposal of cases by blindly placing reliance on

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a decision is not proper.  

       The following words of Lord Denning in the matter of  applying precedents have become locus classicus:

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

***             ***             ***

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

         The High Court does not appear to have considered the  case in the background of whether any relief was available  to the writ petitioner even before the order of detention  was executed. The decision relied upon by it was not  strictly applicable. Merely because the High Court had  granted stay of the order of detention, the respondent  cannot take advantage of the order of stay passed by the  High Court to contend that there is a passage of time. The  petitioner cannot be allowed to have an unfair advantage and  double benefit of his own action, which delayed the  execution of the detention order. In fact in Sayed Taher  Bawamiya’s case (supra) the time gap was nearly 16 years.  The inevitable conclusion therefore is that the High Court  was not justified in quashing the order of detention. The  writ petition filed by the respondent is dismissed. It is  open to the respondent to surrender to custody as was  observed in Parasmal Rampuria’s case (supra) and take such  plea as is available in law. The reliance sought to be  placed on the fate of proceedings taken against others is  wholly inappropriate. The individual role, behavioral  attitude and prognostic proposensthis have to be considered,  person-wise, and no advantage can be allowed to be gained by  the petitioners in these cases based on considerations said  to have been made as to the role of the others and that too  as a matter post detention exercise undertaken so far as  they are concerned. The appeal is allowed. The order of the  High Court is set aside and the writ petition filed before  the High Court shall stand dismissed.  

SLP(Crl.)No. 3902/2003

       The conclusions in SLP(Crl.)No.3901/2003 shall be  equally applicable to this case in view of the fact that the  position in law is the same on the similar fact situation of

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this case as well, though the dates are different.  

The appeal is allowed. The order of the High Court is  set aside and the writ petition filed in the High Court  shall stand dismissed.